Filed 1/27/15 P. v. Barba CA4/1
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D064105

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD240327)

GERARDO BARBA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, David M.

Gill, Judge. Affirmed.

         Joanna McKim, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys

General, for Plaintiff and Respondent.
       A jury convicted Gerardo Barba of two counts of committing a lewd act upon a

child. (Pen. Code,1§ 288, subd. (a).) As to each count, it found true that the child was

under the age of 14 (§ 1203.066, subd. (a)(8)) and Barba committed the offense against

more than one victim under the "One Strike" law (§ 667.61, subds. (b), (c) & (e)). The

jury found him not guilty on one count of committing a lewd act and deadlocked on four

other such counts. The court sentenced Barba to two consecutive terms of 15 years to life

for a total term of 30 years to life in prison, and ordered him to pay certain fees and fines.

       Barba contends the court prejudicially erred by: (1) denying his request for a

continuance; (2) allowing an expert about forensic interviews with children to testify

regarding child sexual abuse accommodation syndrome (CSAAS), and that children lack

the memory tools of adults; (3) sentencing him to two consecutive terms; and (4)

imposing a sentence of 30 years to life, which was assertedly cruel and unusual

punishment. We affirm.

                               FACTUAL BACKGROUND

A.B.'s case

       A.B. testified that in November 2010, when she was approximately nine years old,

her parents had planned to go out for dinner and send her to spend the night at the home

of her grandparents, Barba and his wife. A.B. became upset and begged her parents not

to send her there. She told her parents for the first time that, starting when she was in the

third grade, Barba had touched her breasts and vagina at different times at his home.



1      Statutory references are to the Penal Code unless otherwise stated.
                                              2
A.B. testified that in the different incidents, Barba had touched her both over and under

her underwear. A.B. had not told anybody about the incidents earlier because she was

scared that her family would "split up."2

       A.B.'s father immediately confronted his father, Barba, about A.B.'s claims, and

Barba lowered his head, avoided looking at his son, repeatedly shook his head and denied

the claims. Afterwards, A.B.'s parents cut off further contact with Barba's side of the

family.

       A.B.'s parents contacted the police, who investigated the matter. In December

2010, A.B. disclosed the above incidents to Lisa McCulloch, a forensic interviewer at a

children's hospital.

A.D.'s case

       In January 2012, when A.D. was approximately five years old, she and her mother

attended a party at the home of Barba and his wife, who were A.D.'s uncle and aunt.

A.D. and her cousin were playing a video game in the living room when Barba told A.D.

to sit on his lap. Barba put A.D.'s hand on his penis outside of his clothing, but she

removed her hand. Barba again placed her hand on his penis outside of his clothing and

moved her hand in circles. A.D. told her mother about the incident, and her mother

reported it to law enforcement. In late January 2012, Marisol Olguin, a forensic

interviewer, spoke to A.D., who recounted the incident. During the interview, A.D. did




2    The information alleged the incidents had taken place between May 27, 2007 and
November 11, 2010.
                                             3
not initially disclose Barba's actions. However, after much questioning, A.D. eventually

described what Barba had done.

                                       DISCUSSION

                                             I.

        Barba contends the court violated his fundamental constitutional rights to present a

defense and to have a fair trial by denying his March 7, 2013 request for a continuance of

his trial.

Background

        After Barba lost consciousness in February 2013, defense counsel sought to delay

trial until a medical examination could be completed, which would determine whether

Barba was suffering from dementia. Barba's counsel's attached a declaration to his

continuance motion stating: "Mr. Barba is almost 73 years old. He has been observed by

family members talking to persons who are not there, forgetting simple tasks, losing

consciousness, and staring into space. There are preliminary indications that Mr. Barba

may be suffering from dementia. An examination by a neurologist has been scheduled by

Dr. Rickwa to determine whether in fact Mr. Barba has been suffering from this disease

which affects cognitive functioning. However, the neurologist's examination is

scheduled to take place after the week of March 11, 2013 which is currently set for trial."

