Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050717538.
McGuiness, P. J.
Defendant Diego Alejandro Gonzalez appeals from a judgment entered after a jury convicted him of several felony offenses against Jane Doe I (Doe I) and Jane Doe II (Doe II). As to Doe I, Gonzalez was convicted of forcible oral copulation (Pen. Code, § 288a, former subd. (c)(2) [now subd. (c)(2)(A)]), first degree robbery (§§ 211, 212.5, subd. (a)), making a criminal threat (§ 422), and dissuading a witness from testifying (§ 136.1, subd. (a)(1)). As to Doe II, Gonzalez was convicted of forcible oral copulation (§ 288a, former subd. (c)(2) [now subd. (c)(2)(A)] (two counts), forcible rape (§ 261, subd. (a)(2)) (two counts), and first degree robbery (§§ 211, 212.5, subd. (a)). The jury also found Gonzalez (1) had personally used a deadly and dangerous weapon during the commission of each offense (§ 12022, subd. (b)(1)), and (2) had committed the sexual offenses while personally using a dangerous or deadly weapon and against more than one victim (§ 667.61, subd. (a), former subd. (e)(4), (5) [now subd. (e)(3), (4)]). Applying the One Strike law for commission of certain sex offenses against multiple victims (§ 667.61, former subd. (e)(5) [now subd. (e)(4)], the court sentenced Gonzalez to consecutive terms of 25 years to life on one count of forcible oral copulation (Doe I), and 25 years to life on one count of forcible oral copulation (Doe II). The court imposed terms of imprisonment on the remaining counts and sentence enhancements to run concurrently to the aggregate term of 50 years to life.
At the court’s direction, the victims were referred to by the pseudonyms Jane Doe I and Jane Doe II to protect their privacy.
All further unspecified statutory references are to the Penal Code. After Gonzalez’s conviction and sentence, section 288a, subdivision (c)(2), as charged in this case, was renumbered subdivision (c)(2)(A). (Stats. 2010, ch. 219 (Assem. Bill. No. 1844) §§ 1, 8, eff. Sept. 9, 2010 (now known as the Chelsea King Child Predator Prevention Act of 2010).)
After Gonzalez’s conviction and sentence, section 667.61 was amended, in pertinent part, as follows: the aggravating factor of the use of a dangerous or deadly weapon was renumbered as subdivision (e)(3) and the aggravating factor of multiple victims was renumbered as subdivision (e)(4). (Stats. 2010, ch. 219 (Assem. