Filed 5/4/16 P. v. Hammond CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142892
v.
DELVON LUJUAN HAMMOND,                                               (Solano County
                                                                     Super. Ct. No. FCR295413)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Appellant Delvon Lujuan Hammond appeals his sentence of life imprisonment
without the possibility of parole as cruel and unusual punishment under both the United
States and California Constitutions. Hammond was convicted of forcible lewd act upon a
child under age 14, and sentenced pursuant to a sentencing scheme designed to punish
recidivist sex offenders. We conclude Hammond’s statutorily mandated sentence is not
grossly disproportionate to his crime under the Eighth Amendment, and does not shock
the conscience or offend fundamental notions of human dignity under the California
Constitution. Hammond also argues the trial court failed to make a judicial determination
of his ability to pay restitution. We hold the court did not abuse its discretion in ordering
a restitution fine. We affirm.




                                                             1
                                              II.
                   FACTUAL AND PROCEDURAL BACKGROUND
       A.      Procedural History
       The Solano County District Attorney’s Office charged Hammond with one count
of forcible lewd act upon a child in violation of Penal Code section 288,
subdivision (b)(1)1 (count one) and one count of attempted forcible lewd act upon a child
in violation of sections 664 and 288, subdivision (b)(1) (count two). The information
alleged enhancements for a prior serious felony (§ 667.61), a qualifying prior sex offense,
and a prior strike based upon Hammond’s conviction for a violation of section 288,
subdivision (a) in 2005. (§ 667.61, subds. (a)(1), (j)(1), (d)).
       Hammond was tried before a jury and found guilty of both counts, and the jury
found true Hammond’s prior conviction for a lewd act upon a child.
       B.      Jury Trial
       The victim, M.G. (age 10 at the time), was riding on a scooter from her house
when Hammond approached her on Civic Center Drive. Hammond told her to stop, and
she stopped because she thought maybe she had dropped something. Hammond rode
toward her on a bike. He got off the bike and “grabbed [her] foot and put it in his pants.”
She was wearing flip flop sandals and Hammond removed the flip flop from one of her
feet. There was no one around them and M.G. felt scared. Hammond rubbed her foot on
his penis. She pulled her foot back and tried to ride away on her scooter, but Hammond
tried to grab her foot again and force it back down his pants. She “fought it off” and rode
home. When she got home, she went to her room and cried. She then told her brother,
who informed their mother.
       Hammond was wearing an electronic monitoring device at the time of the incident
with M.G. The GPS signal from the device showed his location within 50 feet. He was
at Utah Street and Civic Center Drive at the time M.G. claimed to have been assaulted.



       1
           All subsequent statutory references are to the Penal Code.


                                              2
       Hammond carried out a similar assault in 2004 on A.M., who was 12 years old at
the time. A.M. was sitting alone in the waiting room at Northbay Hospital in Fairfield
when Hammond approached her. A.M. was seated watching television and Hammond
sat down next to her. Hammond kneeled down in front of her, pulled his pants down to
expose his penis, and grabbed her leg. He removed A.M.’s flip flop sandal and began
rubbing his penis on the bottom of her foot. A.M. stated Hammond’s penis felt hard. He
then began rubbing it on her ankle as well. A.M. began to yell and cry. She kicked
Hammond and tried to push him away. As she was screaming and pushing him away, he
“was using all his force” to continue rubbing his penis on her. When a security guard
came into the room, Hammond pulled up his pants and went to the elevator. Hammond
was apprehended shortly thereafter.
       C.        Sentencing
        The law provides that any person convicted of a sex offense upon a child victim
who is under 14 years old who has a prior similar offense, “shall be punished by
imprisonment in the state prison for life without the possibility of parole.” (§ 667.61,
subd. (j)(1).)
       Hammond’s trial counsel argued section 667.61 was unconstitutional as applied to
Hammond because it constituted cruel and unusual punishment. Counsel stressed the
limited touching involved in both offenses, that no weapons were used, and the victims
were not injured. Counsel argued that Hammond suffered with numerous mental defects
since childhood, causing him great difficulty in school. Hammond also had “borderline
intellectual functioning.”
       The prosecutor responded that Hammond was not so lacking in mental abilities
that he could not perform in life. Hammond had participated in and completed vocational
programs in prison. The prosecution also referenced Hammond’s parole violations
including the fact that shortly before the incident with M.G., Hammond’s parole agent
found child pornography on Hammond’s phone. Among others sites, he had viewed
several Web sites showing young girls with adult men fondling their feet, as well as adult



