Filed 2/4/13; pub. order 3/4/13; reposted 7/18/13 to include mod. filed 3/4/13 prior to pub. order (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                              DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                       G046032

                  v.                                                (Super. Ct. No. 08CF2172)

JAVIER ENRIQUE PEREZ,                                               OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
                  Kurt David Hermansen, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Garrett
Beaumont and Sean Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
                                        *                 *                 *
                  Javier Enrique Perez was convicted of one count of sexual penetration with
a foreign object on nine-year-old Mario, and one count of committing a forcible lewd act
on eight-year-old Andy. In plain English, he raped Mario with a toy light saber, broken
at the tip, and forced Andy into participating in that rape. For these crimes he was
sentenced to two consecutive terms of 15 years to life, for a total of 30 years to life.
Perez was 16 years old when he committed the crimes. He presents four discrete
challenges to the judgment.
                  (1) He claims there was insufficient evidence of force or coercion against
the eight-year old.
                  (2) He claims his sentence is cruel and unusual as shown by recent federal
and state high court case law, specifically Miller v. Alabama (2012) ___ U.S. ___ 132
S.Ct. 2455; Graham v. Florida (2010) ___ U.S. ___, 130 S.Ct 2011; and People v.
Caballero (2012) 55 Cal.4th 262.
                  (3) He claims that under Miller, Graham and Caballero, California‟s one-
strike law is unconstitutional as applied to persons under age 18, because it left the trial
court without any discretion to impose something less than 30 years to life.
                  (4) He claims that under older state high court case law, specifically
People v. Dillon (1983) 34 Cal.3d 441 and In re Lynch (1972) 8 Cal.3d 410, his sentence
is grossly disproportionate to his offenses.1




         1
                   Perez‟s opening and reply briefs conflate some of these four challenges. His briefs treat the
impact of the recent Miller decision in the same heading as they treat the argument about the lack of discretion under
the one-strike law, and treat the argument from traditional disproportionality under its own heading. The point is
only worth mentioning because the reply brief asserts that the Attorney General has “forfeited” the arguments as to
whether there was insufficient evidence of use of force against the nine-year old and whether the one-strike law is
unconstititutional as applied to juveniles. Neither assertion is true, but the conflation in the opening brief of the
argument may have led the Attorney General‟s office to treat those topics under the same heading.


                                                          2
              We affirm. In brief:
              (1) There was substantial evidence Perez used both force and intimidation
against Andy, including forcibly grabbing him and pulling his pants down.
              (2) Miller, Graham and Caballero do not apply to sentences which leave
the possibility of a substantial life expectancy after prison, i.e., are not “de facto” LWOPs
or “functional” LWOPs. Perez will be eligible for parole when he is 47.
              (3) There is no rule of constitutional jurisprudence that requires discretion
to reduce penalties when minors are sentenced for adult crimes to periods which still
leave them a substantial life expectancy after release from prison.
              (4) The punishment here fits the crimes, and the criminal. Perez showed
extreme callousness. He already had a substantial criminal record before the assault on
Mario, and when first interviewed by police, Perez expressed no remorse, but asserted
Mario “liked it.”
                                         I. FACTS
              The facts do not warrant extended recounting, though we must reiterate the
basic principle of appellate review that all conflicts in the evidence and reasonable
inferences from it are drawn in favor of that version of events which most supports the
judgment. (People v. Jones (1990) 51 Cal.3d 294, 314 [“On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.”]; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler
(1973) 9 Cal.3d 156, 160.)
              Mario‟s mother worked as a janitor in Santa Ana, and sometime before 5
p.m. on July 16, 2008, dropped him off at the house of his friend, Andy. Andy‟s brother
Oscar, age 22, was supposed to be baby-sitting the two boys, and Perez was Oscar‟s
friend.


