Filed 5/30/14 P. v. Torres CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B249000

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA086731)
         v.

ROBERTO E. TORRES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F.
Marrs, Judge. Affirmed.
                                                         ______
         Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Chung Mar and Jessica C. Owen,
Deputy Attorneys General, for Plaintiff and Respondent.
                                                         ______
       A jury convicted Roberto E. Torres of six counts: (1) two counts of sexual
intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7,
subd. (a))1 (counts 1 and 2); (2) two counts of oral copulation or sexual penetration with
a child 10 years of age or younger (§ 288.7, subd. (b) (counts 3 and 4); (3) one count
of exhibiting harmful matter to a minor (§ 288.2) (count 5); and (4) one count of
commission of a lewd act upon a child under 14 years of age (§ 288, subd. (a)) (count 6).
Counts 1 through 4 and 5 involved Torres’s niece; count 6 involved Torres’s younger
brother. The trial court sentenced Torres to a state prison term of 80 years to life,
consisting of consecutive terms of 25 years to life prescribed by section 288.7,
subdivision (a), for counts 1 and 2 and consecutive terms of 15 years to life prescribed
by section 288.7, subdivision (b), for counts 3 and 4. The court imposed concurrent
sentences of the two-year midterm for the section 288.2 violation in count 5 and of
the six-year midterm for the section 288, subdivision (a), violation in count 6. Torres
appealed, contending that his sentence constitutes cruel and unusual punishment under
the state and federal constitutions. We disagree and thus affirm the judgment.
                                      DISCUSSION
       “Whether a punishment is cruel or unusual is a question of law for the appellate
court, but the underlying disputed facts must be viewed in the light most favorable to the
judgment. [Citations.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) “Fixing
the penalty for crimes is the province of the Legislature, which is in the best position to
evaluate the gravity of different crimes and to make judgments among different
penological approaches. [Citations.] Only in the rarest of cases could a court declare that
the length of a sentence mandated by the Legislature is unconstitutionally excessive.
[Citations.]” (Id. at p. 494.)
       Against this backdrop, under the California Constitution, a sentence may violate
the prohibition against cruel or unusual punishment only if it is so disproportionate to the
crime for which it was imposed that it “shocks the conscience and offends fundamental

1
       Statutory references are to the Penal Code.

                                              2
notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) The appellate
court considers (1) the nature of the offense and the offender, “with particular regard
to the degree of danger both present to society”; (2) how the punishment compares
with punishments for more serious crimes in the jurisdiction; and (3) how the
punishment compares with the punishment for the same offense in other jurisdictions.
(Id. at pp. 425-427.) A defendant must overcome a “considerable burden” to demonstrate
his sentence is disproportionate to his level of culpability. (People v. Wingo (1975)
14 Cal.3d 169, 174.)
       Regarding the nature of the offenses, Torres contends that his sentence of 80 years
to life is cruel and unusual because it is tantamount to a sentence of life without the
possibility of parole despite “the lack of physical evidence, the failure of [victim] Jane
Doe to remember many details, and the failure of [victim] John Doe to report the
molestations for many years.” As to the nature of the offender, Torres maintains that,
because he was in his early thirties when convicted, he “was still young enough that he
could be rehabilitated” and that he deserved a lesser sentence based on the Static 99
report rating him as a moderate-to-low risk for reoffending and the fact his only prior
conviction is for petty theft.
       Looking at the nature of the offenses and the offender, however, demonstrates that
Torres’s sentence is not cruel or unusual. Although Torres complains about the evidence,
as determined by the jury, which evaluated all of the evidence, the nature of the offenses
shows that Torres committed sexual abuses of two child victims who are both family
members. Given the seriousness of the offenses and the violations of trust of two young
family members, neither Torres’s age, his Static 99 rating or his limited conviction record
suggests that his sentence is disproportionate to the crimes he committed. (People v.
Szadziewicz (2008) 161 Cal.App.4th 823, 845 [prior clean record and age “are far from
determinative” when “seriousness of the crime and the circumstances surrounding its
commission substantially outweigh these factors”].) The punishment for the crimes
against his niece, comprising the 80-year-to-life term, is set by the Legislature, which
prescribed a 25-year-to-life penalty for sexual intercourse or sodomy with a child

                                              3
10 years of age or younger under section 288.7, subdivision (a), and a 15-year-to-life
penalty for oral copulation or sexual penetration under section 288.7, subdivision (b).
“[G]reat deference is ordinarily paid to legislation designed to protect children,
who all too frequently are helpless victims of sexual offenses.” (In re Wells (1975)
46 Cal.App.3d 592, 599.) The 80-year-to-life term is commensurate with Torres’s crimes
given the evidence of sexual intercourse, sodomy, oral copulation and sexual penetration
against the niece, the niece’s “devastating” testimony describing some of the acts against
her and Torres’s abuse of multiple victims.2
       As to punishment for other crimes in California, Torres contends that his sentence
for multiple sexual offenses is disproportionate because it is a “far greater” sentence than
that for first degree murder. Torres, however, committed multiple sexual abuse crimes
against children for which the Legislature has prescribed distinct penalties. “[T]he
commission of a single act of murder, while heinous and severely punished, cannot be
compared with the commission of multiple felonies. [Citation.]” (People v. Cooper
(1996) 43 Cal.App.4th 815, 826.) Courts consistently have rejected cruel and
unusual punishment challenges to sentences that exceed a defendant’s life expectancy
when based on the commission of multiple sexual offenses. (See, e.g., People v. Wallace
(1993) 14 Cal.App.4th 651, 666-667; People v. Bestelmeyer (1985) 166 Cal.App.3d 520,
528-532.)
       Torres does not address the penalty in other jurisdictions for similar crimes and
thus does not meet his burden to show cruel or unusual punishment on that basis.
       Torres claims that his sentence does not reflect our country’s “‘evolving standards
of decency’” but does not provide a distinct and separate cruel-and-unusual-punishment
analysis under the federal Constitution. We note that, under the federal Constitution, the
Eighth Amendment’s cruel-and-unusual-punishment clause “contains a ‘narrow
proportionality principle’ that ‘applies to noncapital sentences.’ [Citations.]” (Ewing v.

2
       As noted, the trial court imposed concurrent terms for the offense of exhibiting
harmful matter to a minor in count 5 and the offense of commission of a lewd act upon a
child under 14 years of age in count 6.

                                               4
California (2003) 538 U.S. 11, 20.) In addition, “the principles developed by our [high]
court [regarding cruel and unusual punishment] are similar to those developed by the
United States Supreme Court . . . [and] the federal high court[] [has] reminde[d] that
appellate courts, ‘of course, should grant substantial deference to the broad authority that
legislatures necessarily possess in determining the types and limits of punishments for
crimes[.]’ [Citation.]” (People v. Barrera (1993) 14 Cal.App.4th 1555, 1566, fn. 7.)
Given the narrow proportionality review permitted and the required deference to
legislative sentencing determinations, Torres’s cruel-and-unusual-punishment argument
thus fares no better under the federal Constitution. (Cf. Ashcroft v. Free Speech
Coalition (2002) 535 U.S. 234, 244 [“sexual abuse of a child is a most serious crime and
an act repugnant to the moral instincts of a decent people”].)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                  ROTHSCHILD, Acting P. J.
We concur:



              CHANEY, J.



              JOHNSON, J.




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