Filed 6/16/15 P. v. Oliveras CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                  DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                     G049942

                   v.                                              (Super. Ct. No. 12NF2171)

GALDINO ADOLFO OLIVERAS,                                           OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed with directions.
                   Sharon M. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne
G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
                                              *              *               *
              A jury convicted defendant Galdino Adolfo Oliveras (born in November
1973) of aggravated sexual assault on a child under age 14 and at least 10 years younger
(former Pen. Code, § 269, subd. (a)(4) [version in effect until Sept. 19, 2006]; all
statutory citations are to the Penal Code), three counts of lewd acts on a child under age
14 (§ 288, subd. (a)), and forcible oral copulation (§ 288a, subd. (c)(2)). Oliveras
contends his prison sentence of 35 years to life is cruel and unusual punishment. For the
reasons expressed below, we affirm with directions.


                                              I
                       FACTUAL AND PROCEDURAL BACKGROUND
              Guadalupe L. (born in 1992) testified she lived with her grandparents in
Mexico until the age of 10, when she moved to Orange County with her mother,
stepfather (defendant Olivares), and a younger half brother. Their apartment had two
bedrooms. Guadalupe’s family slept in one bedroom, while other renters occupied the
adjacent bedroom.
              Olivares first touched Guadalupe sexually when she was approximately 12
years old. Her mother and brother were away for the day. Olivares chased her around
the house, where he ultimately grabbed and kissed her. He touched and massaged her
breasts and buttocks over her clothing. The incident lasted about 20 to 30 minutes until
her mother came home, and Olivares ran into the bathroom.
              On subsequent occasions Olivares would “every now and then pass”
Guadalupe and discretely touch her buttocks over her pants. He would sometimes hold
her against the wall inside the bedroom, lift her shirt up, touch and massage her breasts
under her bra, and kiss her. She would try to fight him off. He warned her not to tell
anyone, and that no one would believe her.
              Around the time Guadalupe turned 13 years old, Olivares on numerous
occasions sucked her breasts, often leaving marks or “hickeys.” During this period he

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also began touching her vagina over her pants and rubbing back and forth. This occurred
more than once. Just before Guadalupe turned 14, he began putting his hand under her
underpants and massaging her vagina.
              When Guadalupe was in the eighth grade (age 13), Olivares on several
occasions removed her pants and licked her vagina. She tried to push or kick him away,
but he had his elbows on her legs and held her hands so she could not move. He
sometimes grabbed Guadalupe’s hand and pulled her into the bedroom, locking the door.
These sexual incidents occurred two or three times a week when she was 12 and 13 years
old.
              When Guadalupe was in the ninth grade, Olivares began rubbing his penis
against her vagina skin-to-skin. He did not penetrate her but he would ejaculate on her
bed. She would have to clean the sheets with paper towels, toilet paper, or napkins, and
flush them down the toilet. This happened repeatedly throughout her high school years.
Guadalupe resisted Olivares’s advances, but sometimes she did not physically resist
because she knew she could not get away.
              Beginning when Guadalupe was in the 10th or 11th grades, Olivares forced
her to perform oral sex on him. He left her notes telling her to meet him in the bedroom
and threatened to hit her if she did not lock the door.
              Olivares also made Guadalupe watch pornographic videos with him. He
would tell her to watch scenes and “do that on him.” He also took photos of her breasts
and vagina, gave her lingerie, and directed her to pose for the pictures.
              The sexual incidents continued until Guadalupe moved out of the house
after she turned 18 years old. She did not tell her mother because she felt her mother
would not believe her, feared Olivares would strike her mother because he had assaulted
her in the past. She moved to Mexico and in May 2012 told an aunt and cousin Olivares
had sexually abused her for years. Guadalupe’s mother contacted the Anaheim Police
Department when other family members told her mother about the abuse.