        At a March 11, 2013 hearing on the matter, the prosecutor opposed the motion:

"[W]hy is this brought up at the eleventh hour? This case has been in existence, we've

worked hard to get a good jury trial date, and all [of a] sudden this is coming up at the



                                             4
eleventh hour. The People are ready. We want to go forward today. It is a serious case,

yes. The victims have been waiting a long time to go forward with this case."

       At a first hearing on the matter, a calendar judge ascertained that defense counsel

had represented Barba for approximately one year at that point, but had not previously

consulted experts regarding Barba's possible mental health decline; that the first charged

incident had occurred approximately six years ago, and that the last charged incident had

occurred approximately one year ago. The judge denied Barba's motion as untimely,

recommending that Barba revisit the issue with the trial judge.

       On March 14, 2013, the trial judge denied Barba's continuance motion: "Of

course I do understand the defense can argue what seems to be a consistent position,

'It didn't happen, period. But if I did, I didn't have the required intent.' But that's a

difficult position to present to the jury, I think. [¶] So I just don't think that there's any

likelihood that we're depriving [Barba] of the right to present what I would think is a

viable defense . . . . [¶] But, . . . if things change in the next few days, before jeopardy

has attached, then we can reevaluate it."

       At a March 18, 2013 hearing, just before jury selection commenced, defense

counsel renewed the continuance request, explaining that on February 3, 2013, Barba had

lost consciousness and was therefore tested at the hospital. One week before trial,

counsel learned that Barba's primary care doctor had mentioned that Barba possibly was

suffering from dementia. Therefore, defense counsel sought a neuropsychological

evaluation scheduled for April 24, 2013, to determine Barba's mental condition.

Following that evaluation, defense counsel would have to consult a medical expert to

                                               5
assess Barba's mental functioning. Based on that consultation, Barba's possible defense

at trial would be that if he had touched the victims inappropriately, he had lacked the

required specific intent to commit the charged crimes. The court again ruled he had

shown no good cause for a continuance.3

Applicable Law

       A continuance in a criminal case may be granted only for good cause. (§ 1050,

subd. (e).) Whether good cause exists is a question for the trial court's discretion.

(People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court must consider " ' "not only

the benefit which the moving party anticipates but also the likelihood that such benefit

will result, the burden on other witnesses, jurors and the court and, above all, whether

substantial justice will be accomplished or defeated by a granting of the motion." ' "


3      Barba renewed his arguments at a new trial motion. At a June 2013 hearing on the
motion, the court rejected that argument, noting that up until that date, Barba still had not
presented any evidence showing he suffered from dementia: "There's a distinction
between a present—some present aspect of dementia which might affect [Barba's
memory]; that would not provide a defense. That might provide some challenges at trial
if he has a lack of memory, but that wouldn't . . . present any defense, particularly since
these incidents occurred in the past. And . . . I haven't seen any evidence of any
substance at all that at the time of these alleged offenses [Barba] might have been
suffering from some sort of dementia which would rise to the level of providing a defense
to these charges, which do require specific intent. . . . And assuming that the [medical]
appointment that had been made was kept or a similar appointment occurred, I haven't
seen any evidence of any medical opinion, other than . . . I think the primary care
physician said, 'Well, maybe we ought to also get some [psychological evaluation] as to
whether there's some dementia here.' " The court concluded: "Even if there is some
diagnosis of dementia now, I think it's highly unlikely that . . . any professional would be
able to say, 'Well, I can say that four, five, six years ago [Barba's] dementia was such that
it would prevent him from forming the required specific intent. Not the capacity, but in
actuality there was a diminished capacity.' I don't think there's a shred of evidence to
support that."

                                              6
(Ibid.) While a showing of good cause requires that both counsel and the defendant

demonstrate they have prepared for trial with due diligence (ibid.), the trial court may not

exercise its discretion "so as to deprive the defendant or his attorney of a reasonable

opportunity to prepare." (People v. Sakarias (2000) 22 Cal.4th 596, 646.)

