Filed 7/7/14 P. v. George CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B249680

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA071607)
         v.

TOMMY S. GEORGE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
David B. Gelfound, Judge. Affirmed.


         A. William Bartz, Jr., 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, Linda C. Johnson and William N.
Frank, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Tommy S. George (George) was convicted of committing a lewd act upon a child.
(Pen. Code, § 288, subd. (a).)1 The trial court found, within the meaning of section
667.61, subdivisions (a) and (b), that George had suffered a prior conviction for the same
offense. (§ 288, subd. (a).) Also, it found that he had suffered one prior serious or
violent conviction under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)), and a prior conviction of a serious felony within the meaning of section 667,
subdivision (a)(1). He was sentenced to 55 years to life in state prison, calculated as
follows: 25 years to life for the conviction as prescribed by section 667.61, subdivisions
(a) and (d); an additional 25 years to life due to the doubling provisions set forth in
sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d); and
five years pursuant to section 667, subdivision (a)(1), to run consecutive. On appeal,
George contends that his sentence is cruel and unusual punishment under the United
States and California Constitutions.
       We find no error and affirm.
                                          FACTS
Prior Criminal History
       In 1994, George was convicted of grand theft. From 2002 to 2009, he suffered a
series of convictions for driving while intoxicated, driving with a suspended license and
being intoxicated while in public. In 2006, he was convicted of possession of a
controlled substance (methamphetamine) in violation of Health and Safety Code section
11550, subdivision (a). He was convicted of grand theft from person in 2007 and grand
theft in 2008.
       In 2010, he was convicted of committing a lewd act on a child in violation of
section 288, subdivision (a).2




1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
       George admitted these priors.

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Prosecution Evidence
       In her husband’s truck, A.C. drove her daughter Sandy F. to the intersection of
Nordhoff Street and Van Nuys Boulevard and parked. They were accompanied by
Rodolfo G. and his grandson, Raul H. While the men went to a check cashing store, A.C.
and Sandy F. stayed in the truck with the doors open. George approached and said that
Sandy F. was pretty. After he asked how old Sandy F. was, he said he had a niece who
was the same age and that they looked alike. He asked if he could give Sandy F. a hug.
A.C. did not answer. Leaning into the back seat, he placed an arm around Sandy F., put
his hand under her dress and touched her vagina over her underwear.
       A.C. got out of the truck, pulled George’s shirt from the back and started hitting
him. She was crying, screaming and telling him to leave Sandy F. alone, but he would
not let go at first. Eventually, he let go and held up his fists about a foot away from A.C.
Then he walked away.
       Rodolfo G. and Raul H. witnessed the altercation from the corner, and Rodolfo G.
asked George what he was doing. He said, “Oh, it was nothing. It was just a hug. I
didn’t do anything.”
       A police officer detained George. He spontaneously stated that he thought the girl
looked like his niece and gave her a hug. Initially, he gave a false name, saying he was
Paul Wilson. He said he was working in the area. His speech was slurred, and he
appeared to be intoxicated.
       George was arrested.
Defense Evidence
       On the day of the incident, George drank a 24-ounce can of beer in about 10
minutes. He was not intoxicated.
       George saw a truck with a mother sitting in the front and a girl that looked just like
his niece, who was six years old. After saying hello, he said the girl looked like his niece,
who he had helped his sister raise. The mother and he spoke for a few minutes, and the
mother said that the girl was seven years old. At that point, he said the girl was cute and