                                              3
              Perez‟s molestations of the two boys occurred in the dining area of the
kitchen, and can be quickly summarized:
              (1) Perez pulled down Mario‟s pants, and held him on the table so he could
not get away. Perez soon told Andy to “get a plastic bag and some pink cream,” and then
Perez put Andy‟s hands in the bag,” then he himself put lotion on the bag, then he “told
[Andy] to put his hands in [Mario‟s butt].” Andy complied. Mario screamed. Perez
laughed. Mario tried to get away but Perez held him.
              (2) Perez next told Andy “to get the light saber,” which had been a present
given Andy on his birthday. The light saber had a broken edge at the very end. Mario
described the toy as “a star wars stick that was broken from the tip.” As Andy would
later characterize Perez‟s words, “he made me” because Andy felt “scared of him.” Perez
put the light saber “inside [Mario‟s] butt.”
              (3) Perez then pulled Andy‟s pants down, and grabbed Andy with both
hands, lifted him up while Mario was still bent over the table, and made Andy “rub [his]
dick up against” Mario‟s “butt.”
              Moments later, Perez used a loud, raised voice to tell Andy not to tell his
mother “what he did to me.” Andy later told Mario, “I‟m sorry . . . I had to do it.”
              Perez was convicted of four counts in all: (1) sexual penetration of the
eight-year old with a foreign object by force (Pen. Code, § 289, subd, (a)(1)); (2) sexual
penetration of a child under age 14 where he was more than seven years older than the
victim (Pen. Code, § 269, subd. (a)(5)); committing a forcible lewd act upon the eight-
year old, a child under the age of 14 (Pen. Code § 288, subd. (b)(1)); and (4) committing
a forcible lewd act upon the nine-year old (also Pen. Code, § 288, subd. (b)(1).) For
purposes of this appeal, counts 1 and 2 are academic. Perez was sentenced to 8 years on




                                               4
count 1 and 15 years on count 2, but each of those sentences was stayed under Penal
Code section 654.2
                                                II. DISCUSSION
A. Substantial Evidence of Force
                  Perez was convicted, in count 4, of violating subdivision (b)(1) of section
288, which applies to forcible lewd acts on a child under 14. As the statute is structured,
lewd acts against children are first described in subdivision (a),3 then there is an
additional penalty set out in subdivision (b) if an act described in subdivision (a) is
accomplished by use of force, violence, duress, menace, or fear of immediate bodily
injury on the victim or another person.4
                  From the statute‟s structure, Perez derives the following argument: Perez‟s
act of lifting up Andy to rub him up against Mario was itself the lewd act under
subdivision (a), so there is no evidence of force different from, or greater than that
needed to accomplish the lifting and simulated sex; accordingly, his crime vis-à-vis Andy
only comes within subdivision (a), which applies to lewd acts against children, and not
within subdivision (b)(1), which applies to forcible lewd acts against children. (Cf.
People v. Soto (2011) 51 Cal.4th 229, 242.)
                  The argument fails because there was substantial evidence of force and
threat of force beyond what was necessary to accomplish the lewd act. Perez argues he



         2
                    All further statutory references are to the Penal Code unless otherwise indicated.
         3
                    “(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd
or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or
any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished
by imprisonment in the state prison for three, six, or eight years.”
          4
                     “(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a
felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.”
                    All further references to “subdivision (a)” or “subdivision (b)(1)” are to section 288 of the Penal
Code.


                                                            5
“did not force Andy to do anything by threats of violence or physical force. For example,
Javier did not force Andy‟s hand into Mario‟s butt; he just grabbed it and put it in slowly.
[] Javier did not force Andy, he just instructed or verbally „made‟ him do it. Javier got
Andy‟s compliance by raising his voice and grabbing Andy.”
              This self-serving précis of the evidence against him pretty much defeats
itself. And, given the evidence that Perez‟s hand was atop Andy‟s on the light saber
when it was used on Mario, and Perez‟ concession that grabbing and holding a child will
satisfy the requirements of subdivision (b)(1) (See, e. g., People v. Babcock (1993) 14
Cal.App.4th 383, 388), there seems little to say here.
              When a sixteen-year-old yanks down the pants of one child and holds him
down and then loudly orders another to commit lewd acts upon him, the implied threat of
force is pretty clear. Given the unspoken but obvious choice of being an accomplice or a
victim, Andy chose accomplice. But to analyze this incident solely in terms of picking
Andy up and rubbing his body against Mario‟s and ignore the frightening assault on
Mario that Andy had just participated in is to blind ourselves to reality and the meaning
of the words “duress, menace, or fear” in the statute. The law neither requires nor
countenances such myopic review.
B. The Roper-Graham-Miller-Caballero Cases
              The issue of how long someone under the age of 18 may be sentenced to
prison has been the subject of considerable judicial attention recently in the wake of
Miller. To simplify analysis, on the next page we provide a chart encapsulating the
Supreme Court cases culminating in Miller and the way the California Courts of Appeal
have dealt with Miller-Graham type challenges (as of the end of 2012).




