Filed 9/10/14




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G048615, G048616

        v.                                            (Super. Ct. Nos. 06SF0747,
                                                       09CF0222)
SCOTT ANDREW CHRISTENSEN,
                                                      OPINION
    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
                  Law Offices of Ronald A. Ziff, Ronald A. Ziff and Abby Besser Klein for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
              Defendant Scott Andrew Christensen was convicted of multiple counts of
lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). In his first trial,
he was convicted with respect to his acts against one victim, Spencer S., but the jury
deadlocked with respect to his acts against another victim, Joshua K. Defendant argues
the court made various errors in the retrial on the counts pertaining to Joshua. He says
the court erred in admitting both the testimony Joshua gave in the first trial (Evid. Code,
§ 240, subd. (a)(3)) and the evidence of the prior offense against Spencer (Evid. Code, §§
352, 1108). He also contends that his convictions should be reversed due to prosecutorial
misconduct and that his sentence of 27 years to life is excessive.1 We disagree as to each
point and affirm.
                                              I
                                          FACTS
A. BACKGROUND:
              Defendant was a leader at an afterschool daycare program at an elementary
school. The daycare program operated out of portable classrooms on the school campus.
Sometimes, the leaders would show movies and they often would sit on the floor with the
children.
              In 2002 or 2003, when Zachary S. was in the second or third grade,
defendant sat down next to him during a movie. Defendant allegedly grabbed Zachary’s
hand, put it down his own pants underneath his underwear, and placed it on his erect
penis. Defendant asked Zachary if he “lik[ed] it.” Zachary got up, washed his hands, and
sat somewhere else. He did not tell his parents about the matter at the time.




1      In his opening brief, defendant also asserts that the abstract of judgment did not
correctly reflect the sentence imposed by the court. In his appellant’s reply brief,
however, he abandons this claim.

                                              2
              Joshua also attended the daycare program while he was in kindergarten in
2005 and 2006. During a movie, defendant sat next to him and put his hand on his butt,
underneath his underwear. He also tried to touch Joshua’s penis. Joshua also did not
report the matter to his parents at the time.
              A third child who attended the daycare program was Spencer. When
Spencer was six years old, in 2006, defendant came to his house to babysit. While they
were sitting on the couch, defendant put Spencer’s penis in his mouth and sucked on it.
Defendant also put his penis in Spencer’s mouth. Spencer told his mother the next day.
              Spencer’s mother called the police. She also called defendant, who then
admitted the conduct to her. Spencer had an interview with a social worker on August 7,
2006. He reiterated the conduct during the interview.
              Two days later, Joshua’s parents received a letter from the school district
stating that a daycare program counselor had been arrested. Joshua’s father then asked
him if any inappropriate touching had occurred. Joshua initially said, “no,” but later said
that someone had put his hand down his pants and touched his butt and his “front.”
When asked to identify the person, Joshua named defendant. Joshua’s parents reported
the matter to the authorities.
              Sometime in 2006, while living out of state, Zachary’s mother heard that
defendant had been arrested. She asked Zachary whether defendant had done anything to
him, and Zachary said, “no.” About two years later, however, when Zachary was 14, he
disclosed the incident with defendant to his sister. She told their parents. Zachary then
acknowledged the incident, and his parents reported the matter to the police.


B. PROCEDURAL HISTORY:
              Defendant was charged by amended information in People v. Scott Andrew
Christensen (Super. Ct. Orange County, 2013, No. 06SF0747) (First Lawsuit) with four
counts of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)).

                                                3
Counts 1 and 2, for oral copulation of defendant and oral copulation of victim,
respectively, had to do with Spencer. Counts 3 and 4, for first time touching and last time
touching, respectively, pertained to Joshua. It was further alleged, as to counts 1 and 2,
that defendant had had substantial sexual conduct with Spencer. (Pen. Code, § 1203.066,
subd. (a)(8)). It was also alleged, as to all counts, that defendant had committed an
offense specified in Penal Code section 667.61 against more than one victim.
                Spencer and Joshua each testified at the first trial, in March 2008. Joshua
was about seven years old at the time. During the first trial, defendant conceded as to the
Spencer counts, 1 and 2, but not as to the Joshua counts, 3 and 4.
                In April 2008, the jury found defendant guilty of counts 1 and 2, pertaining
to Spencer. It also found true the allegation that defendant had engaged in substantial
sexual conduct with Spencer. The jury deadlocked 10 to two in favor of guilt on counts 3
and 4, pertaining to Joshua, and the court declared a mistrial as to those counts.
Sentencing on counts 1 and 2 was deferred until after the retrial on counts 3 and 4.
                Less than a year later, defendant was charged in People v. Scott Andrew
Christensen (Super. Ct. Orange County, 2013, No. 09CF0222) (Second Lawsuit) with
one count of lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)),
pertaining to Zachary. Thereafter, the First Lawsuit and the Second Lawsuit were
consolidated.
                In February 2012, a second amended information was filed in the
consolidated cases, charging defendant with three counts of lewd acts upon a child under
the age of 14 (Pen. Code, § 288, subd. (a)). Count 1 pertained to Zachary. Counts 2 and
3 pertained to Joshua. It was further alleged, with respect to each count, that defendant
had had substantial sexual conduct with a child under age 14, namely masturbation (Pen.
Code, § 1203.066, subd. (a)(8)). It was also alleged, with respect to each count in both
the First Lawsuit and the Second Lawsuit, that defendant had committed an offense
specified in Penal Code section 667.61 against more than one victim.