       A reviewing court considers the circumstances of each case and the reasons

presented for the request to determine whether a trial court's denial of a continuance was

so arbitrary as to deny due process. (People v. Frye (1998) 18 Cal.4th 1013.) A

defendant has the burden of showing by "affirmative proof . . . that the ends of justice

require a continuance." (Cal. Rules of Court, rule 4.113.) Absent a showing of an abuse

of discretion and prejudice, the trial court's denial does not warrant reversal. (People v.

Barnett (1998) 17 Cal.4th 1044, 1126.)

       Here, there was no abuse of discretion. Barba made his continuance request on the

eve of trial. Although Barba's counsel did not specify the length of the desired

continuance, it is reasonable to assume it would have significantly delayed trial because

one neuropsychological examination was scheduled more than a month beyond the

previously set trial date, with no indication of whether follow-up medical examinations

would be necessary.

       Here, counsel failed to establish on the record that a continuance would have been

useful. A speculative need does not establish good cause for a continuance. (People v.

Beeler (1995) 9 Cal.4th 953, 1004.) As the trial court stated, assuming defense counsel

had obtained evidence that Barba suffered from dementia, Barba's defense based on that

diagnosis would have had to address the speculative matter of whether, or to what extent,

                                              7
a later dementia diagnosis demonstrated Barba had lacked specific intent to commit the

actions against the victims, starting as early as six years previously. The record does not

show Barba manifested symptoms of dementia before February 2013. Moreover, Barba

previously had denied engaging in the alleged criminal conduct. In light of the

speculative nature of Barba's proposed defense, he has not supported his claim that he

suffered prejudice because his continuance motion was denied. "[I]t is not every denial

of a request for more time that violates due process." (Ungar v. Sarafite (1964) 376 U.S.

575, 589.)

                                             II.

                                             A.

       Barba contends the People's expert, Catherine McLennan, was unqualified to

testify about CSAAS because she lacked special knowledge, expertise and formal

education on the subject; therefore, the trial court erred in admitting her testimony. He

adds: "Her testimony also was irrelevant, intruding on the jury's function. There was no

evidence the jury held common myths or misperceptions on the subject. Thus, there was

nothing to dispel. Also, the testimony was not justified on the issue of credibility since

credibility is generally always at issue in any given case." Barba further argues

McLennan's testimony "conveyed the opinion that the jury should accept [the victims']

versions of what happened because their behavior was like those of other victims of child

sexual abuse and thus they must be telling the truth. On this point, the prosecution

elicited McLennan's testimony not to rehabilitate the victims based on the defense, but to

prove [Barba] committed the lewd acts. The defense was not aimed at showing that the

                                             8
victims did not act like other child molestation victims. [Defense] counsel sought to

argue that motives existed for fabrication and the prosecution did not provide enough

evidence to prove [Barba's] guilt beyond a reasonable doubt."

Background

       During in limine proceedings, Barba sought an Evidence Code section 402 hearing

regarding McLennan's qualifications. The court pointed out that McLennan's curriculum

vitae showed she had obtained a master's degree in social work. The prosecutor

elaborated regarding McLennan's qualifications: Since 1985 she has worked at Palomar

Hospital. In her current position, she supervises another forensic interviewer and spends

approximately half of her time interviewing children. McLennan had conducted over

2,000 interviews. During the previous 15 years she had taught courses related to forensic

interviewing. McLennan had testified as an expert in approximately 45 cases in

California.

       The court ruled McLennan's testimony regarding CSAAS was relevant under

Evidence Code sections 210 and 352, and admissible under People v. Bowker (1988) 203

Cal.App.3d 385 (Bowker).

       On direct examination, the prosecutor asked McLennan to state some common

myths and misconceptions about child sexual abuse, starting with disclosure patterns.

McLennan replied that a common misunderstanding relates to "the way in which children

disclose or don't disclose about child sexual abuse," noting that certain studies in the area

establish that it is extremely difficult for children to disclose child sexual abuse, and if

they do, the disclosure is generally delayed. The prosecutor asked McLennan to discuss a

                                               9
"misconception that if young victims don't appear frightened around their abuser, scared

of their abuser, and they continue to socialize with their abusers around the house or in a

social setting, despite being touched, then the described molests did not occur."