                                             3
asked if he could give her a hug. The mother did not respond, but she smiled. So did the
girl.
        George gave the girl a hug with both his arms around her shoulders. It lasted
about two or three seconds. The mother “started flipping out,” cussing in Spanish, hitting
him and pulling his shirt. He never clenched his fists. He asked the mother, “What’s
your problem?”
Conviction; Sentencing
        The trial court convicted George of violating section 288, subdivision (a). It found
the special allegations true. George filed a motion to declare section 667.61
unconstitutional as applied to his case on the theory that it qualified as cruel and unusual
punishment. He relied on the Eighth Amendment to the United States Constitution and
article 1, section 17 of the California Constitution. The motion was denied.
        George was sentenced to 55 years to life.
        This timely appeal followed.
                                       DISCUSSION
        George posits that his sentence is cruel and unusual punishment because he was 37
years old at sentencing and therefore 55 years to life is tantamount to a life sentence that
is contrary to the “evolving standards of decency that mark the progress of a maturing
society.” (Trop v. Dulles (1958) 356 U.S. 86, 101.) This constitutional challenge
presents a question of law subject to our de novo review. (Vo v. City of Garden Grove
(2004) 115 Cal.App.4th 425, 433.)
I. Applicable Legal Principles.
        “The prohibition against ‘cruel and unusual punishments,’ like other expansive
language in the Constitution, must be interpreted according to its text, by considering
history, tradition, and precedent, and with due regard for its purpose and function in the
constitutional design.” (Roper v. Simmons (2005) 543 U.S. 551, 560–561.) According to
the United States Supreme Court, it “established the propriety and affirmed the necessity
of referring to ‘the evolving standards of decency that mark the progress of a maturing



                                              4
society’ to determine which punishments are so disproportionate as to be cruel and
unusual. [Citation.]” (Id. at p. 561.)
       Federal precedent explains that a sentence is cruel and unusual punishment under
the Eighth Amendment if it is grossly disproportionate to the crime. (Graham v. Florida
(2010) 560 U.S. 48, 59–60.) When analyzing the issue, a court must consider “all of the
circumstances of the case to determine whether the sentence is unconstitutionally
excessive.” (Id. at p. 59.) It should begin “by comparing the gravity of the offense and
the severity of the sentence. [Citation.]” (Id. at p. 60.) “‘[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 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.]” (Ibid.) “The gross disproportionality principle reserves a
constitutional violation for only the extraordinary case.” (Lockyer v. Andrade (2003) 538
U.S. 63, 77 (Andrade); Ewing v. California (2003) 538 U.S. 11, 30 [noting that it is only
in a rare case that there is an inference of disproportionality, and then holding that a
sentence of 25 years to life for felony grand theft under California’s Three Strikes law
was not grossly disproportionate].)
       “A punishment may violate article I, section 17 of the California Constitution if ‘it
is so disproportionate to the crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.’ [Citation.]” (People v. Alvarado
(2001) 87 Cal.App.4th 178, 199 (Alvarado) [15 years to life under section 667.61 for rape
during burglary not cruel and unusual punishment.) In California, the analytical approach
requires a court “to examine the nature of the offense and the nature of the offender.
[Citation.] With respect to the nature of the offense, the court considers the offense not
only in the abstract but also the facts of the crime in the particular case, ‘including such
factors as its motive, the way it was committed, the extent of the defendant’s
involvement, and the consequences of his acts.’ [Citation.] With respect to the nature of

                                              5
the particular person before the court, the question is 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.’ [Citation.]” (People v.
Young (1992) 11 Cal.App.4th 1299, 1308.)
II. George’s Sentence.
       Section 667.61, sometimes referred to as the One Strike law (People v. Anderson
(2009) 47 Cal.4th 92, 99), “mandates indeterminate sentences of 15 to 25 years to life for
specified sex offenses that are committed under one or more ‘aggravating circumstances,’
. . . . The purpose of the One Strike law is ‘to ensure serious and dangerous sex offenders
would receive lengthy prison sentences upon their first conviction,’ ‘where the nature or
method of the sex offense “place[d] the victim in a position of elevated vulnerability.”
[Citation.]’ [Citation.]” (Alvarado, supra, 87 Cal.App.4th at p. 186.) One of the
specified sex offenses under subdivision (c) is a lewd act upon a child. Pursuant to the
dictates of section 667.61, subdivisions (a) and (d)(1), George received a mandatory
sentence of 25 years to life because he had previously been convicted of an offense
specified in subdivision (c). In other words, his 2010 conviction was an aggravating
circumstance under section 667.61.
       Next, George’s sentence was doubled because of his prior conviction for violating
section 288, subdivision (a) in 2010. A violation of section 288, subdivision (a) is one of
the offenses listed as a violent felony pursuant to section 667.5, subdivision (c)(6), and
that list is incorporated into section 667, subdivision (d)(1) and section 1170.12,
subdivision (b)(1). Section 667, subdivision (e)(1) provides: “If a defendant has one
prior serious and/or violent felony conviction as defined in subdivision (d) . . . , the
determinate term or minimum term for an indeterminate term shall be twice the term
otherwise provided as punishment for the current felony conviction.” Section 1170.12,
subdivision (c)(1) provides the same.
       Finally, George’s sentence was enhanced five years under section 667, subdivision
(a)(1) because he had previously been convicted of a lewd act upon a child, a serious
felony as defined by section 1192.7, subdivision (c)(6).

