Filed 5/30/13 P. v. Sneed CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064257
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF235257)
                   v.

DENNIS RAY SNEED,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.

         Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


         *Before Levy, Acting P.J., Cornell, J. and Peña, J.
                                      INTRODUCTION
        Defendant Dennis Ray Sneed appeals his conviction after a jury found him guilty
of multiple counts of child molestation. Specifically, defendant contends his sentence of
230 years is unconstitutional. The court will affirm the judgment.
                                 PROCEDURAL HISTORY
        In an amended information filed October 31, 2011, by the Tulare County District
Attorney, defendant was charged with 14 counts of forcible lewd or lascivious acts
against a child under the age of 14 years (Pen. Code,1 § 288, subd. (b)(1); counts 1-14))
and one count of committing a lewd or lascivious act upon a child 14 years old (§ 288,
subd. (c)(1); count 15)). As to counts 1, 3, 4, 9, and 13,2 it was also alleged that
defendant had substantial sexual conduct with his victim, then under the age of 14 years.
(§ 1203.066, subd. (a)(8).) Lastly, it was further alleged that defendant had been
previously convicted of a strike offense. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-
(d).)
        The following day, defendant pled not guilty to all counts and denied all
allegations.
        On November 4, 2011, a jury found defendant guilty of all counts. It also found
true the related special allegations. Defendant’s prior strike conviction was found true in
a bifurcated proceeding before the trial court on that same date.
        On December 20, 2011, defendant was sentenced to a term of 16 years (the upper
term of eight years doubled for the strike) on counts 1 through 14; each 16-year term was
to run consecutive to the prior term. An additional term of six years was imposed on
count 15. Hence, defendant was sentenced to a total of 230 years in prison.




        1All further statutory references are to the Penal Code unless otherwise indicated.

        2The amended information originally included count 15 as alleging a special allegation.
However, that allegation was later dismissed by the People.


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                                          FACTS
Prosecution’s Case
       D. was born in 1994. She was primarily raised in her grandmother’s home but
went to live with her parents, defendant and Mother, in Visalia when she was 11 years
old. C. and M., D.’s older and younger sisters, also lived with their parents in Visalia.
       Initially, the family lived in a home on Bridge Street. D. recalled having a
nightmare one evening and going into her parents’ bedroom as a result. She got in bed
with her parents, but Mother eventually left the room. Her father then began to molest
D., first touching her vagina over her underwear. Eventually thereafter, defendant forced
D. to masturbate and orally copulate him. He also digitally penetrated D., engaged in
sexual intercourse with her, and sodomized her.
       Mother abandoned the family after they moved to a home on Giddings Street.
Before she left, however, D. told Mother about the abuse. But when her father denied
doing anything and became angry, Mother dropped it and left soon after. Her dad
continued to sexually abuse her almost every day or every other day.
       D. was afraid of her father. Defendant told D. that if she told anyone, he would
say that she threw herself at him. D. was also afraid of losing her father, and thus she did
not tell anyone else of the abuse.
       Eventually D. and her sisters moved back with their grandparents in Monterey
County. D. returned to Visalia over Christmas in 2007 to visit her father. He took her to
a park with a bridge. Under the bridge, her father “raped” her. On another occasion,
defendant traveled to visit the girls when they lived with their grandparents. Defendant
took her and M. to a Wal-Mart after giving them gift cards. When M. delayed over her
purchases, defendant and D. returned to the car to wait. In the car, defendant digitally
penetrated D.’s vagina.
       Later, while D. was living in a temporary foster home, defendant took her to a
park in Monterey. He attempted to molest her, but D. pushed his hand away and said no.



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She was able to do so because she realized she no longer cared if she lost her father, as
defendant had not been a true father to her at all.
       C. was afraid of her father as well. He had offered her $20 in exchange for oral
sex; she was 13 years old at the time. A few months after that incident, C. saw D.
sleeping in her father’s bedroom clad only in her underwear. Because she was afraid of
her dad and did not like to be inside the house on Giddings, C. slept in the backyard in a
makeshift fort dug into the side of a hill.
       M. recalled living in Visalia with her sisters and her dad. She remembers D.
sleeping in her dad’s bedroom. On one occasion, M. saw D. in her father’s bed. D. was
wearing a baggie T-shirt and their father was not wearing any clothing.
       Once the abuse came to light and an investigation commenced, D. described a
tattoo on her father’s penis. The tattoo depicted fire flames. D. was able to draw the
flames precisely upon a penis depicted on a piece of paper. C. knew her father had a
tattoo on his penis, but she had never seen it.
       Detective Osvaldo Dominguez with the Visalia Police Department interviewed
defendant. When confronted with D.’s statements, defendant denied everything. He said
his children had never seen him naked, and he had not seen them naked since they were
babies. Neither had the girls been knowingly or inadvertently exposed to sexual acts or
conduct. D. was never naked in his bedroom, and she was only in the room to watch
television. When told D. could describe the tattoo on his penis, defendant indicated that
was not possible because she had never seen it. While he did not specifically speak with
his daughters about his penis tattoo, they could have overheard him speaking about it
with his wife, or joking about it. According to the detective, defendant expressly denied
sodomizing D., stating “‘I don’t even like ass. That’s just sick.’”
Defense Case
       Jennifer Orange lived with defendant and his daughters for about a year and a half
after Mother left. Orange observed defendant interact with his daughters. D. did not
appear fearful or sad; she had a good relationship with her father. While she lived with