                                             6
The major Supreme Court cases (in order of doctrinal progression):

Roper v. Simmons (2005) 543 U.S. 551: No death penalty for juvenile offenders under 18, regardless of crime.

Graham v. Florida, supra, ___ U.S. ___, 130 S.Ct 2011: No LWOPs for non-homicide juvenile offenders.

Miller v. Alabama, supra, ___ U.S. ___ 132 S.Ct. 2455: No mandatory LWOPs for homicide juvenile offenders.

People v. Caballero, supra, 55 Cal.4th 262: 110 to life for non-homicide juvenile offender (including attempted
murder) is functional equivalent of LWOP, ergo cruel and unusual within Graham.

Applications after Miller in the California Court of Appeal:

Case name            Age            Crime               Sentence         Result         Rationale

Thomas              15              1st D. Murder       196 to life      Reversed       196 years was functional
12/11/12                            (multiple counts                                    equivalent of LWOP; reversed to
211 Cal.App.4th 987                 in gang shooting)                                   give t/ct chance to use discretion
                                                                                        in light of Miller

Siackasorn          16              Sp. Circ. Murder    LWOP             Reversed       Reversed to give t/ct the chance
12/7/12                                                                                 to reevaluate sentence under
211 Cal.App.4th 909                                                                     190.5(b) w/o seeing
                                                                                        LWOP as presumptive

Argeta               15             Aid/abet Murder     minimum 75       Reversed       AG conceded sentence was
11/13/12                                                                                functional equivalent of LWOP
210 Cal.App.4th 1478




Notable California Appellate Cases Pre-Miller
Mendez               16             carjacking          84 to life       Reversed       Did not reverse under theory
9/1/10                                                                                  reversal was required by
188 Cal.App.4th 47                                                                      Graham; rather, reversed b/c
                                                                                        de facto LWOP for non-homicide
                                                                                        disproportional under traditional
                                                                                        test


In re Nunez         14              kidnapping          LWOP             Reversed       Sentence disproportionate
4/30/09                             for ransom                                          under traditional
173 Cal.App.4th 709                                                                     disproportionality test; Justice
                                                                                        Aronson successful anticipates
                                                                                        Graham rule

Em                  15 yr, 9 mos.   felony murder       2 x 25 to life   Affirmed       Sentence not disproportionate to
3/3/09                              (gang robbery)                                      crime; Justice Moore dissented,
171 Cal.App.4th 964                                                                     emphasized young age and
                                                                                        offender not being shooter




                     These cases follow a remarkably consistent pattern. There is a bright line
between LWOPs and long sentences with eligibility for parole if there is some
meaningful life expectancy left when the offender becomes eligible for parole. We are
aware of – and have been cited to – no case which has used the Roper-Graham-Miller-

                                                             7
Caballero line of jurisprudence to strike down as cruel and unusual any sentence against
anyone under the age of 18 where the perpetrator still has substantial life expectancy left
at the time of eligibility for parole.5
                  How much life expectancy must remain at the time of eligibility for parole
of course remains a matter for future judicial development, but we can safely say that in
the case before us there is plenty of time left for Perez to demonstrate, as the Graham
court put it, “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” (Graham, supra, 130 S.Ct. at p. 2030 [“A State is not
required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide
crime.”] There is no dispute that, given all the credits already served by Perez, he will be
eligible for parole when he reaches age 47. That is, by no stretch of the imagination can
this case be called a “functional” or “de facto” LWOP, and therefore neither Miller,
Graham, nor Caballero apply. And, of course, Roper was a death penalty case and does
not apply for that reason.
C. The One-Strike Law
                  Under Welfare and Institutions Code section 602, subdivision (b)(2)(G), the
prosecutor had no discretion other than to try 16-year-old Perez in adult criminal court.
And, under California‟s one-strike law, the trial judge had no discretion other than to
impose the two 15-year-to-life sentences concurrently. (See § 667.61, subdivisions (b)
[specifying 15-year-to-life penalty] and (i) [requiring consecutive sentences if separate



         5
                   There is one arguable outlier, the pre-Miller case of People v. Blackwell (2011) 202
Cal.App.4th 144, which affirmed an LWOP in the context of a felony murder for a 17-year, based on the lack of any
abuse of discretion under section 190.5, subdivision (b) (establishing a “presumptive penalty of LWOP” when there
is a special circumstance murder). (See id. at pp. 159-160.) We need not discuss in this opinion the degree to which
Blackwell is in tension with Siakasorn, supra, 211 Cal.App.4th 909, which concluded LWOP should not be seen as
the presumptive sentence. For one thing, the United States Supreme Court recently granted review in Blackwell,
vacating its judgment. (See Blackwell v. California (Jan. 7, 2013) --- S.Ct. ----, 2013 WL 57076, 81 USLW 3364.)
For another, even if Blackwell were completely reversed, it would not affect the case before us. This is not a section
190.5-presumption-of-LWOP case, but simply one involving a mandatorily long, but certainly not life, sentence.