                                              6
III. No Gross Disportionality.
       In our view, the sentence of 55 years to life for committing a lewd act on a child is
not grossly disproportional, nor does it shock the conscience or offend fundamental
notions of human dignity. To reach this conclusion, we have compared the severity of
the offense to the severity of the sentence and, additionally, we have examined the nature
of the offender.
       Committing a lewd act upon a child is one of the most morally repugnant offenses
in civilized society. And it has been recognized that there is a high rate of recidivism for
child molesters. (People v. Acuna (2000) 77 Cal.App.4th 1056, 1061 [rejecting an equal
protection challenge to the statutory ban on expunging a conviction for committing a
lewd act on a child].) George attempts to minimize his crime, calling it “the most
minimal basis for a child molestation conviction that ever occurred in California.” We
reject his attempt. This is a heinous crime that can leave a victim with deep
psychological wounds for a lifetime.
       George brazenly committed a lewd act upon a seven-year old child while in public
and in front of the child’s mother. He robbed the victim of personal safety, sanctity and
well-being. Due to his age and prior conviction for committing a lewd act upon a child,
the inference is that George knew his impulse to molest the victim was wrong but did it
anyway.3 That inference is bolstered by his use of a false name when he was first
questioned by the police. He was intoxicated during the offense, and had a history of
substance abuse, a circumstance suggesting that he knowingly allowed alcohol to impair
his judgment. When the mother tried to pull him away, he would not let go of the child at
first. After letting go, he did not act ashamed but rather raised his fists, exhibiting
callousness and a concern for himself above all others. According to George, he asked
the mother what her problem was, suggesting that he did not believe that his heinous
action should be questioned. At trial, he denied his offense but acknowledged that he

3
       At the sentencing hearing, George’s counsel stated: “And the prior, which was the
basis for triggering [section 667], involved similar conduct, touching of the underwear of
a young girl.”

                                               7
asked to hug Sandy F. Subsequent to that, he testified: “I know it was very stupid. I
wasn’t using my better judgment.” These facts reveal that George had no appreciation or
remorse regarding the severity of his crime, and he poses a threat to the most vulnerable
members of our community.
       Our conclusion that George’s sentence passes constitutional scrutiny is amply
supported by case law. (People v. Crooks (1997) 55 Cal.App.4th 797 [a sentence under
section 667.61 not cruel and unusual punishment for rape committed during burglary];
(People v. Meneses (2011) 193 Cal.App.4th 1087, 1089 [a sentence under section 667.61
not cruel and unusual punishment for lewd act upon a child who got pregnant and
therefore suffered great bodily injury]; People v. Estrada (1997) 57 Cal.App.4th 1270,
1273 [a sentence under section 667.61 not cruel and unusual punishment for rape
committed during burglary].)
       Even if there was an inference of gross disproportionality, we would still uphold
the sentence because George does not argue that the inference is corroborated by
comparisons to sentences meted out for other offenses in California or the same offense
in other jurisdictions.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                          __________________________, J.
                                                ASHMANN-GERST

We concur:


_____________________________, P. J.
           BOREN


____________________________, J.
           CHAVEZ


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