McLennan responded: "It's really unusual for a child to make a decision to discontinue a

relationship with an adult, particularly if that adult is a caretaker or is instrumental in that

child's day-to-day life. Kids just don't decide they're not going to be around somebody

anymore, and I would say it's likely that—I think there's a bit of a misconception that in

order to access a child like that and keep them in a relationship, that someone would have

to threaten them or they'd have to be afraid, when in fact very commonly kids enter that

relationship or engage in it initially or allow that to happen because there's been a really

positive aspect to it."

       McLennan testified she did not know the details of the prosecution's case against

Barba, not having received discovery or interviewed the witnesses in this case. She also

stated that her testimony regarding the "myths and misconceptions around child abuse" is

essentially the same in every case.

       The court instructed the jury with an adapted version of CALCRIM No. 332: "A

witness was allowed to testify as an expert and to give an opinion. You must consider the

opinion, but you are not required to accept it as true or correct. The meaning and

importance of any opinion are for you to decide. In evaluating the believability of an

expert witness, follow the instructions about the believability of witnesses generally. In

addition, consider the expert's knowledge, skill, experience, training, and education, the

reasons the expert gave for any opinion, and the facts or information on which the expert

                                               10
relied in reaching that opinion. You must decide whether information on which the

expert relied was true and accurate. You may disregard any opinion that you find

unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may

be asked a hypothetical question. A hypothetical question asks the witness to assume

certain facts are true and to give an opinion based on the assumed facts. It is up to you to

decide whether an assumed fact has been proved. If you conclude that an assumed fact is

not true, consider the effect of the expert's reliance on that fact in evaluating the expert's

opinion. [¶] Testimony of Catherine McLennan was offered and may be considered by

you only for the purpose of understanding and explaining the behavior of the alleged

victim in this case and not as proof that the molestations occurred."

       During closing arguments, defense counsel stated that both victims were subjected

to "suggestive questioning" during their forensic interviews: "I believe the [child

protective services] workers and the forensic interviewers call it funneling, but you've got

to admit that the testimony in this case was tainted, to use a phrase used by Detective

Williams."

Applicable Law

       In Bowker, supra, 203 Cal.App.3d at p. 391, this court considered whether the

People may introduce expert testimony regarding CSAAS in cases in which a defendant

is accused of sexually abusing a child. We concluded that testimony pertaining to

CSAAS is admissible for "the limited purpose of disabusing the jury of misconceptions

as to how child victims react to abuse." (Bowker, at p. 392.) For example, such

testimony may be admissible to "explain [a victim's] delay in reporting the abuse and her

                                              11
last-minute recantation of the charges." (People v. Housley (1992) 6 Cal.App.4th 947,

955.) However, '[i]t is beyond dispute that CSAAS testimony is inadmissible to prove

that a molestation actually occurred.' " (People v. Wells (2004) 118 Cal.App.4th 179,

188.)

Analysis

        The court did not abuse its discretion by denying Barba's motion in limine

regarding CSAAS evidence. As noted, CSAAS evidence addresses the common

reactions of child molestation victims, such as delayed reporting and retraction. (People

v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); see Bowker, supra, 203 Cal.App.3d

at pp. 389, 392-394.)

        Here, as in Bowker, supra, 203 Cal.App.3d 385, McLennan's testimony showed

that the victims' response to child abuse was helpful to explain to the jury behavior that

would otherwise undermine their credibility. Specifically, A.B. delayed a long time

before telling her parents about Barba's touching, which started when she was

approximately nine years old. In A.D.'s case, she was slow to discuss Barba's

inappropriate touching during her forensic interview. Thus, McLennan's testimony was

relevant as it had "some 'tendency in reason to prove or disprove any disputed fact that is

of consequence to the determination of the action.' (Evid. Code, § 210.)" (People v.

Contreras (2013) 58 Cal.4th 123, 152.) Relevant evidence includes evidence related to a

witness's credibility. (Ibid.)