                                             3
men having sex with young girls.2 The prosecution argued that Hammond could not
meet the “considerable burden” to demonstrate disproportionality. Hammond’s sentence
was mandatory because the jury found the allegation that Hammond suffered a prior
conviction for a violation of section 288, subdivision (a) to be true, and this mandated a
sentence of life without the possibility of parole.
       The presentence report documented the trauma to the victim, who stated she was
unwilling to leave home unless she was accompanied by an adult. M.G. lived near a
library and used to ride her bike there, but after the incident she was too afraid and would
only go there with her mother. M.G. had become cautious in public and if she saw
someone who resembled Hammond, she would become visibly uncomfortable.
       The court found the victim to be particularly vulnerable because she was a child
riding her scooter alone in an area where she felt safe near her home. Hammond used his
position as an adult authority figure to cause her to stop. He pulled her from the scooter
and forced her foot into his pants and onto his penis. The court found “the trauma he’s
done to her is really immeasurable. We have evidence that the child that this was done
ten years ago to is still traumatized, and we have evidence that this child is traumatized.”
The court further noted when Hammond approached M.G., he was on parole for the same
activity.
       The court found the mandatory sentence was not unconstitutional. The court
stated it was a matter for the Legislature that created the sentencing scheme. Hammond
had managed to be “pretty much self sufficient in his life,” and he had completed courses
in prison. The court found there were not sufficient facts in the record to find the
punishment was cruel and unusual.
       The court sentenced Hammond to determinate terms of eight years on count one
(stayed) and eight years on count two with an additional five-year enhancement, for a
total determinate term of 13 years. The court sentenced Hammond under section 667.61,

       2
          Respondent included this information in its sentencing memorandum filed in the
trial court. Hammond did not object before the trial court and does not object to
respondent’s references to this information in its brief on appeal.


                                              4
subdivisions (d) and (j)(1) to an indeterminate term of life without the possibility of
parole on count one.
       The court ordered restitution in the amount of $10,000. After discussing
sentencing credits and sex offender registration, the court ordered Hammond to pay a
court security surcharge of $40 and a criminal conviction fee of $30. Counsel then
objected “on the basis he has no ability to pay.”
                                            III.
                                      DISCUSSION
       A.    Hammond’s Sentence Does Not Constitute Cruel and Unusual
       Punishment Under the State or Federal Constitutions

       Hammond contends his sentence constitutes cruel and unusual punishment in
violation of both the state and federal Constitutions (U.S. Const., 8th Amend.; Cal.
Const., art. I, § 17.) A punishment violates the Eighth Amendment if it involves the
“unnecessary and wanton infliction of pain” or if it is “grossly out of proportion to the
severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) Under the state
Constitution, a sentence may constitute cruel and unusual punishment 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.” (In re Lynch (1972) 8 Cal.3d 410, 424,
fn. omitted (Lynch).)
       Hammond was sentenced pursuant to a sentencing scheme designed to punish
recidivist sex offenders. Section 667.61, subdivision (j)(1) codifies the voters’ intent that
adult sex offenders who commit a second offense on a child under 14 years of age be
punished with a sentence of life without the possibility of parole. (§ 667.61, subd. (j)(1).)
The statute imposes this penalty whether or not an act of molestation is accomplished by
force and includes any lewd or lascivious act upon a child.
       “California has recognized, and reasonably so, that sex offenders present a serious
danger to society because of their tendency to repeat their sexual offenses. Sexual
offenses not only invade the deepest privacies of a human being, and thereby may cause
permanent emotional scarring, but they frequently result in serious physical harm to, or