                                               4
              In their February 23, 2012 trial brief, the People requested that Joshua be
found unavailable as a witness, pursuant to Evidence Code sections 1291 and 240. The
People represented that Joshua had suffered mentally and emotionally since the time he
testified in the first trial, that he had undergone years of therapy, and that he was only
then recovering emotionally. They further stated Joshua had been diagnosed with
Asperger’s syndrome, and his father feared that if Joshua were required to testify again,
he would suffer substantial emotional, mental and physical trauma. The People requested
that Joshua’s prior testimony be admitted in lieu of current testimony in the retrial.
              The court held an evidentiary hearing on the matter. The People provided
the testimony of Dr. Andrew Schneider, Joshua’s treating physician, Beverly Ann Russ, a
licensed marriage and family therapist who had treated Joshua in the past, and Joshua’s
father. Each of them opined that it would be detrimental to Joshua for him to testify. The
court granted the People’s motion and permitted them to use Joshua’s prior trial
testimony under Evidence Code section 1291.
              The jury found defendant guilty on each of the three counts. It also found
the allegations under Penal Code sections 1203.066, subdivision (a)(8) and 667.61,
subdivisions (b) and (e) true with respect to each count. Defendant was sentenced to a
total of 27 years to life, on the convictions pertaining to acts against Spencer, Zachary,
and Joshua. Defendant appeals.
                                              II
                                       DISCUSSION
A. UNAVAILABILTY OF WITNESS:
              (1) Introduction—
              “‘The United States Supreme Court has established that a defendant’s Sixth
Amendment right to confrontation is a fundamental right, applicable to the states through
the Fourteenth Amendment. [Citation.] The California Constitution now provides a
specific guarantee of the right to confrontation: “The defendant in a criminal cause has

                                              5
the right . . . to be confronted with the witnesses against the defendant.” (Cal. Const., art.
I, § 15.) A similar guarantee is codified in section 686, subdivision 3, of the Penal Code,
which provides that in a criminal action the defendant is entitled “to produce witnesses on
his behalf and to be confronted with the witnesses against him, in the presence of the
court . . . .”’ [Citation.] [¶] A traditional exception to this confrontation requirement
exists where a witness is unavailable and has given testimony at a prior judicial
proceeding against the same defendant at which time the witness was subject to cross-
examination by that defendant. [Citation.]” (People v. Winslow (2004) 123 Cal.App.4th
464, 469.)
                The statutory underpinnings of this exception are found in Evidence Code
section 1291, subdivision (a)(2), which provides: “Evidence of former testimony is not
made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]
. . . [¶] (2) The party against whom the former testimony is offered was a party to the
action or proceeding in which the testimony was given and had the right and opportunity
to cross-examine the declarant with an interest and motive similar to that which he has at
the hearing.”
                A declarant is “unavailable as a witness” if he or she is “[d]ead or unable to
attend or to testify at the hearing because of then-existing physical or mental illness or
infirmity.” (Evid. Code, § 240, subd. (a)(3).) “Expert testimony that establishes that
physical or mental trauma resulting from an alleged crime has caused harm to a witness
of sufficient severity that the witness is physically unable to testify or is unable to testify
without suffering substantial trauma may constitute a sufficient showing of unavailability
pursuant to paragraph (3) of subdivision (a). As used in this section, the term ‘expert’
means a physician and surgeon, including a psychiatrist, or any person described by
subdivision (b), (c), or (e) of Section 1010.” (Evid. Code, § 240, subd. (c), italics added.)
A licensed marriage and family therapist is a person described in Evidence Code section
1010, subdivision (e).

                                                6
              “The burden of proving that a hearsay declarant is unavailable as a witness
is upon the prosecution. [Citation.]” (People v. Williams (1979) 93 Cal.App.3d 40, 51,
disapproved on another point in Coito v. Superior Court (2012) 54 Cal.4th 480.) The
prosecution must prove unavailability by a preponderance of the evidence. (People v.
Williams, supra, 93 Cal.App.3d at p. 51.)
              “[T]he determination whether a witness is unavailable to testify at trial due
to mental illness or infirmity that would cause substantial trauma, is a mixed question of
law and fact, with factual findings subject to a deferential standard of substantial
evidence, and findings of law subject to independent review. [Citation.] Where the trial
court’s decision of a mixed question of fact and law implicates the constitutional right to
confront a witness at trial, we apply de novo review. [Citation].” (People v. Mays (2009)
174 Cal.App.4th 156, 172; see also, People v. Winslow, supra, 123 Cal.App.4th at pp.
470-471.)
              (2) Defendant’s Arguments—
              Defendant contends the court erred in admitting, in the second trial, the
testimony Joshua gave in the first trial. Defendant claims that, because of this error, the
finding on the multiple victim enhancement must be reversed.
              According to defendant, Joshua was alive and not “unavailable” within the
meaning of Evidence Code section 240, subdivision (a)(3), and could have been required
to testify. Defendant emphasizes that the statutory exceptions to the hearsay rule are
narrowly construed (see, e.g., People v. Cogswell (2010) 48 Cal.4th 467 [Evid. Code,
§ 240, subd. (a)(5)]), and he says they do not apply here.
              As defendant points out, the court in People v. Gomez (1972) 26
Cal.App.3d 225 construed Evidence Code section 240, subdivision (a)(3) as meaning
“that the illness or infirmity must be of comparative severity; it must exist to such a
degree as to render the witness’s attendance, or his testifying, relatively impossible and
not merely inconvenient.” (Id. at p. 230.) Defendant states that in the context before us,

                                              7
it was not impossible for Joshua to testify; it would have been merely inconvenient for
him to have suffered the short-lived stress of testifying, so Joshua was not “unavailable”
within the meaning of section 240, subdivision (a)(3).
              Later cases, however, have refined the concept of relative impossibility as
expressed in People v. Gomez, supra, 26 Cal.App.3d 225. As stated in People v.
Winslow, supra, 123 Cal.App.4th 464: “In the context of mental illness or infirmity, the
phrase ‘relatively impossible’ to testify does not mean it is impossible to elicit the
testimony due to insanity or coma or other total inability to communicate. Rather, the
phrase includes the relative impossibility of eliciting testimony without risk of inflicting
substantial trauma on the witness.” (Id. at pp. 471-472, italics added; accord, People v.
Mays, supra, 174 Cal.App.4th at p. 172.)
              (3) Evidence—
              Psychiatrist Dr. Andrew Schneider was Joshua’s treating physician. He had
been treating Joshua for mental illness for approximately 20 months at the time of trial.
Dr. Schneider diagnosed Joshua with Asperger’s syndrome, a form of higher-functioning
autism. He also stated Joshua’s intelligence level was “below average” and he struggled
“with comprehending things to a point where it [could] really affect him emotionally.”
              Dr. Schneider stated that Joshua’s then current level of functioning was
“not very good” and he opined that if Joshua had to testify, it would cause him significant
emotional trauma. He explained that even with medication and regular treatment, Joshua
was “struggling” and “having an extremely hard time controlling his emotional
reactions.” He opined that a lot of Joshua’s behavior was driven by past trauma. Dr.
Schneider believed that sexual trauma was key—specifically the sexual trauma at issue in
the case. He expressed his belief that bringing up the alleged sexual abuse again “would
make things much worse.”




