PEOPLE v. ROJANO-NIETO

No. D070919.

THE PEOPLE, Plaintiff and Appellant, v. KEVIN JONAS ROJANO-NIETO, Defendant and Respondent.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Tony Rackauckas , District Attorney, and Matthew Lockhart , Deputy District Attorney, for Plaintiff and Appellant.

Christopher Nalls , under appointment by the Court of Appeal, for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IRION, J.

A jury convicted Kevin Jonas Rojano-Nieto (Rojano) of one count of sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a))1 and one count of committing a lewd act on a child under 14 years old (§ 288, subd. (a)). At sentencing, the trial court determined that the statutorily prescribed sentence of 25 years to life for the sodomy offense would constitute cruel or unusual punishment under the California Constitution (art. I, § 17) and would violate the Eighth Amendment to the United States Constitution. Accordingly, the trial court imposed a determinate prison sentence of eight years for the sodomy conviction (§ 288.7, subd. (a)), to be served consecutively with a two-year sentence for the lewd act conviction (§ 288, subd. (a)), for a total sentence of 10 years.

The People appeal from the sentence, contending that the trial court erred in not imposing a 25-year-to-life sentence for the sodomy count. On our de novo review of the legal issue presented, we conclude that a 25-year-to-life sentence for Rojano's conviction of sodomy with a child 10 years old or younger is constitutionally permissible. Accordingly, we reverse the sentence and remand for the trial court to resentence Rojano according to the statutory requirements.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Rojano, who was 19 years old at the time of the crimes, lived at home with his mother, stepfather and several half-siblings. On the day of the crimes, Rojano was in the detached garage playing video games, and his mother2 and grandmother were in the house preparing a meal. Mother went into the bathroom for a few minutes and left three-year-old Jane Doe in the care of the grandmother.

When Mother came out of the bathroom, she looked for Jane Doe but could not find her. Mother first went to the garage to look for Jane Doe and tried to open the door to the garage, but it was locked, and no one responded despite her knocks. Mother then went to the neighbors to look for Jane Doe, and not finding her there, Mother returned to the garage and tried the door again. This time, Mother was able to open the door because it was unlocked, and she saw Jane Doe and Rojano in the garage. Jane Doe was picking up coins off of the floor, and Rojano was preparing to play a video game. Mother asked Rojano why the door had been locked, and Rojano stated that Jane Doe had locked it.

Mother took Jane Doe back into the house, where Jane Doe immediately told Mother that her buttocks hurt, using the Spanish word "pompis." Mother asked why it hurt, and Jane Doe stated that Rojano had put his penis there. Mother asked Jane Doe to repeat what she said, and Jane Doe said the same thing again. Mother then attempted to examine Jane Doe's body and noticed what was possibly a small amount of blood on Jane Doe's underwear. Mother confronted Rojano with what Jane Doe had told her, and Rojano said that it wasn't true.

Mother took Jane Doe to a hospital clinic, and Jane Doe was examined by a nurse trained to perform sexual assault examinations. The nurse found two lacerations in Jane Doe's anus, which were caused by blunt force trauma and consistent with penetration by a penis.

On the same day, Rojano was arrested and interviewed at the police station. Rojano initially denied molesting Jane Doe and attempted to explain Jane Doe's injuries by stating that he had kicked Jane Doe because she was bothering him in the garage. After the officer questioning Rojano stated that Jane Doe had been examined at the hospital and her injuries were not caused by having been kicked, the officer stopped the interview for approximately half an hour. When the interview resumed, Rojano disclosed that he had put his penis in Jane Doe's "butt." Specifically, Rojano stated that he picked up Jane Doe and then pulled down her pants. According to Rojano, the sodomy lasted for "five seconds" and then "[l]ike it clicked and I stopped." Rojano stated, "[W]hen I saw it was my little sister I stopped and she said it hurt and . . . I said I was sorry." When the officer asked Rojano what happened afterwards, Rojano stated, "Nothing, I just . . . I said sorry."

Jane Doe was interviewed eight days later by a social worker. Jane Doe stated that Rojano had put his penis in her buttocks and was going to buy her Cheetos. Jane Doe stated that afterwards, Rojano told her to "grab his penis" and "to do like this" and his penis was "going out and opening." Jane Doe stated that Rojano was "shutting me up" during the incident, but did not further clarify what she meant.

Rojano was charged with one count of sodomy with a child 10 years old or younger (§ 288.7, subd. (a)) (count 1) and one count of committing a lewd act on a child under 14 years old (§ 288, subd. (a)) (count 2). After a jury trial, Rojano was convicted on both counts.

At the initial sentencing hearing, the trial court continued the hearing and requested that the parties provide briefing on the issue of whether the 25-year-to-life sentence, which is statutorily required for the conviction of sodomy with a child 10 years old or younger (§ 288.7, subd. (a)), constitutes cruel and unusual punishment as applied to Rojano's case.3 In requesting briefing on the cruel and unusual punishment issue, the trial court referred to the Eighth Amendment to the United States Constitution rather than to the California Constitution. However, the authorities that the trial court mentioned to counsel to direct their research arose solely under article I, section 17 of the California Constitution, which proscribes "cruel or unusual punishment."

In the parties' supplemental sentencing briefs requested by the trial court, the People cited exclusively to case law arising under the California Constitution. Similarly, defense counsel focused his substantive argument on the standards for assessing cruel or unusual punishment under the California Constitution, while only including a short preliminary paragraph describing the legal standards that apply under the Eighth Amendment to the United States Constitution.

At the final sentencing hearing, the trial court concluded that a sentence of 25 years to life for the conviction under section 288.7, subdivision (a) would constitute cruel and unusual punishment. The trial court provided an extensive explanation for its decision, both orally at the sentencing hearing and in a written sentencing analysis that it made part of the record. The trial court's comments included factual findings as well as legal analysis. Although the trial court stated that the 25-year-to-life sentence would be unconstitutional under the California Constitution and the Eighth Amendment, in its extensive discussion of legal authority, the trial court cited only authorities arising under the California Constitution, and the trial court expressly applied the three-pronged legal analysis required by case law arising under our state Constitution. (See, e.g., In re Lynch (1972) 8 Cal.3d 410 (Lynch); People v. Dillon (1983) 34 Cal.3d 441 (Dillon).)

Applying the standards applicable under the California Constitution, the trial court concluded that the 25-year-to-life sentence for Rojano's crime is "grossly disproportionate to his individual culpability." Among other things, the trial court stated that this case was "not typical of a predatory violent brutal type of sodomy of a child case," and "although this is a despicable serious crime, it doesn't compare to a situation where a pedophile or a child predator preys on an innocent child." The trial court stated that Rojano "did not appear to consciously intend to harm [Jane Doe] when he sexually assaulted her," and "[t]he facts don't support there was any violence or callous disregard for [Jane Doe's] well-being even though I say the act was despicable."

As the trial court characterized the situation, "in an instant [Rojano] reacted to a sexual urge and stopped almost immediately after he began the act" and "[w]ithin seconds of commencing his offense." Further, the trial court found that "[t]hroughout this case, [Rojano] has shown extreme remorse for his actions. . . ." The trial court also cited a forensic psychological evaluation performed on Rojano, in which the psychologist stated that Rojano's risk for recidivism was "low" (meaning a 15 percent risk within seven years) and that, although he did not administer the Abel Assessment for Sexual Interest — 3rd edition (AASI-3), which would better assess whether Rojano had a pedophilic sexual orientation, "[i]t does not appear clinically probable that Mr. Rojano is fundamentally pedophilic in his sexual orientation."4 The trial court also referred to the psychological evaluation's conclusion that "[t]he history that Mr. Rojano conveyed suggests that he is an extremely immature, socially withdrawn and avoidant young man. . . ."

Instead of imposing a 25-year-to-life sentence for the conviction as required by section 288.7, subdivision (a), the trial court arrived at an alternative sentence by referring to the penalty in section 286, subdivision (c) for sodomy of a child under the age of 14 and more than 10 years younger than the perpetrator. That provision provides for a penalty of three, six or eight years. (Ibid.) The trial court selected the upper-term sentence of eight years and imposed it for Rojano's conviction under section 288.7, subdivision (a). The trial court also imposed a consecutive two-year sentence for the lewd act count (§ 288, subd. (a)), for a total prison sentence of 10 years.

The People filed a notice of appeal pursuant to section 1288, subdivision (a)(10) from "the trial court's . . . imposition of a determinate sentence of 10 years."

II.

DISCUSSION

A. Applicable Law

We begin our analysis of the People's appeal by reviewing the legal standards applicable to a challenge to a statutorily required sentence on the ground that it constitutes cruel and/or unusual punishment.

"The Eighth Amendment to the United States Constitution applies to the states. (People v. Caballero (2012) 55 Cal.4th 262, 265, fn. 1.) It prohibits the infliction of `cruel and unusual' punishment. (U.S. Const., 8th Amend., italics added.) Article I, section 17 of the California Constitution prohibits infliction of `[c]ruel or unusual' punishment. (Italics added.) The distinction in wording is `purposeful and substantive rather than merely semantic. [Citations.]' (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.) As a result, we construe the state constitutional provision `separately from its counterpart in the federal Constitution. [Citation.]' (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.)" (People v. Palafox (2014) 231 Cal.App.4th 68, 82 (Palafox).)

We accordingly set forth the standards under both the state and federal Constitutions.

1. The California Constitution

"A prison sentence will violate the prohibition against cruel or unusual punishment under the California Constitution (Cal. Const., art. I, § 17) where `"it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity."' (Dillon [, supra,] 34 Cal.3d 441, 478; see also People v. Boyce (2014) 59 Cal.4th 672, 718-719.) A defendant has a `considerable burden' to show a punishment is cruel or unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.) `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 the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment.' (Ibid.) Thus, `"[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. . . ."' (People v. Meneses (2011) 193 Cal.App.4th 1087, 1093.)" (People v. Reyes (2016) 246 Cal.App.4th 62, 86 (Reyes).) "`[F]indings of disproportionality have occurred with exquisite rarity in the case law.'" (In re Nuñez (2009) 173 Cal.App.4th 709, 725.) "`"Only when the punishment is out of all proportion to the offense and is clearly an extraordinary penalty for a crime of ordinary gravity committed under ordinary circumstances, do the courts denounce it as unusual."'" (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390 (Rhodes).)

Under California law, a three-pronged test is applied to determine whether a particular sentence is unconstitutionally disproportionate to the offense for which it is imposed. In the first prong, we "examine `the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.' ([Lynch, supra,] 8 Cal.3d 410, 425; Dillon, supra, 34 Cal.3d at p. 479; People v. O'Connor (1986) 188 Cal.App.3d 645, 648.) `A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into 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. Thongvilay (1998) 62 Cal.App.4th 71, 88.)" (Reyes, supra, 246 Cal.App.4th at pp. 86-87.) In the second prong, we "compare the punishment imposed with punishments prescribed by California law for more serious offenses." (Reyes, at p. 87, citing Lynch, at pp. 426-427.) Finally, in the third prong, "we compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense." (Reyes, at p. 87, citing Lynch, at pp. 427-429.)

"The importance of each of these prongs depends upon the facts of each specific case. . . . Indeed, we may base our decision on the first prong alone." (People v. Johnson (2010) 183 Cal.App.4th 253, 297, citation omitted.) In the instant case, the trial court expressly focused primarily on the first prong (i.e., the nature of the offense and the offender), but it also briefly discussed the significance of the second and third prongs.

2. The United States Constitution

"[I]t is now firmly established that `[t]he concept of proportionality is central to the Eighth Amendment,' and that `[e]mbodied in the Constitution's ban on cruel and unusual punishments is the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense."'" (In re Coley (2012) 55 Cal.4th 524, 538 (Coley), quoting Graham v. Florida (2010) 560 U.S. 48, 59 (Graham).) "[T]he Eighth Amendment contains a `narrow proportionality principle,' that `does not require strict proportionality between crime and sentence' but rather `forbids only extreme sentences that are "grossly disproportionate" to the crime.'" (Graham, at pp. 59-60.)

A three-part approach is applied to determine whether a sentence for a term of years is grossly disproportionate for a particular defendant's crime under the federal Constitution. "A court must begin by comparing the gravity of the offense and the severity of the sentence. . . . `[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. . . . If this comparative analysis `validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Graham, supra, 560 U.S. at p. 60, citations omitted.)

Under the federal Constitution, "[o]utside the death penalty context, `"successful challenges to the proportionality of particular sentences have been exceedingly rare."' . . . There is no question that `the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is "properly within the province of legislatures, not courts."' . . . It is for this reason that when faced with an allegation that a particular sentence amounts to cruel and unusual punishment, `[r]eviewing courts . . . should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. . . .'" (Reyes, supra, 246 Cal.App.4th at p. 83, citations omitted.)

As shown by the authorities we have cited above, the federal and state constitutional standards for assessing whether a statutorily prescribed sentence amounts to cruel and/or unusual punishment, the standards are very similar, and "the federal Constitution affords no greater protection than the state Constitution." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510 (Martinez).) "Although articulated slightly differently, both standards prohibit punishment that is `grossly disproportionate' to the crime or the individual culpability of the defendant." (People v. Mendez (2010) 188 Cal.App.4th 47, 64.) Moreover, "[u]nder both standards, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions." (Ibid.) Although we "construe the state constitutional provision `separately from its counterpart in the federal Constitution[,]' . . . [t]his does not make a difference from an analytic perspective." (Palafox, supra, 231 Cal.App.4th at p. 82, citation omitted.) "The touchstone in each is gross disproportionality." (Ibid.)

3. Standard of Review

"`Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.'" (Rhodes, supra, 126 Cal.App.4th at p. 1390.) "Therefore, subject to a trial court's findings of the underlying facts on substantial conflicting evidence, a trial court's reduction of punishment . . . presents a question of law for an appellate court's independent review, not a discretionary decision to which the appellate court must defer." (People v. Mora (1995) 39 Cal.App.4th 607, 615 (Mora); see also Coley, supra, 55 Cal.4th at pp. 555-556 ["in analyzing a claim that a sentence constitutes cruel and unusual punishment under the Eighth Amendment, a court may rely upon a factual finding regarding the circumstances relating to the offense that is made by a trial court in the course of a sentencing hearing"].)

B. The People's Appeal Is Not Moot Due to Their Failure to Present an Argument Based on the Federal Constitution

Before considering the merits of the People's appeal from the sentence, we address a preliminary issue raised in Rojano's respondent's brief. Specifically, Rojano contends that this appeal is moot because the People's opening brief on appeal does not address the trial court's ruling that the 25-year-to-life sentence was unconstitutional under the Eighth Amendment to the federal Constitution.

As we have discussed, in summarizing its ruling the trial court stated that a 25-year-to-life sentence would be unconstitutional under both the California Constitution and the federal Constitution. Nevertheless, the trial court's lengthy legal analysis cited no authorities applying the Eighth Amendment and focused solely on the three-pronged test used by courts in California to determine whether a sentence constitutes cruel or unusual punishment under the California Constitution.

As Rojano points out, the People's opening brief includes no argument concerning the federal Constitution, and the People focus their argument solely on the issue of whether the trial court erred in concluding that a 25-year-to-life sentence would be cruel or unusual punishment under the California Constitution. Rojano argues that because the People have failed to challenge the portion of the trial court's ruling based on the federal Constitution, that portion of the trial court's ruling should survive the People's appeal of the sentence. Rojano argues, "Because the trial court's ruling under the federal Constitution — and [Rojano's] current sentence — will stand even if this Court agrees with the People, the appeal is moot and should be dismissed." As we will explain, we reject Rojano's argument.

In their notice of appeal, the People have appealed from "the trial court's . . . imposition of a determinate sentence of 10 years," not just from the trial court's determination that such a sentence is required under the California Constitution. The People's designation of issues on appeal frames the issue at stake, namely whether — on any ground — the trial court was legally justified in departing from the statutorily required 25-year-to-life sentence in section 288.7, subdivision (a) and instead imposing a total sentence of 10 years. With the People having raised a challenge to the legality of the sentence, "`[i]t is a defendant's burden to prove the punishment prescribed for his or her offense is unconstitutional.'" (People v. King (1993) 16 Cal.App.4th 567, 572.) Therefore, the People do not have the burden to raise and defeat every possible legal ground for a departure from the 25-year-to-life sentence. Instead, it is ultimately Rojano's burden to establish, in the context of our de novo review, that the trial court's imposition of a 10-year sentence is justified on any applicable ground.

Moreover, in the specific context of this action, it is understandable that the People proceeded in their opening brief by limiting their discussion to the California Constitution's prohibition on cruel or unusual punishment. As we have explained, although the trial court stated that it was basing its decision on both the California Constitution and the federal Constitution, it provided absolutely no legal analysis or authority relevant to the federal constitutional issue. Therefore, we do not interpret the People's failure to provide legal analysis on the federal constitutional issue as an implicit acknowledgment that the trial court's ruling on that issue was correct and not vulnerable to challenge on appeal. Instead, we understand the People's approach as a recognition that because the trial court's legal analysis did not substantively rely on the Eighth Amendment, legal analysis of that issue on appeal would not be relevant in challenging the trial court's imposition of sentence.

It is also important to recognize, as we have explained above, that the state and federal standards for assessing whether a statutorily required sentence constitutes cruel and/or unusual punishment are very similar. On this issue, "the federal Constitution affords no greater protection than the state Constitution" (Martinez, supra, 71 Cal.App.4th at p. 1510), and "[t]he touchstone in each is gross disproportionality." (Palafox, supra, 231 Cal.App.4th at p. 82.) Accordingly, the omission of an argument regarding the federal constitutional standards for cruel and unusual punishment does not materially change our analysis. By thoroughly briefing the issue of gross disproportionality as it arises under the California Constitution, the People have adequately addressed the ultimate legal issue of gross disproportionality that would also be relevant under an Eighth Amendment analysis. Further, because of the similarity of the two standards, it is not reasonable to understand the People's briefing as taking the position that a 25-year-to-life sentence would be grossly disproportionate under the federal Constitution but not under the California Constitution.

Based on the foregoing, we reject Rojano's argument that the People's appeal is moot, and we proceed to address the merits of the People's appeal from the sentence.5

C. A Sentence of 25 Years to Life Is Not Grossly Disproportionate to Rojano's Crime Under the California Constitution

We now turn to the main issue presented by the appeal, namely whether, under the California Constitution, imposition of a 25-year-to-life sentence for Rojano's act of sodomy against Jane Doe constitutes cruel and unusual punishment, in that "`it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (Dillon, supra, 34 Cal.3d at p. 478.) As we have explained, we apply a de novo standard of review, but we accept the trial court's findings of fact to the extent they are supported by substantial evidence. (Mora, supra, 39 Cal.App.4th at p. 615.)

In conducting our analysis, we keep in mind that "`[w]hether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty "out of all proportion to the offense" [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.'" (Dillon, supra, 34 Cal.3d at p. 478.)

1. The First Prong of the Analysis: The Nature of the Offense and the Offender

The first prong of the inquiry under the California Constitution focuses on "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425.)

a. The Nature of the Offense

In examining the nature of the offense, we look to "`the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts.'" (Reyes, supra, 246 Cal.App.4th at p. 87.)

The offense at issue is sodomy of a three-year-old child. The parties and the trial court are all in accord that sodomy of a young child is a heinous and serious crime. The Legislature has made the judgment that such a crime is so grave an offense that a mandatory sentence of 25 years to life is warranted. Neither Rojano nor the trial court took the position that such a sentence is never constitutionally permissible. Indeed, the trial court recognized that "[s]odomy of a [three-]year-old child is a horrific crime, and imposition of harsh punishment will ordinarily not give rise to constitutional concerns." Instead, the issue is whether, based on the specific facts of Rojano's offense, it would be cruel and unusual punishment to subject him to a term of 25 years to life.

In analyzing the nature of the offense, the trial court concluded that Rojano's offense was an aberration and outside of the scope of the criminal behavior normally targeted by section 288.7, subdivision (a) because of the very brief and impulsive nature of Rojano's acts. The trial court explained that Rojano "inexplicably became sexually aroused but did not appear to consciously intend to harm [Jane Doe]." The trial court stated that "in an instant, he reacted to a sexual urge and stopped almost immediately after he put his penis in [Jane Doe's] anus," and "within seconds of commencing his offense, [Rojano] realized the wrongfulness of his act and stopped." In the trial court's view, these facts distinguished Rojano's case from "a predatory, violent brutal sodomy of a child case."

We do not agree with the trial court's assessment of the significance of Rojano's actions. Although the trial court minimized the serious nature of Rojano's molestation of Jane Doe by characterizing it as happening "in an instant" and stopping "within seconds" when Rojano "realized the wrongfulness of his act," the trial court ignored important undisputed evidence about the entire scope of Rojano's actions. Crucially, Rojano was charged with and convicted of two separate criminal acts against Jane Doe, namely (1) sodomizing her, which was the factual basis for count 1; and (2) making her touch his penis and masturbate him, which was the factual basis for count 2. During the interview with the social worker, Jane Doe stated that Rojano made her touch his penis after he sodomized her. Therefore, it is simply not accurate to characterize the evidence as showing that Rojano acted momentarily and impulsively, and then immediately stopped the molestation when he recognized that it was wrong. Instead of ceasing the molestation after sodomizing Jane Doe, Rojano continued to molest Jane Doe by committing a second sexually predatory criminal act. Further, the evidence shows that rather than being based on a momentary impulse that occurred in an "instant," Rojano's molestation of Jane Doe was something upon which he had time to reflect before acting. Specifically, Rojano locked the garage door and spoke with Jane Doe about buying Cheetos before commencing his wrongful acts.

As the People point out, one case in which our Supreme Court determined that the nature of the offense required a lesser punishment was Dillon, supra, 34 Cal.3d 441. In Dillon, our high court reduced a life sentence for first degree murder to manslaughter where the 17-year-old defendant unwittingly got himself into a dangerous situation when attempting to rob a marijuana farm and panicked, shooting a man he thought was about to shoot him. (Dillon, at pp. 482-483, 488.) Unlike the defendant in Dillon, Rojano "was in complete control of the situation[ and] his actions were unprovoked." (Reyes, supra, 246 Cal.App.4th at p. 88.) Rojano consciously decided to sexually molest Jane Doe, as shown the by the fact that he locked the garage door, promised to buy her Cheetos, sodomized her, and then decided to have her masturbate him.

We must also focus on the consequences of Rojano's acts. Here, Rojano caused painful anal lacerations to Jane Doe. Moreover, as the trial court recognized, although Jane Doe appeared to be a happy, healthy child when she appeared briefly during the trial, "[i]t is hard to gauge how this crime might affect her mental state in the future. . . ."

The trial court found it significant that Jane Doe "did not suffer serious violent physical injuries" and contrasted Rojano's case with a "violent brutal sodomy of a child case." We do not agree with this analysis. Violent physical injury is not what makes the crime of sodomy against a young child a serious and horrific crime. The Legislature has made the judgment that certain sex crimes involving minors are "very grave offenses that warrant severe punishment." (Reyes, supra, 246 Cal.App.4th at p. 85.) In such cases "[i]t is of no moment that [the defendant] did not use violence or physically injure [the minor victim,]" and the defendant does "not have to hurt [the victim] in order to do permanent psychological damage." (Ibid.) "Above and beyond the protection afforded to all victims of sexual assault, the Legislature has determined that children are uniquely susceptible to `outrage' and exploitation. Hence, special laws on the subject of sex with children have been enacted. They expand the kinds of acts which may be deemed criminal sexual misconduct, and they generally operate without regard to force, fear, or consent." (Scott, supra, 9 Cal.4th at pp. 341-342.) Put simply, a sex offense against a small child is a grave offense because of the vulnerable nature of the victim and the risk of psychological harm to the child, regardless of any associated physical injury. Therefore Jane Doe's limited physical injuries and the absence of a violent physical attack are not significant to our assessment of the serious nature of Rojano's offense.

b. The Nature of the Offender

The other half of the first-prong inquiry focuses on the nature of the offender. We inquire 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."'" (Reyes, supra, 246 Cal.App.4th at p. 87.)

In analyzing the nature of the offender, the trial court placed great emphasis on its view that "[t]hroughout this case, [Rojano] has shown extreme remorse for his actions. . . ." Although we accept the trial court's findings regarding Rojano's demonstration of remorse at trial, as the trial court was in the best position to witness Rojano's demeanor, we do not find Rojano's remorse during trial to be of great significance here. Just as Rojano did not immediately stop his criminal behavior against Jane Doe after the sodomy, Rojano also did not immediately take responsibility for the wrongfulness of his actions and did not express immediate remorse. Instead, Rojano denied his actions to his mother, and he also refused to admit the molestation during the police interview until after he was confronted with the fact of Jane Doe's injuries. Even then, he did not admit to the second act of molestation, telling the police that nothing happened after he ceased the sodomy. Moreover, in assessing how Rojano's expressions of remorse relate to the central issue "of the degree of danger . . . to society" presented by Rojano (Lynch, supra, 8 Cal.3d at p. 425), we note that Rojano's expressions of remorse during the police interview focused on the fact that Jane Doe was his sister ("when I saw it was my little sister I stopped"), not on the fact that it was wrong to molest a three-year-old child. We therefore question whether Rojano's expression of remorse demonstrates that he no longer poses a danger of reoffending as a child molester, as opposed to showing that he understands the taboo against committing incest.

In evaluating Rojano's individual characteristics, the trial court also noted the discussion in the psychological evaluation regarding whether Rojano was a pedophile. As the trial court described the evaluation, it concluded that Rojano "is not a sexual predator and is not a pedophile, nor a sexual deviant." As we have discussed, however, the psychological evaluation presented a qualified opinion on that issue, stating that "[i]t does not appear clinically probable that Mr. Rojano is fundamentally pedophilic in his sexual orientation[,]" but that to obtain an objective assessment it "would be advisable" to administer the AASI-3. We therefore do not give the psychological evaluation the weight that the trial court accorded it.

The trial court also pointed to Rojano's lack of criminal history and his apparent immaturity. However, these factors do not convince us that Rojano poses little danger of reoffending or has a reduced level of culpability for his crime. Defendants who commit sex crimes against children are not necessarily "typical" criminals, but instead are individuals who frequently are unable to resist pedophilic urges although able to otherwise lead law-abiding lives. As the trial court described the situation that led to Rojano's molestation of Jane Doe, "[h]e inexplicably became sexually aroused [and] reacted to a sexual urge." Nothing in the psychological evaluation or the facts of Rojano's social background give us comfort that Rojano would not act similarly in the future when confronted with another urge, despite his lack of criminal history. Immaturity becomes relevant to a gross-disproportionality analysis when the defendant's immaturity lessens his culpability, such as in Dillon, when "there [was] ample evidence that because of [the 17-year-old defendant's] immaturity he neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate." (Dillon, supra, 34 Cal.3d at p. 488.) Here, in contrast, Rojano was a 19-year-old adult when he molested Jane Doe, not a juvenile. Plus, the evidence does not show that Rojano's "extreme[] immatur[ity]" as described in the psychological evaluation was the cause of his decision to act on his sexual impulses or that the process of maturation necessarily will lessen Rojano's risk of reoffending. Even an extremely immature 19-year-old should understand that it is wrong to sodomize a three-year-old child and should be able to control his sexual impulses.

In sum, based on our assessment of the nature of the offense and the offender, we do not view Rojano's offense as being materially different from other acts of sodomy on a child under 10 years old, which the Legislature has determined should be punished by a term of 25 years to life.

2. The Second Prong: A Comparison of the Punishment for More Serious Crimes in California

The second prong of the gross-disproportionality analysis under the California Constitution "compare[s] the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." (Lynch, supra, 8 Cal.3d at p. 426.)

Neither the trial court nor the parties focus special attention on this prong of the analysis. However, Rojano makes a brief argument, pointing out that "[f]or first-time offenders, the only common California offense providing for punishment greater than the 25-year[]-to-life sentence mandated by section 288.7, subdivision (a), is first degree murder[,]" and that "[m]ost violent felonies . . . have punishments less than 25 years to life." Despite this observation, however, Rojano fails to explain why the crime of sodomizing a child 10 years old or younger should be deemed to be a less serious crime than the violent felonies that he has cited.

The crime of sodomy on a young child is a very serious crime. "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, 806.)

We must keep in mind that "[f]ixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) Further, children are particularly vulnerable victims, and "great deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." (In re Wells (1975) 46 Cal.App.3d 592, 599.) As in other cases involving child victims of sexual crimes, "[w]e accept and defer to the California Legislature's judgment that sex crimes against minors" "are very grave offenses that warrant severe punishment." (Reyes, supra, 246 Cal.App.4th at p. 85.)

The Legislature's choice to penalize a violation of section 288.7, subdivision (a) with a sentence of 25 years to life shows that the Legislature views sodomy of a child under the age of 10 as a heinous and serious crime. The fact a violation of section 288.7, subdivision (a) carries a punishment the same as or greater than that imposed for other heinous crimes does not make that punishment grossly disproportionate to the offense.

3. The Third Prong: A Comparison of the Punishment for Analogous Crimes in Other Jurisdictions

The third prong of the analysis "compare[s] the punishment imposed with punishments prescribed by other jurisdictions for the same offense." (Reyes, supra, 246 Cal.App.4th at p. 87.) "[I]f the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness." (Lynch, supra, 8 Cal.3d at p. 427.)

Neither Rojano nor the trial court placed great emphasis on this factor, although the People provided to the trial court a comprehensive survey of the penalties for analogous crimes in the rest of the country. On appeal the People have provided us with a revised survey attached to their reply brief.

Relying on the original survey of the penalties in other jurisdictions that the People submitted to the trial court, Rojano contends that a sentence of 25 years to life is excessive because "in at least 16 states, trial courts have the statutory discretion to give the exact sentence [Rojano] received here: a determinate term of 10 years." The People take issue with Rojano's argument on two grounds.

First, the People point out that, based on their revised survey, Rojano is incorrect about the sentencing schemes in several of the states that he cites. Second, the People argue that regardless of the accuracy of the sentencing schemes cited by Rojano, his "interjurisdictional comparison . . . misses the issue completely. . . . [A] proportionality inquiry is not concerned with whether some states might give the sentence the trial court gave, but rather whether a comparison with the other [50] jurisdictions reveals that the California Legislature's mandatory sentence . . . is out of line with other United States jurisdictions." We are persuaded by the People's second argument.

Among the relevant comparisons shown by the People's revised survey, "[n]ine states have the same 25[-]year[-]to[-]life sentence as California."6 "Five states have a 25-year mandatory minimum, although life is not required. . . ."7 And one state has a sentence of 35 years to life.8 Based on these comparisons, we are persuaded that a sentence of 25 years to life is not excessive for a violation of section 288.7, subdivision (a), because California is not out of line with other jurisdictions.

Moreover to the extent that California's sentence for the crime of sodomy on a child 10 years old and younger is more lengthy than the required sentences in some of the other states, we do not view this fact alone as indicating that Rojano's sentence is cruel or unusual punishment. "While California has taken what has been described as an `aggressive approach' reflecting a `zero tolerance toward the commission of sexual offenses against particularly vulnerable victims,' this fact alone `does not . . . render a defendant's sentence excessive as a matter of law. . . .'" (Reyes, supra, 246 Cal.App.4th at p. 89.)

Having reviewed all three prongs of the relevant test under the California Constitution, we conclude that a 25-year-to-life sentence is not "so disproportionate to" Rojano's crime that it "shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) This is not one of the exquisitely rare cases in which the California Constitution requires a reduction in punishment.

D. A Sentence of 25 Years to Life Is Not Grossly Disproportionate to Rojano's Crime Under the United States Constitution

The parties have not substantively briefed the issue of whether a sentence of 25 years to life in this case would constitute cruel and unusual punishment under the Eighth Amendment to the federal Constitution. However, because the trial court identified the federal Eighth Amendment as one of the bases for its ruling reducing Rojano's sentence, we briefly address the issue here.

As we have explained, the threshold inquiry in a federal constitutional analysis is extremely similar to the inquiry under the first prong of the analysis required by the California Constitution. Specifically, we "compar[e] the gravity of the offense and the severity of the sentence" to determine whether an inference of "`gross disproportionality'" arises. (Graham, supra, 560 U.S. at p. 60.) "This analysis can consider a particular offender's mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history." (Id. at p. 88, Roberts, C.J., concurring.)

For the same reasons we have set forth above with respect to the first-prong analysis under the California Constitution, we conclude that Rojano committed a grave and serious offense when he sodomized Jane Doe. Therefore, a sentence of 25 years to life is not grossly disproportionate to the crime and does not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

DISPOSITION

The sentence is reversed, and the matter is remanded with directions for the trial court to resentence Rojano consistent with the provisions of section 288.7, subdivision (a). In all other respects the judgment is affirmed. The trial court shall forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.

BENKE, Acting P. J. and NARES, J., concurs.

FootNotes


1. Unless otherwise indicated, all further statutory references are to the Penal Code.
2. We refer to Rojano's mother as "Mother" rather than by her name in order to protect Jane Doe's anonymity to the extent possible.
3. Section 288.7, subdivision (a) states: "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life."
4. We note that in its comments, the trial court was not accurate in representing the contents of the forensic psychological evaluation. Specifically, the trial court stated that the evaluation had concluded that Rojano had a "very low" rather than a "low" risk of recidivism, and represented that the evaluation found that Rojano "was not a pedophile," when in fact, the evaluation stated that it did not appear "clinically probable" that Rojano had a fundamentally pedophilic sexual orientation, but that it "would be advisable" to administer the AASI-3. To the extent that the trial court's factual findings mischaracterize the evaluation, the trial court's findings on those issues are not supported by substantial evidence, and we rely instead on the actual content of the evaluation in conducting our analysis.
5. In a similar argument, Rojano contends that the People forfeited their ability to challenge the trial court's ruling on the Eighth Amendment on appeal because they did not specifically cite the Eighth Amendment in the supplemental briefing requested by the trial court. For this argument, Rojano relies on case law establishing that a party forfeits the ability to raise a challenge to the trial court's discretionary sentencing decisions on appeal if the party fails to raise an objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott); People v. Gonzalez (2003) 31 Cal.4th 745, 752.) That case law is not applicable here. The issue is not whether the trial court should have exercised its discretion differently. Instead, the issue here is whether the sentence is constitutionally required to be reduced. The People clearly objected to any reduction in Rojano's sentence in the trial court, with the prosecutor plainly stating the People's position that a 25-year-to-life sentence was appropriate, and thus the issue has been preserved for appeal.
6. Delaware (Del. Code Ann. tit. 11, § 4205A(a) (2006)); Georgia (Ga. Code Ann. § 16-6-2(b)(2) (2016)); Kansas (Kan. Stat. Ann. § 21-6627(a)(1) (2016)); Michigan (Mich. Comp. Laws Ann. § 750.520b(2)(b) (2016)); New Jersey (N.J. Stat. Ann. § 2C:14-2(a) (2016)); Rhode Island (R.I. Gen. Laws Ann. § 11-37-8.2 (2016)); South Carolina (S.C. Code Ann. § 16-3-655(D)(1) (2016)); Texas (Tex. Penal Code Ann. § 22.021(f)(1) (2015)); Utah (Utah Code Ann. § 76-5-403.1 (2016)).
7. Alaska (Alaska Stat. Ann. § 12.55.125(i)(1)(A)(i) (2016)); Arkansas (Ark. Code Ann. § 5-14-103(c)(2) (2016)); Montana (Mont. Code Ann. § 45-5-625(4)(a) (2015)); Oregon (Or. Rev. Stat. Ann. § 137.700(2)(b)(E) (2016)); West Virginia (W. Va. Code Ann. § 61-8B-3(c) (2016)).
8. Nevada (Nev. Rev. Stat. Ann. § 200.366 (2016)).

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