                                              5
death of, the victim.” (People v. Meeks (2004) 123 Cal.App.4th 695, 709.) Both the
Legislature and the courts have repeatedly recognized the need “ ‘to provide children
“special protection” from sexual exploitation because they “are ‘uniquely susceptible’ to
such abuse” and “suffer profound harm whenever they are perceived and used as objects
of sexual desire. [Citation.]’ ” (People v. Murphy (2001) 25 Cal.4th 136, 146, quoting
People v. Martinez (1995) 11 Cal.4th 434, 443.)
       “ ‘Recidivism in the commission of multiple felonies poses a manifest danger to
society justifying the imposition of longer sentences for subsequent offenses.” (People v.
Sullivan (2007) 151 Cal.App.4th 524, 570, quoting People v. Ayon (1996) 46 Cal.App.4th
385, 399, disapproved on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 600,
fn. 10.)
              1.     Disproportionality under the California Constitution
       “[I]n California a punishment may violate article I, section 6, of the Constitution
if, although not cruel or unusual in its method, it is so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.)
       “The doctrine of separation of powers is firmly entrenched in the law of
California, and a court should not lightly encroach on matters which are uniquely in the
domain of the Legislature. Perhaps foremost among these are the definition of crime and
the determination of punishment.” (People v. Wingo (1975) 14 Cal.3d 169, 174.) It is
therefore only in the “ ‘rarest of cases’ ” that a court may declare a punishment mandated
by the Legislature to be “ ‘unconstitutionally excessive.’ ” (People v. Meneses (2011)
193 Cal.App.4th 1087, 1093.)
       Under Lynch, we examine (1) the nature of the offense and the offender including
the degree of danger to society, (2) compare the punishment with the penalty for more
serious crimes in the same jurisdiction, and (3) compare the punishment with the penalty
for more serious crimes in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425–427.)
Hammond only addresses the first prong (intracase proportionality), and we therefore



                                              6
need not address the second and third factors (intercase proportionality).3 (People v.
Weddle (1991) 1 Cal.App.4th 1190, 1194-1195 & fns. 2 & 3; see also People v. Ayon,
supra, 46 Cal.App.4th at pp. 398-399 [constitutionality determination may be based on
nature of the offense and/or offender alone].)
       Thus, we first review the crime itself, both “in the abstract” and in view of the
totality of the circumstances surrounding its commission, “including such factors as its
motive, the way it was committed, the extent of defendant’s involvement, and the
consequences of his acts.” (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) Then,
we consider the nature of the defendant and inquire whether the sentence is grossly
disproportionate to his individual culpability based on his age, criminal history, personal
characteristics, and state of mind. (Id. at p. 479.)
                      a.     Nature of the Offense
       “In conducting this inquiry . . . the courts are to consider not only the offense in
the abstract—i.e., as defined by the Legislature—but also ‘the facts of the crime in



       3
          Hammond has presented no evidence regarding sentences imposed for more
serious crimes in California, or regarding punishment for similar offenses in other
jurisdictions. We note, however, that similar sentences for sexual assault have been
upheld on appeal. (See People v. Cartwright (1995) 39 Cal.App.4th 1123 [upholding
indeterminate term of 375 years to life plus a determinate term of 53 years for sexual
assault charges; People v. Wallace (1993) 14 Cal.App.4th 651 [rejecting a cruel and
unusual punishment challenge to a sentence of 283 years 8 months for sexual assaults on
multiple victims]; People v. Retanan (2007) 154 Cal.App.4th 1219 [upholding sentence
of 135 years to life against a cruel and unusual punishment challenge for defendant’s
sexual assaults of three young girls]; see also People v. Alvarado (2001) 87 Cal.App.4th
178 (Alvarado) [upholding a life term for rape committed during a burglary against a
challenge the sentence was cruel and unusual punishment].)
       “That California’s punishment scheme is among the most extreme does not
compel the conclusion that it is unconstitutionally cruel or unusual.” (People v. Martinez
(1999) 71 Cal.App.4th 1502, 1516.) The sentencing scheme “merely reflects the
Legislature’s zero tolerance toward the commission of sexual offenses against
particularly vulnerable victims. It does not, however, render a defendant’s sentence
excessive as a matter of law in every case.” (Alvarado, supra, 87 Cal.App.4th at
pp. 200–201.)