                                              8
               Dr. Schneider further stated he himself was “actually very concerned about
Joshua and how [he was] doing.” He had already discussed with Joshua’s parents the
possibility of removing Joshua from his home, to provide him with 24-hour live-in
treatment. Dr. Schneider said that was “about as bad as it [got.]” He described Joshua as
being “about the worst” emotionally compared to other patients in his practice. Dr.
Schneider opined that if Joshua were required to testify again, the effects would be
“substantial and long-lasting.”
               The court also received testimony from Beverly Ann Russ, a licensed
marriage and family therapist. Russ had been a therapist for more than 30 years and
specialized in trauma cases. She treated Joshua from about August 2006, shortly after the
incident occurred, to January 7, 2009. At that point, Russ felt that they had stabilized the
trauma and it was time to switch Joshua to someone specializing in cognitive behavioral
therapy, because he had ongoing issues. Russ said, for example, during one of the last
sessions she had with Joshua, he displayed an “extensive angry outburst,” in which he
took a box of crayons, broke them in half and threw them at her. Then, he took his arms
and “[swiped] through the play house, crashing the equipment—took about an hour to
clean up.”
               Russ was asked whether there was a change in Joshua’s behavior in April
2008, after Joshua had testified in the first trial. She stated there was “just a complete
regression in his behavior.” On April 16, for example, he would not leave the side of his
mother, who had to accompany him into the therapy room, where he curled up in her lap
and remained in a fetal position for the entire 45-minute session. At an April 30 session,
Joshua spoke very little, and his mother reported that he would not sleep alone and that
he was developing phobias with spiders and flies. Joshua had become very thin and
would not eat, and his parents had made an appointment with a psychiatrist, Dr. Mark
Kozins. Russ stated, with respect to the April 30 session, that Joshua definitely remained
“regressed.”

                                              9
               Russ opined that if Joshua had to testify again, it would “reduce him to a
much lower level of functioning” and would cause “severe regression.” She did not
believe the effects would be short-lived. In addition, Russ anticipated that Joshua would
suffer both academic and social problems at school. She said that it took from April
2008, after the first trial, until January 2009 to get Joshua sufficiently well stabilized just
to be able to switch to a behavioral specialist. His problems had not been resolved at that
point, just stabilized.
               In addition to Russ and Dr. Schneider, Joshua’s father, David, testified.
David said that when then seven-year-old Joshua finished testifying in the first trial, he
grabbed a hold of his father, started crying, and would not let go. Afterwards, Joshua was
scared, slept on his parents’ bedroom floor “in fear,” and “had bouts of anger.” Joshua’s
fears for his safety, nightmares and bouts of anger were “pretty constant for a year,”
David said. David further stated that testifying was very traumatic for Joshua and he
believed it would be “very traumatic,” “devastating,” for him to have to testify again.
               David said that Joshua’s anxiety level, at the time of the second trial, was
very high and that they had to constantly shuffle his medication to get his anxiety under
control. He expressed his opinion that the trauma would not be short-lived, that it might
take him a long time to recover.
               Furthermore, David said Joshua continues to ask when defendant will get
out of jail. David said his own main fear was in having Joshua see defendant again.
               Although Joshua stopped seeing Russ at some point after the first trial, he
then saw psychiatrist Dr. Kozins. Joshua saw Dr. Kozins until he started seeing Dr.
Schneider. David made clear that Joshua was at all times seeing someone, whether a
therapist, psychologist or psychiatrist, from 2006 until the time of the retrial.
               David acknowledged that he had commenced a civil suit with respect to
Joshua’s molestation. However, David testified that he dropped the civil suit “[w]hen he



                                              10
had a deposition.” He told his attorney that he would not have his son testify again given
the traumatic effect on him.
              (4) Analysis—
              Having heard the foregoing testimony, the judge stated he “would have to
put ear plugs in and blinders on to” conclude Joshua would not be traumatized by
testifying again. Defendant, however, contends the evidence was insufficient to
demonstrate that Joshua was “unavailable” within the meaning of Evidence Code section
240, subdivision (a)(3).
              Defendant says that Joshua’s diagnosis is merely Asperger’s syndrome,
which he describes as “a high-functioning and relatively mild form of autism that at most
affects social interactions . . . .” It is not, he contends, “a ‘mental illness’ that rendered
[Joshua] ‘unable to attend or to testify at the hearing,’ within the meaning of Section 240,
subdivision (a)(3).” We can only describe this as a callous and myopic characterization
of the evidence.
              True, Dr. Schneider testified that Joshua suffers from Asperger’s syndrome,
and he described the syndrome as a form of “higher-functioning autism.” He further
stated that persons with Asperger’s syndrome “have extreme deficits in social
interactions and behaviors or areas of interest that are extremely restrictive and
repetitive.” However, Dr. Schneider also testified that he treated Joshua for “mental
illness.”
              In any event, the “Asperger’s” label is not the most important thing here.
Dr. Schneider testified that Joshua’s emotional condition was “about the worst” of any
patient in his practice. Moreover, he opined that Joshua’s problems were rooted in past
sexual trauma and that if Joshua were required to testify again, the effects would be
“substantial and long-lasting.”
              Defendant nonetheless attempts to minimize the testimony. He points out
that Dr. Schneider conceded it would be traumatic for any child to testify about sexual

                                               11
abuse in front of a bunch of adults. Yes, but Joshua was not the average child. He was
already precariously poised. Joshua’s condition was so severe that his treating physician
had already discussed with his parents the possibility of removing him from the family
home and placing him in a facility for 24-hour treatment. Dr. Schneider expressed his
belief that bringing up the alleged sexual abuse again “would make things much worse.”
              Moreover, Russ opined that if Joshua had to testify again, it would “reduce
him to a much lower level of functioning” and he would demonstrate “severe regression.”
She did not believe it would have only short-term effects. Rather, she believed it would
“have some extreme effects later on.”
              Defendant also says the evidence showed “that any emotional trauma
suffered by Joshua following both the alleged molestation and his testimony at the first
trial was transitory . . . .” He says, inter alia, that Joshua’s treatments were terminated
“despite the knowledge that he would have to testify at the first trial;” and that Joshua’s
emotional state after the first trial “had been ‘stabilized,’ to the point that Joshua was
apparently expecting to testify, despite his misgivings, at a civil trial against the school
district.”
              A closer examination of the evidence, however, shows that although
treatments with Russ were terminated in January 2009, Joshua’s treatments continued
thereafter with Dr. Kozins, and subsequently with Dr. Schneider. Indeed, Joshua’s father
testified that Joshua had been provided with continuous treatment by one professional or
another. Furthermore, while it is fair to point out that Joshua’s parents apparently had
considered having Joshua testify at a civil trial, the point of the matter is that, according
to Joshua’s father, they ultimately decided Joshua was not in any condition to testify and
they resolved to settle the litigation rather than put Joshua through the ordeal a second
time.