        Based on our review of the record, the probative value of CSAAS evidence was

not substantially outweighed by the danger of misinterpretation identified by Barba. (See

                                             12
Evid. Code, § 352; People v. Stark (1989) 213 Cal.App.3d 107, 114-115.) Moreover, the

court properly instructed the jury that CSAAS evidence was not direct evidence of guilt,

thus minimizing any risk of misinterpretation by the jury. We therefore find no abuse of

discretion in the court's decision to admit CSAAS evidence.

       It is clear from McLennan's curriculum vitae that she had sufficient educational

and professional expertise to provide expert testimony concerning the behavior of child

sexual abuse victims and specifically human memory. (Evid. Code, § 720, subd. (a) ["A

person is qualified to testify as an expert if he has special knowledge, skill, experience,

training, or education sufficient to qualify him as an expert on the subject to which his

testimony relates."].)

                                               B.

       Barba contends McLennan's testimony minimized Barba's defense that there was

insufficient evidence to support the allegations against him. Barba specifically argues

that McLennan's testimony "suggest[ed] that children's credibility must be judged by a

different standard as they are not capable of speculation and their capacity for memory is

significantly less than that of an adult. The inference for the jury was that any lack of

specificity or doubt from the victims' testimony should be excused."

       On appeal, Barba challenges a particular statement McLennan made during direct

examination in response to this question by the prosecutor: "From your training and

experience, say a child has numerous incidents of molest occur to them over a given

amount of time . . . [is it] difficult for a child to recall each time and all the surrounding

details of the molest?" McLennan replied: "If it's something that's happened in a very

                                               13
similar way over a long period of time, usually what happens is you'll hear the child

begin to lapse into saying things like, 'Well, it was always this way,' or 'He would do

this,' and it's really hard to get that like individual thing out because it all boils down to

kind of what we as adults refer to as the gist of it. If you do something all the same time

and I ask you about it, you'll start picking through your memory about, 'Let me think a

minute. Usually Friday nights we're together.' And so I would say, you know, 'Friday

nights, maybe. That would be the more likely time it would happen.' Kids don't do that.

Kids don't speculate. They don't have that ability. They also don't have the memory

tools that an adult has."

       Defense counsel objected to that response as lacking foundation, arguing

McLennan did not have expertise regarding human memory. The court overruled the

objection, stating that defense counsel could address that matter on cross-examination.

Defense counsel cross-examined McLennan: "With regards to training on the human

memory, what does that entail? What kind of formal training have you had in that area?"

She replied, "[A]s it applies to interviewing, a portion of our training for forensic

interviewing is devoted in part to the way in which we as people develop memory

because it's important. The interviewer's job in part is to try to cue the child's memory

about what it is we want to hear about without contaminating or spoiling it, and so to the

degree that I need to understand how memory develops in order to accomplish my

forensic interviewing task, we do talk about memory development in forensic

interviewing classes, and I think you'll find that as part of every forensic interviewing

training of any length."

                                               14
       Here, counsel took the opportunity to cross-examine McLennan regarding her

studies on human memory. He did not thereafter renew his argument her testimony

lacked foundation. She did not testify that the victims' accounts were accurate or that

Barba had committed the crimes. We conclude that the trial court did not abuse its

discretion in admitting McLennan's expert testimony. In any event, we conclude that it is

not reasonably probable that Barba would have received a more favorable outcome

absent McLennan's testimony regarding children's memory. (People v. Watson (1956) 46

Cal.2d 818, 836.) We note that the jury acquitted Barba and deadlocked on other

charges. This indicates the jury was conscientious and decided the case based only on

those portions of the victims' evidence that it believed supported each specific allegation.

                                            III.

       Barba challenges his sentence on two grounds. He first contends the court abused

its discretion by imposing consecutive terms on him because it used a circumstance that

had already resulted in his enhanced sentence, namely the multiple victims allegations of

section 667.61, to justify consecutive sentences. He further argues the court "failed to

properly weigh applicable mitigating circumstances, e.g., [his] advanced age, 73 years

old, the lack of force or violence during commission of the offenses, the lack of criminal

history."