                                               7
question’. . . .” (Dillon, supra, 34 Cal.3d at p. 479, quoting In re Foss (1974) 10 Cal.3d
910, 919.)
       The offense here involved Hammond grabbing a child’s foot, putting it down his
pants, and rubbing it on his penis. Hammond argues there were no threats made or
weapons used, the victim was not physically injured, and it was a single, short incident.
Hammond contends that while this offense should be punished, he should not be
imprisoned for life without the possibility of parole for this conduct.
       Hammond downplays the seriousness of the offenses and the consequences for the
victims. Although Hammond did not subject his victims to intercourse or oral
copulation, the Legislature did not restrict the statute to conduct Hammond considers
more egregious than his own when it made it unlawful to commit any lewd act upon the
body of a child under age 14. The two victims at ages 10 and 12 were identified for
special protection from sexual exploitation, and Hammond violated the statute when he
used their feet for sexual gratification. While it is true Hammond’s offenses could have
been worse, this does not lessen the seriousness of his contact with these victims.
       Further, the fact that neither victim suffered physical harm does not diminish the
emotional anguish experienced by both girls. After the molestation, M.G. was afraid to
ride her bike near her home and would only go to the library with her mother. She had
become cautious in public and if she saw someone who resembled Hammond, she would
become visibly uncomfortable. The court recognized the trauma to both victims. “[T]he
trauma he’s done to her is really immeasurable. We have evidence that the child that this
was done ten years ago to is still traumatized, and we have evidence that this child is
traumatized.”
       In terms of societal harm, committing lewd acts upon 10 and 12-year-old girls
warrants a substantial penalty, and it is not disproportionate punishment when compared
to cases where life sentences have been upheld for non-contact crimes. (See People v.
Mantanez (2002) 98 Cal.App.4th 354, 364-365 [term of 25 years to life under the Three
Strikes law for nonviolent offenses does not constitute cruel and unusual punishment];
In re Coley (2012) 55 Cal.4th 524, 530 [imposition of a 25-year-to-life sentence for


                                              8
failing to register as sex offender upon does not constitute cruel and unusual punishment
in violation of the federal Constitution]; but see In re Rodriguez (1975) 14 Cal.3d 639
[holding sentence was cruel and unusual punishment where defendant had served 22
years for a nonviolent act of child molestation].) “[L]ewd 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, 806.)
       Hammond’s sentence is not based solely on his current offense but upon his
recidivism. (People v. Sullivan, supra, 151 Cal.App.4th at p. 571 [“[The] [d]efendant is
not subject to multiple 25-year-to-life sentences merely on the basis of his current
offenses alone, but also for his recidivist behavior.”) We, therefore, do not consider
Hammond’s offense in isolation, but must consider that Hammond has done this before.
He was sentenced pursuant to sections 667 and 667.61, which impose harsher sentences
on repeat sex offenders. (People v. Mancebo (2002) 27 Cal.4th 735, 740-741.) His
sentence is “justified by the State’s public-safety interest in incapacitating and deterring
recidivist felons.” (Ewing v. California (2003) 538 U.S. 11, 29-30, fn. omitted (Ewing).)
Hammond’s sentence “reflects a rational legislative judgment, entitled to deference, that
offenders who have committed serious or violent felonies and who continue to commit
felonies must be incapacitated.” (Id. at p. 30.)
                     b.      Nature of the Offender
       This 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.” (Dillon, supra, 34 Cal.3d at p. 479.)
       In considering the issue of dangerousness, Hammond admits he poses “some risk
to children,” even if he did not use a weapon or physically injure the victims.
Nevertheless, Hammond contends he has “shown no proclivity to increasing the
conduct,” but this provides no assurance he will not commit a similar offense in the
future. Indeed, his criminal history foreshadows that his conduct is likely to continue if