                                              12
              In short, in the matter before us, we have the testimony of two expert
witnesses—one psychiatrist and one marriage and family therapist—to the effect that
Joshua would be severely traumatized, and suffer a substantial and long-lasting
regression in his condition, were he required to testify again. Consequently, this case is
similar to People v. Winslow, supra, 123 Cal.App.4th 464 [13-year-old sodomy victim]
and People v. Gomez, supra, 26 Cal.App.3d 225 [statutory rape], in which the appellate
courts affirmed determinations that the victims were “unavailable,” within the meaning of
Evidence Code section 240, subdivision (a)(3), based on medical testimony. It is
distinguishable from People v. Williams, supra, 93 Cal.App.3d 40, wherein the appellate
court overturned a finding that a rape victim was unavailable to testify, because of the
lack of medical testimony on the point.
              Substantial evidence, in the form of expert testimony, supports the trial
court’s finding of fact that Joshua would suffer substantial trauma if he had to testify
again. Furthermore, having performed an independent review, we conclude the trial
court properly applied the law to the facts to determine that Joshua was “unavailable,”
within the meaning of Evidence Code section 240, subdivision (a)(3), inasmuch as it
would have been relatively impossible for Joshua to testify without suffering substantial
trauma.


B. EVIDENCE OF PRIOR OFFENSE:
              (1) Introduction—
              “In 1995, the Legislature enacted [Evidence Code] section 1108 to expand
the admissibility of disposition or propensity evidence in sex offense cases. Subdivision
(a) of that section provides in pertinent part that ‘In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by [Evidence Code] Section
1101, if the evidence is not inadmissible pursuant to [Evidence Code] section 352

                                              13
[permitting court to exclude evidence on weighing probative value and prejudicial
impact].’” (People v. Falsetta (1999) 21 Cal.4th 903, 911.) “Available legislative
history indicates section 1108 was intended in sex offense cases to relax the evidentiary
restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be
made aware of the defendant’s other sex offenses in evaluating the victim’s and the
defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions
of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the
defense. [Citation.]” (People v. Falsetta, supra, 21 Cal.4th at p. 911.)
              The Falsetta court continued: “. . . , ‘Our elected Legislature has
determined that the policy considerations favoring the exclusion of evidence of
uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy
considerations favoring the admission of such evidence. The Legislature has determined
the need for this evidence is “critical” given the serious and secretive nature of sex crimes
and the often resulting credibility contest at trial. [Citations.]’ [Citations.]” (People v.
Falsetta, supra, 21 Cal.4th at pp. 911-912.)
              “By reason of [Evidence Code] section 1108, trial courts may no longer
deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful
weighing process under [Evidence Code] section 352. Rather than admit or exclude
every sex offense a defendant commits, trial judges must consider such factors as its
nature, relevance, and possible remoteness, the degree of certainty of its commission and
the likelihood of confusing, misleading, or distracting the jurors from their main inquiry,
its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden
on the defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense. [Citations.]” (People v. Falsetta, supra, 21 Cal.4th at pp. 916-
917.)

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              (2) Procedural Background—
              The People made an Evidence Code section 402 motion2 to admit, pursuant
to Evidence Code section 1360,3 the social worker’s interview of Spencer when he was
six years old. They also expressed an intention to call Spencer to testify. They stated his
testimony was relevant with respect to the multiple victim allegation. The court granted
the motion.
              On a subsequent occasion, the court asked the People about the theory
behind bringing Spencer back to testify. The People responded that the evidence would
be used as Evidence Code section 1108 evidence and also to prove the multiple victim
allegation. The court expressed concern about letting the jury know that defendant had
already been convicted with respect to a different victim. The court also said: “Counts 1
and 2 dealt, in my mind, with more severe conduct than an unlawful touching. You had
oral copulation. In the court’s mind, oral copulation is far more involved than a hand in
the wrong place.”
              In addition, the court expressed concern about the peculiar procedural
posture with two separate cases having been filed and the multiple victim allegation of
the First Lawsuit remaining unresolved. He suggested the possibility of bifurcation. The
court said defendant would not be prejudiced because the jury would not hear about
either oral copulation or convictions. Defense counsel expressed agreement with the
suggestion, as long as the jury would not “somehow find out about the conviction.” The


2      Evidence Code section 402, subdivision (b) provides: “The court may hear and
determine the question of the admissibility of evidence out of the presence or hearing of
the jury; but in a criminal action, the court shall hear and determine the question of the
admissibility of a confession or admission of the defendant out of the presence and
hearing of the jury if any party so requests.”

3      Evidence Code section 1360 makes admissible “a statement made by the victim
when under the age of 12 describing any act of child abuse . . . performed with or on the
child by another . . .” under specified circumstances.

                                            15
court replied: “Oh, no. That’s instant mistrial.” The People agreed that only the
conduct, not the conviction, would be put before the jury.
              Two days later, the court addressed the motion to introduce Evidence Code
section 1108 evidence in the form of testimony from Spencer and his mother. It asked
defense counsel whether he desired to make any comments. Defense counsel made a
perfunctory objection. The People argued that it was propensity evidence that was
clearly admissible under section 1108. The court ruled that the section 1108 evidence
would be admitted.
              (3) Arguments—
              Defendant argues that the trial court, in the retrial of the Joshua counts,
erred on numerous grounds in admitting evidence of prior acts against Spencer. We
disagree, for reasons we shall show.
                            (a) Probative value
              Defendant argues the evidence of the uncharged offenses was irrelevant,
and thus lacking in probative value, because it was completely dissimilar to the evidence
of the charged offenses. We cannot agree there. In the cases of Joshua and Zachary, the
conduct involved defendant brazenly molesting elementary school age boys he was
supervising while in a room in which other children and adults were present—in one case
putting his hand down the pants of the boy and in the other case putting the hand of the
boy down his own pants. In the case of Spencer, the acts involved defendant and a young
boy he was babysitting in the privacy of a home, in which defendant orally copulated the
boy and made the boy orally copulate him. The incidents are all similar in that they are
sex acts against young boys entrusted to his care, some acts involving the touching of the
boy and other acts involving the touching of defendant. Evidence showing that defendant
went even further with a young boy in private than he did with other boys in public is not
lacking in probative value. To the contrary, “evidence of a ‘prior sexual offense is
indisputably relevant in a prosecution for another sexual offense.’ [Citation.] Indeed, the