Background

       In their sentencing brief, the People argued Barba should be sentenced to two

consecutive terms of 15 years to life each, pointing to circumstances in aggravation that

the victims were particularly vulnerable based on their ages and family relationship with

                                             15
Barba; he carried out the crimes in a manner suggesting planning, sophistication or

professionalism; and he took advantage of his position of trust or confidence to commit

the offenses. The People stated that under California Rules of Court, rule 4.425, the

crimes and their objectives were predominantly independent of each other and Barba

committed them at different times or separate places. The crimes were not committed so

closely in time and place as to indicate a single period of aberrant behavior.

       The probation officer recommended consecutive sentences for Barba, listing as a

circumstance in mitigation that he had had no prior criminal history, and considering as

circumstances in aggravation that the victims were particularly vulnerable given their

young ages and inability to defend themselves; Barba took advantage of his position of

trust and confidence over them; and he did not appear remorseful during a probation

interview.

       In sentencing Barba, the court stated it had read the probation officer's report and

the letters written by Barba's family members. It rejected Barba's constitutional argument

regarding the multiple victims component of section 667.61, took into account that there

were two separate victims, and noted that Barba had committed lewd acts on the second

victim after sufficient time had passed for Barba to have reconsidered his actions, but he

failed to do so. The court also noted that Barba was advanced in years: "I don't mean to

seem uncaring about it, but at his—you know, at his age, one wonders whether, as a

practical matter, it's not—how much difference it's likely to make. But that's—I'm not

making my decision based on that ground."



                                             16
                                              A.

       Barba was convicted of two counts of lewd conduct (§ 288, subd. (a)), an offense

potentially subject to a 15-year-to-life term under the One Strike law, which "sets forth an

alternative and harsher sentencing scheme for certain enumerated sex crimes." (People v.

Mancebo (2000) 27 Cal.4th 735, 741.) The sex crimes subject to the One Strike law

are set forth in section 667.61, subdivision (c), and include lewd and lascivious conduct

(§ 288, subd. (a)). Subdivision (b) of the statute states that a 15-year-to-life sentence

"shall" be imposed for the crimes so enumerated, provided that two or more

circumstances described in subdivision (e) of section 667.61 are established. (§ 667.61,

subds. (a) & (c)(4).)

       Rule 4.425(a) of the California Rules of Court sets forth crime-related criteria

affecting the imposition of consecutive rather than concurrent sentences: "(1) The crimes

and their objectives were predominantly independent of each other; [¶] (2) The crimes

involved separate acts of violence or threats of violence; or [¶] (3) The crimes were

committed at different times or separate places, rather than being committed so closely in

time and place as to indicate a single period of aberrant behavior."

       Trial courts have broad discretion to decide whether concurrent or consecutive

sentences are appropriate. (People v. Clancey (2013) 56 Cal.4th 562, 579; People v.

Leon (2010) 181 Cal.App.4th 452, 468.) "In the absence of a clear showing of abuse, the

trial court's discretion in this respect is not to be disturbed on appeal. [Citation.]

Discretion is abused when the court exceeds the bounds of reason, all of the

circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)

                                              17
        Here, we conclude the trial court did not abuse its discretion in sentencing Barba

to two consecutive terms, in light of the fact there were two victims, and Barba

committed the criminal acts against them approximately one year apart. During the

intervening period, Barba had had sufficient time to reconsider his actions. He

nevertheless continued his behavior, justifying consecutive terms under the rules of court

criteria.

                                             B.

        Barba next contends his sentence is unconstitutional as applied in his case because

it is cruel and unusual. He emphasizes that the length of the sentence is grossly

disproportionate to the nature of the offenses he committed, especially taking into

account his age, the fact that he has no prior criminal record, he was known to have good

character, and the offenses did not involve force or violence.

        The Eighth Amendment's ban on cruel and unusual punishment prohibits

imposition of a sentence that is grossly disproportionate to the severity of the crime.

(Ewing v. California (2003) 538 U.S. 11, 20-21.) In Graham v. Florida (2010) 560 U.S.

48 (Graham), the Supreme Court recognized that punishments prohibited as

unconstitutionally disproportionate to the offense generally fall into two classifications:

Those that are categorically prohibited, and those that are prohibited based on the facts of

a particular case. (Ewing, at pp. 58-59.)