                                               9
he is released. Hammond committed the offense against A.M. in 2005 and was sentenced
to six years in prison. When he was paroled he was ordered to wear an electronic
monitoring device on his ankle, but this did not prevent him from committing a similar
offense against M.G. after being released from custody. Hammond committed a
probation violation shortly before the current offense against M.G. by viewing child
pornography on his phone. Among others sites, he had viewed several Web sites
showing young girls with adult men fondling their feet as well as adult men having sex
with young girls.
       As early as age 11, he exhibited “sexualized behavior” inappropriate for his age.
He sometimes attempted to touch adults in inappropriate ways and is documented as
trying to grab his teacher’s foot. An evaluation of Hammond at age 12 again discussed
inappropriate sexual behavior, difficulty in social interactions, and speech delays. All of
this evidence demonstrates Hammond’s lifelong proclivity for acting on his inappropriate
sexual impulses.
       Hammond argues that he suffers from severe mental impairments. Hammond has
presented evaluations and assessments from his teachers and counselors in grammar and
high school. They document that Hammond had limited interpersonal skills and
“language delays.” An evaluation concluded Hammond had Attention Deficit
Hyperactivity Disorder and a developmental speech disorder. A mental health
assessment at age 16 found Hammond had “significant difficulty expressing himself
verbally” as well as communicating with others. His “processing is slow.”
       Hammond was evaluated by three psychologists prior to trial. One evaluation
found he had an I.Q. score of 70, at the upper end of the very low range. He had an
expressive language disorder since childhood but had no psychological disorders. The
evaluation found no diagnosis of “mental retardation.” Another evaluation concluded
“Hammond’s most glaring deficit is in his understanding of social norms.”
       Despite his mental impairments, Hammond was able to successfully complete
automotive repair vocational courses in prison and adult school.



                                            10
       Hammond cites to United States Supreme Court cases limiting sentences for
juvenile and intellectually disabled offenders under the Eighth Amendment. (See
Graham v. Florida (2010) 560 U.S. 48 (Graham) [holding the Eighth Amendment
precluded life imprisonment without parole for a juvenile offender convicted of a non-
homicide offense because of a juvenile’s “lessened culpability” and greater capacity for
change]; Miller v. Alabama (2012) ___ U.S. ___, 132 S.Ct. 2455 (Miller) [holding
mandatory life without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on cruel and unusual punishment]; Atkins v.
Virginia (2002) 536 U.S. 304 (Atkins) [holding the Eighth Amendment precluded
execution of a mentally handicapped offender because he did not act with the level of
moral culpability of other offenders].)
       Graham and Miller are based on the premise that “children are constitutionally
different from adults for the purpose of sentencing.” (Miller, supra, 132 S.Ct. at
p. 2464.) Juveniles have diminished culpability and a greater prospect for reform. (Ibid.)
In reaching this conclusion, the Supreme Court relied, in part, on both psychology and
brain science which demonstrate the fundamental differences between juvenile and adult
minds. (Ibid.)
       Hammond argues that while he is an adult in physical age, his mental age is closer
to that of an adolescent. Even if this were true, Hammond was a 31-year-old adult when
he committed the present crime. There is no evidence that Hammond’s brain
development was akin to that of a juvenile. He simply does not have the diminished
culpability or prospect for reform of a juvenile offender. As respondent argues,
Hammond has presented no authority for treating someone who functions like a juvenile
the same as someone who is, in fact, a juvenile under the law. Thus, Hammond’s attempt
to analogize his mental functioning to a juvenile fails.
       Relying on Atkins, Hammond next argues that while his intellectual capabilities
are “ ‘above’ that’ of mental retardation,” he suffers from borderline intellectual
functioning that diminishes his personal culpability. Even if we accept that Hammond
suffers with lack of impulse control, understanding peer responses and social cues, and