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              A police officer arranged for Guadalupe to telephone Olivares while the
officer listened in. A recording of the call was played for the jury. During the call,
Olivares claimed he never forced or threatened Guadalupe and he believed she was “okay
with it.” Olivares defended his conduct, explaining he believed it was not abuse because
she “agreed to it” and she had “led [him] on.” He noted he “didn’t even rape” her and
further explained she was “like [his] lady” and “belonged to [him],” and “for [him]
everything was good [and] it was beautiful.” Olivares claimed he had not wanted to hurt
her, and he had wanted her to have his child. He denied “disgracing” her by taking her
virginity, and claimed he did not know she acted out of fear. But he agreed she always
told him to leave her alone and that she wanted to leave.
              Guadalupe’s mother testified she found a note in June 2012 written by
Olivares that caused her to suspect he was doing something improper with Guadalupe.
The note read: “Take that bra off because the stitching on the corner makes it look like
you have big areolas and the people might want them and those are mine.” She went to
the police about a month later. Guadalupe had not previously complained that Olivares
had abused her.
              Officers arrested Olivares after the covert call with Guadalupe. They found
digital video recordings containing pornography, digital memory cards with nude photos
of Guadalupe, and with Guadalupe wearing lingerie. Officers interviewed Olivares at the
police station and a recording of the interview was played for the jury. He admitted
sexual activity short of sexual intercourse, but denied Guadalupe performed oral sex on
him. He declared he never forced her and she was “always okay with it,” but
acknowledged he did not think about her age or the consequences of his actions.
              Following a trial in December 2013, the jury convicted Olivares as noted
above. In February 2014, the court imposed an indeterminate prison term of 15 years to
life for aggravated sexual abuse (former § 269, subd. (a)(4) [version in effect until Sept.
19, 2006]; count 1), a consecutive eight-year determinate term for committing lewd acts

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as charged as count 2 (§ 288, subd. (a)), consecutive two-year terms (one-third midterm)
for committing the lewd acts as charged in counts 3 and 4, and a consecutive eight-year
term for the forcible oral copulation violation charged in count 5 (§ 288a, subd. (c)(2)).


                                              II
                                        DISCUSSION
A.   Olivares’s Sentence Is Not Unconstitutionally Cruel or Unusual
              Olivares contends imposition of a sentence of 35 years to life imprisonment
constitutes cruel and unusual punishment under the United States and California
Constitutions because he had no prior criminal record, and his current convictions did not
involve penetration or the infliction of physical injury.
              Punishment that is grossly disproportionate to the offender’s culpability
violates constitutional norms prohibiting “cruel and unusual” (U.S. Const., 8th Amend.)
and “cruel or unusual” (Cal. Const., art. I, § 17) punishment. (Harmelin v. Michigan
(1991) 501 U.S. 957, 997 (Harmelin) (conc. opn. of Kennedy, J.) [Eighth Amendment
“encompasses a narrow proportionality principle”]; People v. Dillon (1983) 34 Cal.3d
441, 478 (Dillon).) Because “in our tripartite system of government it is the function of
the legislative branch to define crimes and prescribe punishments” (In re Lynch (1972)
8 Cal.3d 410, 414), a defendant bears a “considerable burden” to show the requisite
disproportionality. (People v. Wingo (1975) 14 Cal.3d 169, 174.) Consequently, such
findings “have occurred with exquisite rarity in the case law.” (People v. Weddle (1991)
1 Cal.App.4th 1190, 1196.)
              Olivares’s sentence did not violate the Eighth Amendment’s narrow
proportionality principle forbidding extreme sentences that are grossly disproportionate
to the crime. (See Harmelin, supra, 501 U.S. at pp. 997, 1000-1001 (conc. opn. of
Kennedy, J.) [upholding life without parole sentence for possessing a large quantity of
cocaine]; Hutto v. Davis (1982) 454 U.S. 370 [upholding sentence of 40 years for

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possession of marijuana with intent to distribute and distribution of marijuana].) Nor,
considering the nature of the offense and the offender, was this punishment so
disproportionate to the offenses that it “shock[s] the conscience and offend[s]
fundamental notions of human dignity” under the California Constitution. (In re
DeBeque (1989) 212 Cal.App.3d 241, 249; Dillon, supra, 34 Cal.3d at p. 479 [court
examines the “‘nature of the offense and/or the offender, with particular regard to the
degree of danger both present to society’” and asking 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].)
              The record reflects the jury found Olivares committed numerous sexual
offenses against Guadulupe spanning a period of six years, including forcible acts of oral
copulation. In committing these offenses Olivares violated the trust of a child who
looked to him for support. We could not put it more poignantly than Guadulupe did in
her statement contained in the probation report: “[T]his situation caused me to lose
people, including my own mother. I lost my self-esteem to the point where I did not
value my life and didn’t consider myself worthy of being alive.” Guadalupe declared the
emotional damage she suffered “can never be amended [sic].” (See Blow, Surviving
Child Sexual Abuse, N.Y. Times (June 1, 2015) p. A19 [noting “[c]hild sexual abuse is
tragic and traumatic for its survivors,” “it breaks bonds of trust,” violates “the
sovereignty of the self and one’s zone of physical intimacy,” “[i]t is an action of
developmental exploitation,” and “a spiritual act of violence that attacks not only the
body but also the mind” and “can take decades, or even a lifetime, to recover if recovery
is even emotionally available for the survivor”].)
              As the court noted, the “victim . . . was particularly vulnerable. This is a
matter that encompassed multiple molestations of the victim during a period of time
when she was 12 and 13 years old. And they were separate, divisible occasions and
showed a history of conduct that increased in severity over time. [¶] There certainly was