                                             16
reason for excluding evidence of prior sexual offenses in such cases is not because that
evidence lacks probative value; rather it is because ‘“it has too much.” [Citation.]’
[Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282-283; accord, People v.
Falsetta, supra, 21 Cal.4th at p. 915.)
                            (b) Prejudicial nature
              That ties into defendant’s next point. He says that the Spencer evidence,
which the trial court itself observed was more serious, was inflammatory. Indeed, he
says the People used the evidence to “incite” the jury. He cites a portion of the reporter’s
transcript in which the prosecutor stated during closing argument: “Am I trying to incite
you? Absolutely I am. I’m trying to incite you based on the facts. Am I trying to incite
you? Absolutely I am. I don’t want you to be fooled.”
              However, defendant is loose in his description of the context in which these
remarks were made. The prosecutor observed that defendant contended Zachary and
Joshua were liars who made up stories as suggested to them. In particular, the prosecutor
addressed the issue of how Joshua was questioned and whether it was suggested to him
that he was molested by defendant. The prosecutor described the evidence concerning
Joshua’s disclosure of defendant’s acts, and noted the fact that it was Joshua who
identified defendant as the man who had molested him. The prosecutor emphasized that
defendant’s identity had never been suggested and that it was only after Joshua had
identified him that defendant’s identity was otherwise made known through program
leaders and news reports. After reminding the jury of this evidence, the prosecutor asked
the jurors to “put two and two together” and not to leave their “common sense at the
door.” Then the prosecutor said he was trying to incite the jury “based on the facts,”
whereas he characterized the defense arguments as pure fiction. The prosecutor did not,
as defendant indicates, endeavor to “incite” the jury based on the Spencer evidence.
              Irrespective of whether the prosecutor used the Spencer evidence to incite
the jury, however, defendant maintains that the Spencer evidence should have been

                                             17
excluded as inflammatory. The inflammatory nature of the uncharged conduct is indeed
a factor to be considered. (People v. Branch, supra, 91 Cal.App.4th at pp. 282-283.)
Although the Spencer evidence is more severe, it is not so much so that it should be
excluded without a consideration of other factors or a balancing of factors. (Id. at pp.
282-284.) “[I]t is unlikely that the jury would have been so prejudiced against
[defendant] as a consequence of [the] ‘inflammatory’ testimony that he was denied a fair
trial.” (Id. at pp. 283-284.)
              Defendant disagrees. He says the use of the inflammatory evidence
bolstered the extremely weak case with respect to Joshua. Defendant points out that
Joshua was inconsistent in his statements regarding the number of times the touching
purportedly occurred. Furthermore, Joshua at one point stated that several other boys at
school had told him defendant had touched them inappropriately. However, the parties
stipulated that this information was not true. And, he emphasizes that there was a hung
jury on the Joshua counts in the first trial.
              While this is so, we observe that the jury deadlocked 10 to two in favor of
conviction in the first trial, so it was not a close case. More importantly, the fact that a
child was unclear as to the number of touchings is not surprising under any circumstance.
Finally, the fact that Joshua identified defendant as the perpetrator before defendant’s
identity was disclosed by other means is arguably of greater probative value than the fact
that Joshua erroneously relayed that other boys had said they were touched, too.
                                (c) Confusing the issues and misleading the jury
              Next, defendant argues that both the trial court and defense counsel were
mistaken in failing to disclose to the jury that he had been convicted of the uncharged
offenses with respect to Spencer. He says the failure to make this disclosure may have
increased the chance that the jury punished him for the uncharged offenses. Indeed, it
has been observed that “[i]f the prior offense did not result in a conviction, that fact



                                                18
increases the danger that the jury may wish to punish the defendant for the uncharged
offenses[.]” (People v. Branch, supra, 91 Cal.App.4th at p. 284.)
              However, as the People point out, the jury was instructed with CALCRIM
No. 1191, regarding the use of the evidence of uncharged offenses against Spencer. The
jury was instructed that it was permitted to use that evidence as propensity evidence with
respect to the charged offenses and that the evidence alone did not constitute sufficient
proof that defendant was guilty of a lewd act on a child under age 14. Furthermore, the
possibility of confusing the issues is only one factor involved in the trial court’s
balancing process, as further addressed below.
                             (d) Failure to weigh factors
              Defendant claims there is no evidence to show that the trial court performed
the required balancing of factors. We disagree.
              In ruling that the Evidence Code section 1108 evidence would be admitted,
the court stated: “1108[, subdivision] (a) states that in an action where the defendant is
accused of a sexual offense, evidence of the defendant’s commission of another sexual
offense is not made inadmissible by 1101 if the evidence is not inadmissible pursuant to
352. The court did conduct a 352 analysis in the court’s mind, and . . . that information
from the prior case would be highly probative as to the issues before the court in this
case. And . . . that information is not outweighed by any prejudice. [¶] In the instant
case, we have two alleged victims dealing with sexual offenses. The court case dealt with
one victim with a sexual offense. There is no time limit under 1108. Certainly it’s not
remote in time. But it’s the court’s position that it would be admissible under 1108.”
(Italics added.)
              As the above-referenced quote shows, the court indicated on the record an
awareness that it was required to perform an Evidence Code section 352 analysis
including a weighing of factors and that it had performed that analysis. It further
indicated that the evidence showed a similarity in the various offenses, inasmuch as each

                                              19
alleged offense was a sexual offense, and that the evidence of the uncharged offenses had
probative value. It also mentioned that the uncharged offenses were not remote in time.
The court also indicated that it had considered whether the probative value was
outweighed by prejudice, and had concluded this was not the case, even though it did not
articulate its reasoning on the record.
              As observed in People v. Branch, supra, 91 Cal.App.4th 274, a court has
not abrogated its duty to undertake an analysis under Evidence Code section 352 where
the record shows that the court addressed certain of the factors relevant to a section 352
determination, indicated that it understood it was required to make a section 352
balancing determination, and described the balance required between the probative value
of the evidence and the prejudicial effect of its admission. (People v. Branch, supra, 91
Cal.App.4th at p. 282; see also People v. Lewis (2009) 46 Cal.4th 1255, 1285.)
              “We review a challenge to a trial court’s choice to admit or exclude
evidence under [Evidence Code] section 352 for abuse of discretion. [Citation.] We will
reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of
law. [Citation.]’ [Citation.]” (People v. Branch, supra, 91 Cal.App.4th at p. 282.)
Given this, we cannot say the court erred in admitting the evidence.4