                                             11
poor communication skills, this does not equate with the type of mental disability
addressed by the court in Atkins. “ ‘Mental retardation refers to substantial limitations in
present functioning. It is characterized by significantly subaverage intellectual
functioning” along with limited social skills. (Atkins, supra, 536 U.S. at p. 308, fn. 3,
quoting Mental Retardation: Definition, Classification, and Systems of Supports 5
(9th ed. 1992).) These limitations diminish the personal culpability of a mentally
disabled adult. (Id. at p. 318.)
       Hammond has presented no evidence that his intellectual functioning is akin to an
intellectually disabled adult. To the contrary, a competency evaluation in 2012
concluded Hammond is not “mentally retard[ed],” but does have borderline intellectual
functioning and an expressive language disorder. The trial court found Hammond had
managed to be “pretty much self sufficient in his life” and he had completed vocational
courses in prison. In addition, there is no evidence in the record that Hammond’s low
intellect and poor communication skills played a role in his offense. (See People v.
Young (2005) 34 Cal.4th 1149, 1231 [holding imposition of the death penalty was not
grossly disproportionate where there was no evidence that defendant’s low I.Q. or mental
disorder played any role in the killings].) Both of Hammond’s sexual offenses showed he
purposefully approached his victims when they were alone and vulnerable evidencing his
personal culpability. A Fairfield police officer testified at trial that when Hammond was
arrested for the A.M. incident, he stated there were no security cameras in the area where
the incident happened so nobody could have seen him do anything, thereby
demonstrating his awareness of his wrongful conduct. (See Alvarado, supra, 87
Cal.App.4th at p. 200 [“Despite [the] defendant’s age, substance abuse, and disorder, he
fully recognized and acknowledged the magnitude of his conduct immediately after being
caught. Moreover, the callous and opportunistic nature of his sexual assault against a




                                             12
neighbor he knew to be particularly vulnerable seems to us precisely the sort of sexual
offense that warrants harsh punishment.”].)4
        Hammond has failed to demonstrate his intellectual functioning was akin to a
intellectually disabled adult or a juvenile making his sentence disproportionate to his
crime. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292, 1345 [holding the
defendant failed to establish that his condition—an antisocial personality disorder—was
analogous to an intellectual disability or juvenile status for purposes of imposition of the
death penalty].)
        Hammond’s prior criminal conduct—the fact that Hammond committed a similar
offense involving another child—weighs against finding his punishment disproportionate.
“In considering the nature of the offender, we conclude that [the] defendant’s recidivism
warrants lengthy incarceration. [Citations.]” (People v. Martinez, supra, 71 Cal.App.4th
at p. 1512.) This is Hammond’s second offense which was committed while he was on
parole and wearing a GPS anklet.
        “In short, in considering the nature of the offenses and the offender, we conclude
the punishment imposed upon [the] defendant, one who commits repeated molestations
against small children, is not disproportionate to his culpability.” (People v. Christensen,
supra, 229 Cal.App.4th at p. 807.) Hammond qualifies as “ ‘precisely the type of
offender from whom society seeks protection by the use of recidivist statutes.’ ” (People
v. Sullivan, supra, 151 Cal.App.4th at p. 570, quoting People v. Ingram (1995) 40
Cal.App.4th 1397, 1415.)
        Hammond has failed to demonstrate that his sentence is so disproportionate to his
crimes to be unconstitutional. (See Dillon, supra, 34 Cal.3d at pp. 477–478.) While we
recognize that Hammond’s sentence is severe, it is not so severe or disproportionate to
shock the conscience or offend fundamental notions of human dignity. It is therefore not
our role to alter it.


        4
         Additionally, Atkins involved the constitutionality of executing an intellectually
disabled individual and Hammond is not facing the death penalty.


                                             13
       2.     Cruel and Unusual Punishment Under the United States Constitution
       Eighth Amendment disproportionality is very narrow. (Ewing, supra, 538 U.S. at
p. 20.) Successful grossly disproportionate challenges are “ ‘exceedingly rare’ ” and
appear only in an “ ‘extreme’ ” case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
       A proportionality analysis requires consideration of the gravity of the offense and
the harshness of the penalty as well as sentences in the same jurisdiction and the
sentences imposed for commission of the same crime in other jurisdictions. (Solem v.
Helm (1983) 463 U.S. 277, 292.) “But it is only in the rare case where a comparison of
the crime committed and the sentence imposed leads to an inference of gross
disproportionality that the second and third criteria come into play.” (People v. Meeks,
supra, 123 Cal.App.4th at p. 707, quoting Harmelin v. Michigan (1991) 501 U.S. 957,
1005 (conc. opn. of Kennedy, J.).)
       In Ewing, Gary Ewing was sentenced to a term of 25 years to life under
California’s Three Strikes law for stealing three golf clubs priced at $399 each, as theft
with prior convictions for theft and burglary. (Ewing, supra, 538 U.S. at pp. 18, 20.) The
United States Supreme Court applied the principles of gross disproportionality and
deference to legislative policy choices to conclude that Ewing’s sentence of 25 years to
life “is not grossly disproportionate and therefore does not violate the Eighth
Amendment’s prohibition on cruel and unusual punishments.” (Id. at pp. 30–31.)
Similarly, Andrade was sentenced under California’s Three Strikes law to two
consecutive terms of 25 years to life on two counts of petty theft with prior theft-related
convictions. (Lockyer v. Andrade, supra, 538 U.S. at p. 68.) On habeas corpus review,
the United States Supreme Court rejected Andrade’s claim that his sentence violated the
prohibition against cruel and unusual punishment, holding “it was not an unreasonable
application of our clearly established law for the California Court of Appeal to affirm
Andrade’s sentence of two consecutive terms of 25 years to life in prison.” (Id. at p. 77.)
       Hammond’s sentence as a recidivist sex offender is not “grossly disproportionate”
to his crime of a lewd act upon a child under age 14. As the Supreme Court stated in the
context of the Three Strikes law: “When the California Legislature enacted the three