                                                          8
victims].) However, as noted by Perez, the trial judge was personally reluctant to impose
the two penalties consecutively, and “probably” would have run the penalties
concurrently if he‟d the authority to do so.6
                  Now, on appeal, beyond the simple application of the Roper-Graham-
Miller-Caballero line, Perez argues that the rationale behind that line of cases – basically
the diminished culpability of minors resulting from their immaturity – implies that
California‟s one-strike law is unconstitutional as applied to minors because it deprives
trial courts of the discretion to take into account what the Miller and Roper majorities
described as the “what „any parent knows‟” factor. (Miller, supra, 132 S.Ct. at p. 2464,
quoting Roper v. Simmons, supra, 543 U.S. at p. 569.)
                  The argument is unpersuasive because it overstates the scope of the Roper-
Graham-Miller-Caballero line. The central focus in the majority opinions in the three
federal high court cases was the fact the offenders had been exposed to the “harshest”
available sentence. As Miller summarized Roper and Graham: “By removing youth
from the balance – by subjecting a juvenile to the same life-without-parole sentence
applicable to an adult – these laws prohibit a sentencing authority from assessing whether
the law‟s harshest term of imprisonment proportionately punishes a juvenile offender.
That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of
a State‟s most severe penalties on juvenile offenders cannot proceed as though they were
not children.” (Miller, supra, 132 S.Ct. at p. 2465, italics added; see Roper, supra, 543


         6
                   Here are the trial judge‟s remarks on the point: “Mr. Carreon [trial defense counsel], if I may just
speak candidly. I‟m not quarreling with your position. Quite frankly, if the court had more discretion in this case it
would appear to me, based upon the defendant‟s age – and not to minimize the incidents that were involved – but
probably a 15-to-life sentence would be more appropriate; however, the question before the court is whether the
court can make a federal constitutional finding that the will of the people as expressed through the legislation with
respect to child molestation victims, whether it comes within the rubric of being a cruel and unusual punishment for
constitutional purposes. I‟m not prepared to make that finding. [¶] I do appreciate what you are saying. This court
has sent a number of people to prison for first degree murder for less than the sentence, and I think that‟s the point
you were trying to make and I‟m mindful of it. But I just can‟t say that for federal and state constitutional purposes
that the sentence amounts to something that would fit the paradigm in which you are suggesting.”


                                                           9
U.S. at p. 568 [“Because the death penalty is the most severe punishment, the Eighth
Amendment applies to it with special force.”].)
                  But this is not an LWOP case. The state‟s most severe penalties are not at
stake here. So, essentially, Perez‟s argument boils down to proposing a judicially-
imposed rule of mandatory discretion, namely that no matter how heinous the crime – or
how mild the penalty otherwise imposed on adults – the federal and state cruel and
unusual punishment clauses require states to hold out some possibility of discretionary
reduction in that penalty to take into account an offender‟s youth. Under the logic of
Perez‟s position, California‟s one-strike law is unconstitutional as applied to him even if
he were given two mandatory consecutive five-year terms and would be out of prison
when he turned 26 – if those were the terms similarly situated adults would receive.
                  This seems to us a question properly addressed to the legislature and we
need only note that, at the moment at least, no high court has articulated a rule that all
minors who commit adult crimes and who would otherwise be sentenced as adults must
have the opportunity for some discretionary reduction in their sentence by the trial court
to account for their youth.7 Perez‟s sentence, albeit long, still leaves plenty of time for
him to be eligible for parole. It passes constitutional muster.
D. Gross Disproportionality
                  Finally, quite apart from Miller, Graham, Roper or Caballero, Perez asserts
his sentence must be reduced under the older California Supreme Court jurisprudence of




        7
                   About two weeks before oral argument, Perez‟s appellate counsel filed a request to file a second
supplemental brief, this one attacking the constitutionality of section 707, subdivision (d) of the Welfare and
Institutions Code. The statute gives prosecutors discretion to charge 16-year-olds in adult criminal court, but is
subject to section 602, subdivision (b) of the Welfare and Institutions Code which, as we have just noted, requires
prosecutors to charge 16-year-olds in adult criminal court who have been accused of, among other crimes, forcible
lewd acts against children. His supplemental briefing provided no authority for the attack on Welfare and
Institutions Code section 707 subdivision (d) other than the Roper-Graham-Miller-Caballero line of cases.


