Filed 9/8/14 P. v. Ross CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                            C073401

                   Plaintiff and Respondent,                               (Super. Ct. No. 11F07663)

         v.

DERK LESTER ROSS,

                   Defendant and Appellant.




         Defendant Derk Lester Ross was charged with committing a lewd and lascivious
act with an eight-year-old child, his girlfriend’s daughter. (Pen. Code, § 288, subd. (a)—
count one),1 and five separate counts of committing an act of oral copulation or sexual
penetration with the same child when she was between the ages of six and eight
(§§ 288.7, subd. (b), 289—counts two through six). A jury found defendant guilty of all
counts; the trial court sentenced him to state prison for the upper term of eight years on


1 Undesignated statutory references are to the Penal Code.



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count one and five consecutive terms of 15 years to life on counts two through six.
Defendant appeals, claiming his aggregate sentence of 83 years to life is cruel and
unusual punishment because it cannot possibly be served in his lifetime and is not
denominated as life imprisonment without the possibility of parole (LWOP). We
disagree and shall affirm the judgment.

       The facts underlying defendant’s convictions are not relevant to the issue on
appeal, and we shall omit them as a result. We also do not need to add any additional
procedural facts to those described in this introduction.

                                       DISCUSSION

       Defendant argues that all year-to-life sentences that cannot possibly be completed
during the inmate’s lifetime (de facto LWOP’s) are cruel and unusual punishment in
violation of the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const.,
art. I, § 17.)2 “[A]lthough [defendant] has technically forfeited the issue on appeal
because he did not raise the objection below (People v. DeJesus (1995) 38 Cal.App.4th 1,
27), we ‘shall reach the merits under the relevant constitutional standards, in the interest
of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.’ (People
v. Norman (2003) 109 Cal.App.4th 221, 229-230.)” (People v. Russell (2010)
187 Cal.App.4th 981, 993.) We find defendant’s claim meritless, though we recognize
that the sentence imposed is longer than his probable lifespan.3


2 A punishment violates the Eighth Amendment of the United States Constitution if it is
“grossly disproportionate to the severity of the crime.” (Ewing v. California (2003)
538 U.S. 11, 21 [155 L.Ed.2d 108, 117].) A punishment may amount to cruel or unusual
punishment under article I, section 17 of the California Constitution if “it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)
3 We note that defendant raises no cognizable proportionality argument with respect to
his sentence but merely contends that all de facto LWOP sentences are unconstitutional.


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       Defendant first contends his sentence is cruel and unusual because it serves no
legitimate governmental purpose. Defendant relies on the concurring opinion in People
v. Deloza (1998) 18 Cal.4th 585, in which Justice Mosk opined that any sentence longer
than the human lifespan is inherently cruel and unusual. (Id. at pp. 600-602 (conc. opn.
of Mosk., J.).) No published opinion has agreed with Justice Mosk, and California courts
have repeatedly upheld sentences that exceed the defendant’s life expectancy. (People v.
Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan).) Moreover, a de facto LWOP
sentence, though undoubtedly harsh, when warranted, “serves valid penological purposes:
[I]t unmistakably reflects society’s condemnation of defendant’s conduct and it provides
a strong psychological deterrent to those who would consider engaging in that sort of
conduct in the future.” (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd).)

       Second, though defendant acknowledges that several courts have recognized the
validity of de facto LWOP sentences, he invites us to revisit their constitutionality in light
of the Supreme Court’s recent decision in Miller v. Alabama (2012) 567 U.S. ___
[183 L.Ed.2d 407]. Miller held that the Eighth Amendment ban on “ ‘cruel and unusual
punishment’ ” prohibits mandatory LWOP sentences for those under the age of 18 at the
time of their offenses because the attendant characteristics of youth, such as lessened
culpability and a greater capacity for change, may merit imposition of a lesser sentence.
(Id. at p. ___ [183 L.Ed.2d at pp. 414-415] (plur. opn. of Kagan, J., joined by Kennedy,
Ginsburg, Breyer, and Sotomayor, JJ.).) Defendant here was over 35 years old at the
time of these offenses, and the analysis of Miller, which is dependent on a juvenile
offender’s youthful characteristics, is not applicable to adult offenders.

       Indeed, in cases not involving juvenile defendants, a prison sentence of life
without the possibility of parole (or its functional equivalent) may be imposed in an
appropriate case without offending either the state or the federal Constitution. (Harmelin
v. Michigan (1991) 501 U.S. 957, 961, 995 [115 L.Ed.2d 836] [LWOP sentence for


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possession of 672 grams of cocaine not cruel and unusual]; Byrd, supra, 89 Cal.App.4th
at pp. 1375-1376, 1383 [Three Strikes law sentence of 115 years plus 444 years to life for
multiple felony counts with firearm and great bodily injury allegations not cruel or
unusual]; cf. Graham v. Florida (2010) 560 U.S. 48, 82 [176 L.Ed.2d 825, 850] [juvenile
tried as adult may not be sentenced to LWOP or functional equivalent for nonhomicide
offense]; People v. Caballero (2012) 55 Cal.4th 262, 265, 268-269 [same].) And, many
“appellate courts have held that lengthy sentences for multiple sex crimes do not
constitute cruel or unusual punishment.” (People v. Bestelmeyer (1985) 166 Cal.App.3d
520, 531 [129 years]; see, e.g., Retanan, supra, 154 Cal.App.4th at p. 1230 [135 years to
life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132, 1134-1136 [375 years to
life]; see also People v. Poslof (2005) 126 Cal.App.4th 92, 109 [27 years to life for failure
to register as a sex offender].)

       Finally, defendant presents the spurious claim that calling a year-to-life sentence
that cannot be served in a single lifetime anything other than an LWOP “is cruel and
unusual because it creates a legal fiction which necessarily will result in a defendant
dying in prison before he becomes eligible to even seek the parole that is a fictional
component of his sentence.” He argues that imposing a sentence with “a future parole
eligibility date that he can never possibly live to” see is “a taunt and a fiction.” He claims
that “[i]f someone is to be locked up for his entire life, a sentencing judge should
sentence that person to life without parole.” Defendant cites no authority to support his
specious contention that the sentence imposed is cruel and unusual because it does not
bear the name “LWOP,” and we find none. Further, defendant’s claim that the court
should impose an LWOP sentence when the imposed sentence is tantamount to an LWOP
is properly addressed to the Legislature, which establishes the sentencing scheme, and not
this court, which is charged with determining whether the sentence imposed comports




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with the legislative scheme and constitutional limits. Here, the sentence is appropriate, so
defendant’s claim fails.

       Accordingly, we find the sentence imposed by the trial court does not violate
federal or state constitutional bans on cruel and unusual punishment.

                                     DISPOSITION

       The judgment is affirmed.




                                                            BUTZ             , J.



We concur:



      NICHOLSON             , Acting P. J.



      MURRAY                , J.




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