                                             14
strikes law, it made a judgment that protecting the public safety requires incapacitating
criminals who have already been convicted of at least one serious or violent crime.
Nothing in the Eighth Amendment prohibits California from making that choice.”
(Ewing, supra, 538 U.S. at p. 25.)
       In considering the gravity of the offense, the Ewing court looked not only to
Ewing’s current felony, but also to his criminal history. The court stated “[a]ny other
approach would fail to accord proper deference to the policy that judgments find
expression in the legislature’s choice of sanctions. In imposing a three strikes sentence,
the State’s interest is not merely punishing the offense of conviction . . . ‘[i]t is in
addition the interest . . . in dealing in a harsher manner with those who by repeated
criminal acts have shown that they are simply incapable of conforming to the norms of
society as established by its criminal law.’ ” (Ewing, supra, 538 U.S. at p. 29, quoting
Rummel v. Estelle (1980) 445 U.S. 263, 276.)
       Hammond’s crime certainly is more serious than the theft of golf clubs in Ewing
or other nonviolent offenses. (See People v. Mantanez, supra, 98 Cal.App.4th at
pp. 364-365 [term of 25 years to life under the Three Strikes law for a nonviolent offense
does not constitute cruel and unusual punishment].) It is also more serious than the
simple failure to register as a sex offender (In re Coley, supra, 55 Cal.4th at p. 530
[imposition of a 25-year-to-life sentence for failing to register as sex offender does not
constitute cruel and unusual punishment in violation of the federal Constitution]), or
possession of drugs (Harmelin v. Michigan, supra, 501 U.S. at p. 961 [life without
possibility of parole sentence for possession of 672 grams of cocaine not cruel and
unusual].) It is significant that Hammond was convicted of the same offense against a
young girl previously. Given the seriousness of the current offense and his prior offense,
his sentence is not grossly disproportionate and does not present the “exceedingly rare”
case of cruel and unusual punishment under the Eighth Amendment.
       A lengthy prison sentence for a repeat offender, pursuant to a recidivist statute,
does not constitute cruel and unusual punishment. (Harmelin v. Michigan, supra, 501
U.S. at p. 996; Rummel v. Estelle, supra, 445 U.S. 263.)