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the family, Orange worked the graveyard shift. She was home during the day but left for
work at about 11:00 p.m. and would return the next morning.
       Cheryl Moore was married to defendant in March 2007. They separated in late
2008. Moore observed defendant interact with his daughters also. D. was neither
bothered by nor afraid of defendant. Moore did observe inappropriate behavior on D.’s
part. D. always wanted to kiss defendant and “she would throw … a violent outraging
fit” if she did not get to spend time with her father. Moore recalled describing D.’s
relationship with her father as awkward while speaking with the detective; she attributed
this to D.’s age and her desire to kiss defendant on the lips. Moore also recalled C. and
M. telling her they had heard moaning coming from defendant’s bedroom. With regard
to sleeping arrangements, defendant’s girls slept in one room together. Moore testified
that C. did not sleep in the backyard fort.
       Defendant testified in his own behalf. He denied ever touching his daughter
inappropriately and testified that D.’s statements are not true.
       Moreover, C.’s testimony with regard to his offering her $20 was not true. Rather,
defendant explained that at that time C. had been going to the park a lot. She would then
come home with a new bike or rollerblades, and once came home with $20. He was
concerned she was offering sexual favors in return for the items or money. She became
angry with him when he confronted her about it.
       When Mother called him and told him the girls had accused him of raping them,
he left work immediately and went home. He confronted the girls, but they said they
were playing or joking. He has never done anything inappropriate or sexual with any of
his children.
       Defendant is extensively tattooed. And, because tattooing is a hobby, he often
drew flames, a specialty of his. The same type of flames can be seen on his arms and on
his penis. He taught the girls how to draw flames. D. was particularly interested in his
hobby; she would often watch when people came to the house to get a tattoo. D. has



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never seen the tattoo on his penis, but the fact he had a tattoo there was common
knowledge.
       Defendant believes these allegations arose because the girls are angry with him for
sending them back to live with their grandmother. When he was released from prison
and regained custody of the girls, he promised them he would never let them go. But
when he lost his job, he could no longer afford to take care of them. Before he sent them
to live with their grandmother, defendant got along well with his daughters.
       Once the girls moved to Monterey County, D. never returned to visit defendant in
Visalia. The bridge incident never happened.
       On cross-examination, defendant claimed all three of his girls took the stand and
lied. Defendant admitted not advising the detective that he had taught his daughters how
to draw flames. The detective had not asked him and it did not occur to defendant to
bring it up.
                                      DISCUSSION
I.     Defendant’s Sentence Is Not Cruel or Unusual
       Defendant contends the sentence imposed violates the federal and state
constitutional prohibitions against cruel and unusual punishment because (1) his conduct
was not violent; (2) it is impossible to serve a sentence of 230 years; and (3) his conduct
is similar to that of a resident child molester, upon whom a sentence of 32 years would
have been imposed. Plaintiff contends defendant has forfeited this claim for purposes of
appeal. In any event, plaintiff maintains the sentence is neither cruel nor unusual.
       The federal Constitution’s Eighth Amendment prohibits cruel and unusual
punishment; that is, punishment that involves “unnecessary and wanton infliction of
pain” or is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia
(1976) 428 U.S. 153, 173; see also Ewing v. California (2003) 538 U.S. 11, 23.)
       The California Constitution’s prohibition of cruel or unusual punishment prohibits
imposing a criminal sentence which is “so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human