                                                         10
gross disproportionality, as shown primarily in In re Lynch, supra, 8 Cal.3d 410 and
Dillon, supra, 34 Cal.3d 441.
              Successful challenges based on the traditional Lynch-Dillon line are
extremely rare. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [“exquisite
rarity”]; In re Nunez, supra, 173 Cal.App.4th at p. 725 [“rarest of the rare”].) It happened
in Nunez, but that was a case where a 14-year old was given a full LWOP for a non-
homicide crime, with this court successfully anticipating what the federal high court
would soon hand down in Miller. It also happened in 2005, in People v. Carmony (2005)
127 Cal.App.4th 1066, but that was a case of a 25-year-to-life sentence for – certainly in
comparison to the present case – the relatively trivial crime of failing to register as a sex
offender within five working days of the offender‟s birthday. Likewise, Lynch also
involved a life term for a crime that pales in comparison to the present one, second
offense indecent exposure. And Dillon – while certainly not a minor crime in
comparison to the offense here (in Dillon it was felony murder) – was a case that, like
Nunez, successfully anticipated what the federal Supreme Court would later do.
Specifically, in Dillon our high court was simply some 27 years ahead of Graham (no
LWOPs for minors, even in homicide cases).
              The present case certainly is not among those “exquisitely rare” cases
which merit reversal on traditional disproportionality review. The offense was
horrendous, particularly when we take into account the evidence of a broken tip on the
light saber. Mario cried out to be released, and Perez laughed. Perez showed no remorse
in the initial police interview and justified the attack on the nine-year old by insisting the
boy enjoyed it. The probation report noted Perez already had compiled a criminal record:
There were two incidents of auto theft at age 13, and at age 14, he shot a 13-year-old-
victim with a BB gun. The sentence still leaves him with the chance for parole at age 47.
And finally Perez presents no argument or data to the effect that other American


                                              11
jurisdictions impose on 16-year olds significantly more lenient sentences than the ones
given here.
                                     DISPOSITION
              The judgment is affirmed.




                                                BEDSWORTH, ACTING P. J.


WE CONCUR:




IKOLA, J.



THOMPSON, J.




                                           12
           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                    DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G046032

               v.                                    (Super. Ct. No. 08CF2172)

JAVIER ENRIQUE PEREZ,                                ORDER MODIFYING OPINION
                                                     AND DENYING PETITION FOR
    Defendant and Appellant.                         REHEARING; NO CHANGE IN
                                                     JUDGMENT


               The opinion, filed February 4, 2013, is hereby modified in the following
particulars:
               1. On page 1 in the attorney listing, the name “Sean Rodriguez” should be
spelled “Sean Rodriquez.”
               2. On page 6 of the slip opinion, delete the word “loudly” in the first
sentence of the second complete paragraph.
               3. The final sentence of footnote 5 on page 8 of the slip opinion (which
currently reads: “This is not a section 190.5-presumption-of-LWOP case, but simply one
involving a mandatorily long, but certainly not life, sentence.”) should now read: “This
is not a section 190.5-presumption-of-LWOP case, but simply one involving a
mandatorily long, but certainly not mandatory life, sentence.”
               These modifications do not affect the judgment.

                                             13
            The petition for rehearing is DENIED.




                                             BEDSWORTH, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




                                        14
                          CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                   DIVISION THREE


THE PEOPLE,

   Plaintiff and Respondent,                        G046032

              v.                                    (Super. Ct. No. 08CF2172)

JAVIER ENRIQUE PEREZ,                               ORDER GRANTING REQUEST
                                                    FOR PUBLICATION
   Defendant and Appellant.



              Respondent has requested that our opinion in this matter, filed February 4,
2013, be certified for publication. After reviewing the request, we have concluded the
case indeed meets the requirements for publication. Pursuant to California Rules of
Court, rule 8.1105(b), the request is GRANTED.


              The opinion is ordered published in the Official Reports.


              BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.


THOMPSON, J.


                                            15