                                               15
       B.     The Court Did Not Abuse Its Discretion in Imposing a Restitution Fine
       On appeal, Hammond argues that the court was required to hold a hearing on his
ability to pay a restitution fine, and the matter must be remanded for the trial court to
conduct such a hearing.
       We review the imposition of a restitution fine for an abuse of discretion. (People
v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.)
       “In setting a felony restitution fine, the court may determine the amount of the fine
as the product of the minimum fine pursuant to paragraph (1) [setting forth amounts]
multiplied by the number of years of imprisonment the defendant is ordered to serve,
multiplied by the number of felony counts of which the defendant is convicted. [¶] . . .
The court shall impose the restitution fine unless it finds compelling and extraordinary
reasons for not doing so and states those reasons on the record. A defendant’s inability to
pay shall not be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in increasing the amount of the
restitution fine in excess of the minimum fine.” (§ 1202.4, subds. (b)(2), (c).)
       The court shall consider a number of factors when determining the amount of the
fine including “the defendant’s inability to pay, the seriousness and gravity of the offense
and the circumstances of its commission, any economic gain derived by the defendant as
a result of the crime, the extent to which any other person suffered losses as a result of
the crime, and the number of victims involved in the crime . . . .” (§ 1202.4, subd. (d).)
The losses may include “intangible losses, such as psychological harm caused by the
crime.” (Ibid.) The court is not required to make express findings as to the factors
bearing on the amount of the fine and a separate hearing is not required. (Ibid.) It is the
defendant’s burden to show his inability to pay a restitution fine. (Ibid.)
       At sentencing, the court ordered Hammond to pay a restitution fine in the amount
of $10,000. Counsel raised no objection. After the court reserved the issue of restitution




                                             16
pursuant to section 1202.46,5 and discussed sentencing credits and sex offender
registration, it ordered Hammond to pay a court security surcharge of $40 and a criminal
conviction fee of $30. Counsel then stated: “I would object on the basis that he has no
ability to pay.” The court noted the objection but left its order unchanged.
       As an initial matter, respondent asserts that Hammond has forfeited this claim by
failing to raise it below. A defendant forfeits a claim based on his inability to pay by
failing to raise it at the time of sentencing. (People v. Nelson (2011) 51 Cal.4th 198, 227
[the defendant could have objected at the time the fine was imposed if he believed
inadequate consideration was being given to his inability to pay].)
       From our review of the record, it is unclear if counsel’s objection after the court
imposed the court fees was meant to address only the $70 at issue or the larger issue of
the restitution fine. We need not resolve this factual issue because even if we address the
claim on the merits, it fails. Hammond has failed to carry his burden of demonstrating
his inability to pay. Hammond’s argument that he was “denied the opportunity to meet
[his] burden” and “not provided any opportunity to argue the issue” is meritless.
Hammond filed a 16-page sentencing motion with 47 pages of exhibits where he could
have addressed his inability to pay. The court is required to impose a restitution fine
unless it finds “compelling and extraordinary reasons for not doing so.” (§ 1202.4,
subd. (c).) It was therefore no surprise that the court would impose a fine at sentencing
and that the fine would be substantial given the statutory formula and the mandatory
sentence of imprisonment required in this case.
       Hammond’s attorney did not request a hearing on Hammond’s ability to pay, and
failed to present any evidence that he would be unable to pay the fine. The evidence
before the court supported an implied finding that Hammond had the ability to pay.
“ ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court
is not limited to considering a defendant’s present ability but may consider a defendant’s

       5
          Section 1202.46 provides when the economic losses of the victim cannot be
ascertained at the time of sentencing, the court may retain jurisdiction for purposes of a
restitution order. (§ 1202.46.)


                                             17
ability to pay in the future.’ ” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837,
quoting People v. Frye (1994) 21 Cal.App.4th 1483, 1487, original italics.) This includes
the defendant’s ability to obtain prison wages. (People v. Hennessey, at p. 1837.) Given
Hammond’s completion of adult school and automotive courses in prison, the court could
properly conclude Hammond had the ability to earn prison wages.
       In People v. Gamache (2010) 48 Cal.4th 347, our Supreme Court rejected a
similar claim. The court found the defendant “points to no evidence in the record
supporting his inability to pay, beyond the bare fact of his impending incarceration. Nor
does he identify anything in the record indicating the trial court breached its duty to
consider his ability to pay; as the trial court was not obligated to make express findings
concerning his ability to pay, the absence of any findings does not demonstrate it failed to
consider this factor. Thus, we cannot say on this record that the trial court abused its
discretion.” (Id. at p. 409; see also People v. Nelson, supra, 51 Cal.4th at p. 227.)
       There is no evidence that the trial court failed to consider Hammond’s inability to
pay or the other factors in calculating the amount of the restitution fine. We find no
abuse of discretion.
                                             IV.
                                      DISPOSITION
       The judgment is affirmed.




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                                  _________________________
                                  RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
STREETER. J.




A142892, People v. Hammond


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