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dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424; see Cal. Const., art. I, § 17; People v.
Dillon (1983) 34 Cal.3d 441, 478.)
       “A defendant has a considerable burden to overcome when he challenges a penalty
as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law
of California and the court should not lightly encroach on matters which are uniquely in
the domain of the Legislature.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520,
529.) The court uses a three-pronged approach to determine whether a particular
sentence is grossly disproportionate. First, it reviews “the nature of the offense and/or the
offender, with particular regard to the degree of danger both present to society.” (In re
Lynch, supra, 8 Cal.3d at p. 425.) Second, it compares the challenged punishment with
punishments prescribed for more serious crimes in its jurisdiction. (Id. at p. 426.) Third,
it compares the challenged punishment to punishments for the same offense in other
jurisdictions. (Id. at p. 427; see also Ewing v. California, supra, 538 U.S. at p. 22.) The
importance of each of these prongs depends upon the facts of each specific case. (In re
Debeque (1989) 212 Cal.App.3d 241, 249.) Indeed, the court may base its decision on
the first prong alone. (People v. Dillon, supra, 34 Cal.3d at pp. 479, 482–488.)
       A.     Waiver or Forfeiture
       Initially, the court notes that defendant failed to object to his sentence on the
grounds it constituted cruel and unusual punishment. Claims of cruel and unusual
punishment in violation of constitutional standards involve fact-specific determinations
about the offense and the offender and must be raised in the trial court to avoid waiver.
(People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52
Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
       At sentencing, defendant argued that the 230-year sentence was “impractical” and
“unnecessary,” and that it “serve[d] no practical purpose.” He suggested the court
impose the mitigated term of six years on each of the 14 counts, plus an additional two-
year term for count 15, for a total of 86 years. Defendant never claimed the sentence
would violate the constitutional prohibitions against cruel and/or unusual punishment,

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and did not address the necessary fact-specific determinations typically addressed in such
a claim. We conclude therefore that defendant has waived the issue. (People v. Kelley,
supra, 52 Cal.App.4th at p. 583.) Nonetheless, even assuming the issue had been
preserved, the claim lacks merit.3
       B.      Nature of the Offense and the Offender
       Defendant contends his conduct was not violent, and he focuses on his lengthy
sentence, noting that such a sentence is “impossible for a human to serve.” He also
contends an individual convicted of premeditated murder, a more serious crime, will
likely receive a sentence of only 25 or 50 years to life in prison. Lastly, he contends “a
more cogent analysis in lewd act cases is comparing the sentence a resident child
molester would have received for the same or similar conduct.”
       This nature of the offense and the offender inquiry “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.) The offenses committed by defendant demand a long period of
confinement to protect the residents of a civilized society. Defendant was convicted of
15 counts of lewd and lascivious conduct over a period of years, the victim his own
daughter. Defendant’s conduct progressed from first touching D.’s vagina over her
underwear, to sodomizing her before she began menstruating, to intercourse. D. testified
that once the abuse began, the contact occurred every day or every other day. Defendant

       3Defendant also asserts this claim should be “addressed on the merits to forestall an
inevitable ineffective assistance of counsel claim.” An appellant bears the burden of showing
that counsel’s performance fell below an objective standard of reasonableness and that, but for
counsel’s unprofessional errors and omissions, it is reasonably probable that the result of the
proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 693-
694.) Yet, defense counsel is not required to make futile objections or advance meritless
arguments. (People v. Jones (1979) 96 Cal.App.3d 820, 827.) As will be explained, defendant’s
sentence does not violate the California or federal constitutional prohibitions against cruel and/or
unusual punishment. Therefore, defense counsel’s failure to object on this ground was not
unreasonable and defendant was not prejudiced by the omission.


                                                 8.
threatened D. that if she told anyone of his actions, he would say she had thrown herself
at him. Moreover, defendant never accepted responsibility or expressed remorse for his
crimes.4 It is clear defendant’s offenses are extremely serious, and that he poses a serious
danger and threat to vulnerable young girls. “It was [defendant’s] conduct, not his
sentence, that was cruel and unusual.” (People v. Wallace (1993) 14 Cal.App.4th 651,
666 [non-strikes sentence of 283 years 8 months not cruel or unusual].) “An examination
of the nature of the [forcible sex] offenses committed here … reveals that they are of the
most serious, violent and heinous crimes imaginable both in the abstract and in the real
world.” (People v. Huber (1986) 181 Cal.App.3d 601, 633 [non-strikes sentence of 106
years 4 months not cruel or unusual].) “In view of the outrageous nature of this type of
offense and in view of the danger that these offenses pose to society we cannot say that
the imposition of consecutive sentences for multiple sex offenses shocks the conscience
and offends fundamental notions of human dignity.” (People v. Bestelmeyer, supra, 166
Cal.App.3d at p. 531 [while non-strikes sentence of 129 years may be the equivalent of a
life sentence without the possibility of parole, it was not cruel or unusual for violent sex
offender].)
       Moreover, defendant received a longer sentence because of his recidivist behavior.
His sentence was effectively doubled as a result of a strike prior. Defendant was
convicted of first degree burglary in 1997 and served time in prison for that offense,
among others. Once paroled, defendant commenced to victimize his own young
daughter. In short, considering the nature of defendant’s offenses and his criminal
history, the sentence he received does not offend fundamental notions of human dignity
or shock the conscience. (In re Lynch, supra, 8 Cal.3d at p. 424.)




       4In fact, when the judge pointed this out during the sentencing proceeding, defendant
interrupted, stating, “That’s because it never happened.”