C. PROSECUTORIAL MISCONDUCT:
              In his closing argument, defense counsel addressed the issue whether the
daycare program had deliberately hired a child molester. He said it would make no sense
for the daycare program to have done so. He continued: “Did they hire a person who
turned out to be a child molester? Yes, [defendant] was a child molester. He’s a child
molester. He did a child molest on Spencer S., okay?” However, defense counsel



4       This being the case, we need not address defendant’s argument that the purported
error in admitting the Spencer evidence constituted a due process violation.

                                             20
emphasized that, this notwithstanding, there was no evidence that defendant was a serial
pedophile who had gotten away with it for years.
              Defense counsel further stated: “You don’t have an idea that you have to
send a message to the child molest community . . . about how we don’t like child
molesters. You don’t have to do that. Obviously, nobody likes child molesters.
[Defendant] is a child molester. . . . But . . . that does not make him guilty of every child
molest that ever happened.” He further stated that when defendant “got called by
[Spencer’s mother] in the covert call . . . , [he] did not contest it. He admitted it right
from the start.” Defense counsel continued on by stating defendant was not some “slick
guy who was getting away with child molesting all these years. The first time [he was]
ever accused of child molesting, . . . he admit[ted] it. So he’s not some slick guy.”
              Defense counsel made similar comments later on, including: “He did a bad
thing. He molested Spencer. He’s a child molester. That does not mean he’s guilty of
all the child molests ever that happened at this school. Doesn’t mean he gets to be
accused of doing all these terrible things for years and years. He did a bad thing. He
acknowledged it when the mother called him up.”
              Finally, defense counsel said: “It’s a terrible thing that [defendant] did to
Spencer. [Defendant] has to live with that. It would be a terrible thing to make him live
with something that he didn’t do.”
              The prosecutor responded to these comments in its rebuttal closing
argument. The prosecutor urged the jury not to give defendant “extra points” for copping
out to the fact that he had sucked Spencer’s penis. After all, he had been caught on tape
making the admission. In this context, the prosecutor stated: “Are we going to try him if
he molested all the other kids at the school? That’s not for you to consider. It’s improper
for you to consider. There could be 15 victims out there; there could be 2. There’s only
2 before you. Don’t worry about the other stuff. That’s improper.”



                                              21
              Defendant says these comments constituted prosecutorial misconduct.
However, defense counsel made no objection at trial to the statements he now challenges
on appeal. The People assert that any claim of prosecutorial misconduct is therefore
waived.5 We agree.
              “‘As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety. [Citation.]’ [Citation.] [¶] The foregoing, however, is only
the general rule. A defendant will be excused from the necessity of either a timely
objection and/or a request for admonition if either would be futile. [Citations.] In
addition, failure to request the jury be admonished does not forfeit the issue for appeal if
‘“an admonition would not have cured the harm caused by the misconduct.”’
[Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
              Defendant argues that the issue of prosecutorial misconduct is not waived,
because any objection would have been futile. He claims that requesting the court to
instruct the jury to disregard the statements would be the same as requesting the court to
unring the bell. We disagree. To ask the jury not to speculate on whether there might
have been other victims would have been a simple enough instruction—one the jury
ought to have been able to follow easily. In any event, even if the issue were not waived,
we would hold the statements were not tantamount to prosecutorial misconduct.
              “‘The applicable federal and state standards regarding prosecutorial
misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the
federal Constitution when it comprises a pattern of conduct “so egregious that it infects
the trial with such unfairness as to make the conviction a denial of due process.”’”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally

5      The failure of defense counsel to object is the subject of a companion petition for a
writ of habeas corpus.

                                             22
unfair is prosecutorial misconduct under state law only if it involves “‘“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”
[Citation.]’ [Citations.]” (People v. Hill, supra, 17 Cal.4th at p. 819.)
              “Prosecutors, however, are held to an elevated standard of conduct. . . . A
prosecutor is held to a standard higher than that imposed on other attorneys because of
the unique function he or she performs in representing the interests, and in exercising the
sovereign power, of the state. [Citation.] As the United States Supreme Court has
explained, the prosecutor represents “a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be
done.” [Citation.]’” (People v. Hill, supra, 17 Cal.4th at pp. 819-820.)
              As defendant points out, it is improper for the prosecutor to misstate either
the facts or the law. (People v. Hill, supra, 17 Cal.4th at pp. 830-831.) It may also be
misconduct to make reference to matters outside the record. (People v. Ledesma (1987)
43 Cal.3d 171, 238.) But here, we have a situation where defense counsel called
defendant a “child molester” and said that did not mean he was a “slick guy who was
getting away with child molesting all these years,” or that he was “guilty of all the child
molests ever that happened at this school.”
              The prosecutor simply responded to defense counsel’s comments by
advising the jury that it was improper to consider whether defendant had molested
children other than those at issue in the case. There was no impropriety in doing so.
“[W]hen we consider each of the challenged comments in its context, we simply cannot
conclude that the prosecutor used a method to persuade the jury that was ‘deceptive’ or
reprehensible.’” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another
ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) If anything, his comments
were ameliorative.