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a level of planning and sophistication shown. You lived in the premises where the
offenses took place. You made sure that your then girlfriend was not present. And you
took advantage of probably one of the most cherished relationships a child can have with
a parent, and that is a position of trust. Not only trust of the victim, but trust of your then
girlfriend who entrusted you to take care of her child.” The court noted it had weighed
aggravating and mitigating circumstances, noting Olivares did not have a prior criminal
record, but that the aggravating factors “far outweigh[ed] any mitigating circumstances.”
              Olivares, in his 30’s when the offenses began, disregarded Guadalupe’s
welfare to satisfy his own desires and rationalized his actions in the delusional belief
Guadalupe reciprocated his affections. Given the repetitive nature of the sexual abuse
over a long period of time, we do not find it particularly significant Olivares had no other
criminal history, a score of zero on the Static-99R actuarial measure of recidivism, and
that family members, friends, and coworkers supported a lenient sentence because he was
devoted to his family and worked hard. The sentence in this case does not exceed those
upheld in similar cases. (See People v. Christensen (2014) 229 Cal.App.4th 781, 807-
808 [defendant sentenced to term of 27 years to life for five counts of lewd acts on a child
under the age of 14 against two victims; court noted lewd conduct is a grave offense and
may have lifelong consequences to the well-being of the child]; People v. Meneses (2011)
193 Cal.App.4th 1087, 1092 [15-years-to-life sentence for man convicted of single lewd
act with his 12-year-old cousin resulting in pregnancy not cruel or unusual]; People v.
Crooks (1997) 55 Cal.App.4th 797, 807 [penalties for single offenses cannot properly be
compared to those for multiple offenses]; People v. Bestelmeyer (1985) 166 Cal.App.3d
520, 531-532 [sentence of 129 years for multiple acts of sexual abuse against 11-year-old
stepdaughter not cruel or unusual].)




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B.   The Trial Court Did Not Order Oliveras to Pay Interest on the Restitution Fine, but
the Trial Court Must Correct Its Minutes to Reflect Interest on Any Victim Restitution
Will Be Calculated from the Date of the Loss
              The trial court imposed a restitution fine of $7,000. It reserved jurisdiction
to award direct victim restitution (§ 1202.4, subd. (f) [court must order the defendant to
make restitution to the victims where the victim has suffered economic loss as a result of
the defendant’s conduct]), noting the probation report was unclear whether Olivares had
made restitution. The court ordered Olivares to pay interest “on the restitution at the rate
of 10 percent, and that will be from the date of loss. [¶] All restitution will be payable
through the Department of Corrections.”
              Olivares argued in his opening brief the court lacked authority to impose
interest on restitution. In his reply brief, he agreed with the Attorney General interest on
direct victim restitution is authorized. (§ 1202.4, subd. (f)(3)(G) [restitution order must
fully reimburse the victim for every determined economic loss including “[i]nterest, at
the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as
determined by the court.”].) But he suggests it is unclear whether the court ordered
interest to be paid on the restitution fine, which is not authorized. We disagree. The
court’s order referenced interest from “the date of loss.” That clearly would not refer to
the fine, which was not triggered by a “loss.” We agree with the Attorney General the
trial court must correct its minute order and the abstract of judgment, which incorrectly
recorded that interest was to be paid was calculated from the date of the sentencing
hearing, rather than the date of loss as the trial court had ordered. (People v. Mitchell
(2001) 26 Cal.4th 181, 185-187.)
                                              III
                                        DISPOSITION
              The judgment is affirmed. The trial court is directed to correct its minutes
dated February 7, 2014 to reflect interest for victim restitution is to be paid as of the date

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of loss. The trial court is directed to prepare an amended abstract of judgment and to
forward a certified copy to the Department of Corrections and Rehabilitation.



                                                ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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