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       C.     Punishment for More Serious Crimes in California
       Defendant complains the sentence imposed here is a “de facto term of life without
parole” and one that “is impossible for a human to serve.”
       The fact a sentence exceeds a defendant’s life expectancy does not necessarily
render the sentence constitutionally cruel or unusual. (People v. Byrd (2001) 89
Cal.App.4th 1373, 1382-1383; People v. Ayon (1996) 46 Cal.App.4th 385, 396-401
[finding 240 years to life sentence, which was functional equivalent of a life sentence
without the possibility of parole, did not constitute cruel or unusual punishment],
disapproved on other grounds by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.)
As the court in Byrd reasoned: “[I]t is immaterial that defendant cannot serve his
sentence during his lifetime. In practical effect, he is in no different position than a
defendant who has received a sentence of life without possibility of parole: he will be in
prison all his life. However, imposition of a sentence of life without possibility of parole
in an appropriate case does not constitute cruel or unusual punishment under either our
state Constitution [citation] or the federal Constitution.” (People v. Byrd, supra, at p.
1383.) As noted above, the facts of this case render it appropriate to impose such a
sentence.
       Further, defendant contends that a premeditated murderer, who may face a
sentence of 25 or 50 years to life, will received a sentence “that is unquestionably a lesser
sentence” than the 230 years imposed here. Regardless, a sentence imposed for multiple
sexual offenses cannot be compared to the sentence imposed for a single act that results
in death. (People v. Estrada (1997) 57 Cal.App.4th 1270, 1280-1281.) With regard to
defendant’s contention that his offenses are more akin to those of a resident child
molester,

       “[s]ection 288.5 provides that a person who resides in the same home or has
       recurring access to a child, and who engages in three or more acts of
       substantial sexual conduct with the child over a period of not less than three
       months, shall be punished by a prison term of not less than six, twelve, or
       sixteen years. [¶] Section 288.5 was enacted because of problems of proof
       that can arise where the molester resides in the same house as the child.
                                             10.
        Under such circumstances the child may recall she was molested repeatedly
        over a period of time, but may not be able to recall discrete instances with
        sufficient precision to prove multiple counts. The People, however, are not
        required to prosecute under section 288.5 in order to gain a conviction
        against a resident child molester ….” (People v. Johnson (1995) 40
        Cal.App.4th 24, 26.)
The purpose of section 288.5 is to authorize “significant penalties” for resident child
molesters where there are problems with proof; it was not intended to limit the sentence
for a defendant, who commits multiple offenses, to a single count. (People v. Johnson,
supra, at p. 26.) Here, there were no problems with proof, and the People were not
required to prosecute defendant as a resident child molester.
        The court in People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, explained that it
is an “exquisite rarity” for a challenge to proportionality of a sentence to be successful in
California. This case does not involve such a rarity. Defendant bears the burden of
establishing that his punishment is greater than that imposed for more serious offenses in
California. (See In re DeBeque, supra, 212 Cal.App.3d at pp. 254-255.) He has not done
so.
        D.    Punishment for Similar Offenses in Other Jurisdictions
        The court notes that defendant makes no effort to compare his sentence with
punishments in other states for the same offense, which it takes as a concession that his
sentence withstands a constitutional challenge on either basis. (People v. Crooks (1997)
55 Cal.App.4th 797, 808 [defendant bears burden of establishing disproportionality].)
        In sum, although defendant’s sentence is lengthy, his conduct was reprehensible
and he has not demonstrated that his sentence is grossly disproportionate to his crimes.
(Ewing v. California, supra, 538 U.S. at pp. 20-21; In re Lynch, supra, 8 Cal.3d at p.
424.)
II.     Clerical Error May Be Corrected
        Defendant contends the abstract of judgment erroneously reflects he was convicted
of a violation of section 288, subdivision (b) in count 15. He maintains the jury actually
found him guilty of a violation of subdivision (c)(1) of that section. Plaintiff concedes

                                             11.
the clerical error. Hence, plaintiff joins defendant in asking the court to modify the
abstract of judgment to accurately reflect a violation of section 288, subdivision (c)(1) on
count 15.
       The court agrees with defendant and accepts plaintiff’s concession. Defendant
was in fact found guilty of a violation of subdivision (c)(1) of section 288. Accordingly,
the abstract of judgment should be corrected to conform with the jury’s verdict and the
trial court’s oral pronouncement as to count 15—that defendant was convicted of a
violation of subdivision (c)(1) of section 288. (See People v. Mitchell (2001) 26 Cal.4th
181, 185-187; People v. Smith (2001) 24 Cal.4th 849, 852.)
                                     DISPOSITION
       The judgment is affirmed. The trial court is directed to amend the abstract of
judgment to reflect a conviction pursuant to section 288, subdivision (c)(1), on count 15,
and transmit a certified copy of the amended abstract to the Department of Corrections
and Rehabilitation.




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