                                               23
D. CRUEL AND UNUSUAL PUNISHMENT:
              (1) Introduction—
              Defendant was convicted of a total of five counts of lewd acts upon a child
under the age of 14 (Pen. Code, § 288, subd. (a))—two counts with respect to Joshua, two
counts with respect to Spencer, and one count with respect to Zachary. For the principal
term, the court sentenced defendant to 15 years to life on the first Joshua count, applying
the Penal Code section 667.61, subdivisions (b) and (e) multiple victim enhancement. It
also sentenced defendant to eight years on the second Joshua count, under Penal Code
section 288, subdivision (a), to run consecutively to the principal term. In addition, the
court sentenced defendant to two years on each of the Spencer counts, also to run
consecutively. (Pen. Code, § 1170.) Finally, it sentenced defendant to 15 years to life on
the Zachary count, to run concurrently with the principal term. The total sentence was 27
years to life. The People point out that defendant was 30 at the time of sentencing and
received a sentence that, together with custody credits, will make him eligible for parole
when he is about 53.
              Defendant asserts that, even if this court were to affirm his convictions, it
would still be required to reduce his sentence because 27 years to life constitutes cruel
and/or unusual punishment under the United States and California Constitutions. He
does not argue that the sentencing scheme is unconstitutional per se, but rather that it is
unconstitutional as applied in his case. He emphasizes that the length of the sentence is
grossly disproportionate to the nature of the offenses he committed, especially taking into
the fact that he has no prior criminal record and the offenses did not involve force or
violence.
              At the outset, the People, citing People v. Norman (2003) 109 Cal.App.4th
221, state that defendant’s argument is waived for failure to raise it in the trial court.
Defendant says that is not so, because any failure to raise the point in the trial court



                                              24
would give rise to an ineffective assistance of counsel claim. Waiver aside, we choose to
address the issue on appeal.
                      (2) United States Constitution—
              The Eighth Amendment to the United States Constitution declares:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” The clause has been applied to prohibit both “the imposition of
inherently barbaric punishments” and punishments that are “disproportionate to the
crime.” (Graham v. Florida (2010) 560 U.S. 48, 59.)
              Defendant cites Solem v. Helm (1983) 463 U.S. 277, wherein the Supreme
Court stated “a court’s proportionality analysis under the Eighth Amendment should be
guided by objective criteria, including (i) the gravity of the offense and the harshness of
the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime in other jurisdictions.” (Id.
at p. 292.) He relies on this statement of law without mention or discussion of
subsequent Supreme Court decisions, such as Harmelin v. Michigan (1991) 501 U.S. 957,
Ewing v. California (2003) 538 U.S. 11, Lockyer v. Andrade (2003) 538 U.S. 63, and
Graham v. Florida, supra, 560 U.S. 48.
              In Harmelin v. Michigan, supra, 501 U.S. 957, Justice Scalia, joined by
Chief Justice Rehnquist, stated: “We conclude . . . that Solem was simply wrong; the
Eighth Amendment contains no proportionality guarantee.” (Id. at p. 965.) However, in
his concurring opinion, Justice Kennedy, joined by Justice O’Connor and Justice Souter,
stated, “stare decisis counsels our adherence to the narrow proportionality principle that
has existed in our Eighth Amendment jurisprudence for 80 years.” (Id. at p. 996, first
italics original, second italics added.)
              Thereafter, “in Ewing v. California[, supra,] 538 U.S. 11, a majority of the
United States Supreme Court concluded that in noncapital cases, the Eighth Amendment
either contains only a narrow proportionality principle . . . or that it contains no

                                              25
proportionality principle at all . . . . [Citation.] Under the narrow proportionality
principle recognized by the plurality, the Eighth Amendment does not require strict
proportionality between the offense and the resulting sentence and does not mandate
comparative analysis within or between jurisdictions. [Citation.] Rather, it forbids only
extreme sentences that are grossly disproportionate to the crime. [Citation.] In weighing
the gravity of the defendant’s offenses, a court must consider both his criminal history
and his current felony. [Citation.] The Ewing plurality noted that, outside the capital
context, successful challenges to the proportionality of a particular sentence are
exceedingly rare. [Citation.]” (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 844.)
              More recently, the Supreme Court acknowledged that its precedents had
“not been a model of clarity. [Citation.]” (Lockyer v. Andrade, supra, 538 U.S. at p. 72.)
However, it stated that the “thicket of Eighth Amendment jurisprudence”
notwithstanding, it had been clearly established that “[a] gross disproportionality
principle is applicable to sentences for terms of years.” (Ibid.) Even more recently, it
said: “Embodied in the Constitution’s ban on cruel and unusual punishments is the
‘precept of justice that punishment for crime should be graduated and proportioned to
[the] offense.’ [Citation.]” (Graham v. Florida, supra, 560 U.S. at p. 59.)
              In considering a proportionality challenge to the length of a term-of-years
sentence, “the Court considers all of the circumstances of the case to determine whether
the sentence is unconstitutionally excessive.” (Graham v. Florida, supra, 560 U.S. at p.
59.) The Graham court stated with approval: “The controlling opinion in Harmelin
explained its approach for determining whether a sentence for a term of years is grossly
disproportionate for a particular defendant’s crime. A court must begin by comparing the
gravity of the offense and the severity of the sentence. [Citation.] ‘[I]n the rare case in
which [this] threshold comparison . . . leads to an inference of gross disproportionality’
the court should then compare the defendant’s sentence with the sentences received by
other offenders in the same jurisdiction and with the sentences imposed for the same

                                             26
crime in other jurisdictions. [Citation.] If this comparative analysis ‘validate[s] an initial
judgment that [the] sentence is grossly disproportionate,’ the sentence is cruel and
unusual. [Citation.]” (Id. at p. 60.)
              So, in answer to the challenge of defendant in the matter before us, we start
by comparing the gravity of his offense and the severity of the sentence imposed.
Viewed along a spectrum, we may find murder, mayhem and torture among the most
grave of offenses and petty theft among the least. Considered in this context, lewd
conduct on a child may not be the most grave of all offenses, but its seriousness is
considerable. It may have lifelong consequences to the well-being of the child. We need
look no further than one of the victims here, Joshua, to see the devastating impact.
Defendant’s conduct with respect to Joshua resulted in a mental and emotional state so
severe that the boy was on the verge of being removed from the family home and placed
in a 24-hour care facility.
              Furthermore, defendant’s offenses were multifold. He was convicted not of
one offense, but of five. He molested not one boy, but three. Any one act in isolation
was a serious offense. Cumulatively, without a doubt, his offenses were grave. As stated
in Graham v. Florida, supra, 560 U.S. 48, “‘punishment for crime should be graduated
and proportioned to [the] offense.’ [Citation.]” (Id. at p. 59.) Moreover, as observed in
Ewing v. California, supra, 538 U.S. 11, in determining proportionality, the state’s choice
to deal with repeat offenders in a harsher manner is a penological goal that must be taken
into account. (Id. at p. 29.) Taking these factors into consideration, we cannot conclude
that the penalty is harsh in relation to the gravity of the offenses. “The gross
disproportionality principle reserves a constitutional violation for only the extraordinary
case.” (Lockyer v. Andrade, supra, 538 U.S. at p. 77.) This is not that case.
              (3) California Constitution—
              Article I, section 17, of the California Constitution also proscribes cruel or
unusual punishment. A prison sentence violates article I, section 17, if “it is so

                                             27
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,
fn. omitted.) “Lynch suggests three areas of focus: (1) the nature of the offense and the
offender; (2) a comparison with the punishment imposed for more serious crimes in the
same jurisdiction; and (3) a comparison with the punishment imposed for the same
offense in different jurisdictions. [Citation.] Disproportionality need not be established
in all three areas.” (People v. Norman, supra, 109 Cal.App.4th at p. 230.)
              We start with the first area of focus, with respect to which defendant cites
People v. Dillon (1983) 34 Cal.3d 441 (disapproved on another ground in People v. Chun
(2009) 45 Cal.4th 1172, 1185-1186). In examining the nature of the offense, “the courts
are to consider not only the offense in the abstract —i.e., as defined by the Legislature—
but also ‘the facts of the crime in question’ [citation]—i.e., the totality of the
circumstances surrounding the commission of the offense in the case at bar, including
such factors as its motive, the way it was committed, the extent of the defendant’s
involvement, and the consequences of his acts. [¶] . . . [T]he courts must also view ‘the
nature of the offender’ in the concrete rather than the abstract: although the Legislature
can define the offense in general terms, each offender is necessarily an individual. . . .
This branch of the inquiry therefore focuses on the particular person before the court, and
asks whether the punishment is grossly disproportionate to the defendant’s individual
culpability as shown by such factors as his age, prior criminality, personal characteristics,
and state of mind.” (People v. Dillon, supra, 34 Cal.3d at p. 479.)
              Here, we see that defendant molested several small boys over a period of
several years. The parents of those children had entrusted them to his care and
supervision. He repeatedly breached the trust placed in him. Under the guise of
providing small children with care, he molested them. Defendant acted alone, not cajoled
by others. He brazenly molested children even in a public place, and engaged in more
serious acts when the opportunity for privacy arose. The impact on at least one of those

                                              28
children was so severe, as we have stated, that he suffered a mental and emotional
condition that could result in his removal from the family home for treatment.
              Defendant emphasizes that he had no prior criminal record, before being
convicted for offenses against three different children. However, the timing of the
discovery of the acts, and of the prosecutions and convictions, is pure happenstance. The
crimes were committed over a period of years. In any event, the lack of a prior criminal
record is not determinative. (People v. Martinez (1999) 76 Cal.App.4th 489, 497.) In
short, in considering the nature of the offenses and the offender, we conclude the
punishment imposed upon defendant, one who commits repeated molestations against
small children, is not disproportionate to his culpability.
              Turning to the second area of focus, defendant argues the length of his
sentence exceeds that imposed for more violent and serious crimes in California. He
cites a number of California statutes, only one of which pertains to sexual offenses. That
statute is Penal Code section 264, subdivision (a), imposing a sentence of three, six or
eight years for rape. Defendant omits to mention that Penal Code section 264,
subdivision (c)(1) imposes a sentence of 9, 11, or 13 years for rape of a child under the
age of 14. So, as we can see, the punishment imposed under Penal Code section 288,
subdivision (a), a sentence of three, six, or eight years for a conviction for lewd acts upon
a child under the age of 14, is less severe than the sentence for rape of a child. Defendant
also omits to discuss the fact that his sentence of 27 years to life was imposed not for one
lewd act upon a single victim, but for multiple lewd acts against multiple victims. He
also does not address any parallel sentencing for multiple acts of rape. “The penalties for
single offenses . . . cannot properly be compared to those for multiple offenses . . . .”
(People v. Crooks (1997) 55 Cal.App.4th 797, 807.)
              Of the other statutes defendant cites, the one bearing the most severe
punishment is Penal Code section 190, which he characterizes as imposing a punishment
of 25 years to life for first degree murder. As he duly points out, first degree murder is a

                                              29
more serious crime than lewd conduct upon a child under the age of 14, yet he received a
more severe punishment than 25 years to life. Defendant provides an incomplete
description of the range of punishment available under Penal Code section 190, however.
That statute provides the punishment for first degree murder shall be “death,
imprisonment in the state prison for life without the possibility of parole, or
imprisonment in the state prison for a term of 25 years to life.” In other words, the
punishment for first degree murder, a crime of greater severity than lewd conduct upon a
child, can indeed be far more severe than a sentence of 25 years to life. And once again,
defendant declines to address the fact that he was sentenced to 27 years to life not for a
solitary count against a single victim. Rather, his sentence was imposed because he was
convicted of crimes against three separate victims, and of multiple offenses against some
of them. Consequently, the statute he cites is not comparable. (People v. Crooks, supra,
55 Cal.App.4th at p. 807.)
              In the third area of focus, we examine “a comparison of the challenged
penalty with the punishments prescribed for the same offense in other jurisdictions
having an identical or similar constitutional provision.” (In re Lynch, supra, 8 Cal.3d at
p. 427, italics in original.) “Here the assumption is that the vast majority of those
jurisdictions will have prescribed punishments for this offense that are within the
constitutional limit of severity; and if the challenged penalty is found to exceed the
punishments decreed for the offense in a significant number of those jurisdictions, the
disparity is a further measure of its excessiveness.” (Ibid.)
              Defendant cites the statutes of six other states pertaining to lewd conduct
with children, albeit without discussion of the constitutional provisions of those states.
He observes the punishment under those statutes ranges from four to eight years on the
low end, to five years to life on the high end. He emphasizes that those sentences are far
more lenient than the 15 years to life sentence set forth in Penal Code section 667.61,
subdivision (b). However, defendant acknowledges in a footnote that none of those sister

                                             30
state statutes embodies a multiple victim enhancement. That difference is key. (See
People v. Crooks, supra, 55 Cal.App.4th at p. 807.) Were we comparing similar statutes,
we would compare the sister state statutes to Penal Code section 288, subdivision (a),
establishing a punishment of three, six, or eight years. Defendant’s citations simply do
not show that the punishment inflicted pursuant to Penal Code section 667.61,
subdivision (b) is excessive in comparison with punishments imposed for the same
offense in different jurisdictions. (In re Lynch, supra, 8 Cal.3d at p. 427; People v.
Norman, supra, 109 Cal.App.4th at pp. 231-232.)
                                             III
                                      DISPOSITION
              The judgment is affirmed.




                                                   MOORE, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




                                             31