        To determine whether a particular sentence is so grossly disproportionate that it

violates the federal Constitution, the court considers all the circumstances of the case,

including the gravity of the offense and the severity of the penalty as well as whether

                                             18
more serious crimes are subject to the same penalty in other jurisdictions. (Graham,

supra, 560 U.S. at p. 58; Solem v. Helm (1983) 463 U.S. 277.) No single criterion is

dispositive. (Solem, at p. 291, fn. 17.) " '[O]utside the context of capital punishment,

successful challenges to the proportionality of particular sentences [will be] exceedingly

rare.' " (Id. at p. 290, quoting Rummel v. Estelle (1980) 445 U.S. 263, 271.) Still,

although deference is given to the Legislature's prescribed sentence for a particular crime

(Solem, at p. 290), no penalty is per se constitutional. (Ibid.)

       Similarly, under state law Barba must overcome a "considerable burden" in

challenging his penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169,

174.) He must demonstrate the punishment is so disproportionate to the crime for which

it was imposed it "shocks the conscience and offends fundamental notions of human

dignity." (In re Lynch (1972) 8 Cal.3d 410, 424; accord, People v. Dillon (1983) 34

Cal.3d 441, 478.) The Lynch court identified three factors for the reviewing court to

consider in assessing this constitutional claim: (1) the nature of the offense and the

offender; (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. (Lynch, at pp. 425-427.)

       To evaluate whether a particular punishment is cruel or unusual, courts examine

the nature of the offense and of the offender, " 'with particular regard to the degree of

danger both present to society.' " (People v. Dillon, supra, 34 Cal.3d at p. 479.) In

assessing the nature of the offense, a court should consider the circumstance of the

particular offense such as the defendant's motive, the way the crime was committed, the

                                              19
extent of his involvement and the consequences of his acts. (Ibid.) In analyzing the

nature of the offender, a court should consider his "age, prior criminality, personal

characteristics, and state of mind." (Ibid.) "[A] punishment which is not disproportionate

in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the

defendant's individual culpability." (Id. at p. 480.)

       In resolving Barba's contention, we rely in part on the analysis of another court in

this district: "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." (People

v. Christensen (2014) 229 Cal.App.4th 781, 803.)

       Furthermore, Barba was sentenced for two offenses against two different victims.

Any one act in isolation was a serious offense. Cumulatively, without a doubt, his

offenses were grave. As stated in Graham, supra, 560 U.S. 48, " 'punishment for crime

should be graduated and proportioned to [the] offense.' " (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

conclude that Barba's penalty is not harsh in relation to the gravity of the offenses. "The

gross disproportionality principle reserves a constitutional violation for only the

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extraordinary case." (Lockyer v. Andrade (2003) 538 U.S. 63, 77.) This underlying case

is not one.

       Barba molested two young family members whose parents had entrusted them to

his care and supervision. In so doing, he breached the trust placed in him. He

emphasizes that he had no prior criminal record before being convicted for the present

offenses. But 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 Barba is not

disproportionate to his culpability.

       Barba argues the length of his sentence exceeds that imposed for more violent and

serious crimes in California. He cites a number of California statutes, but the one bearing

the most severe punishment is section 193, which imposes 11 years for manslaughter.

Barba's analysis overlooks the fact that ordinarily, the permissible sentence range under

section 288, subdivision (a) is three, six, or eight years in prison, less than that for

manslaughter. His augmented sentence of 30 years to life was due to his conviction for

crimes against two separate victims. Further, his sentence was increased under section

667.61, subdivisions (b), (c) and (e) because of the true findings he had committed the

crimes on more than one victim. Consequently, section 193 for manslaughter is not

comparable. (People v. Crooks (1997) 55 Cal.App.4th 797, 807.)




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                                 DISPOSITION

     The judgment is affirmed.




                                               O'ROURKE, J.

I CONCUR:


McCONNELL, P. J.


I CONCUR IN THE RESULT:


HALLER, J.




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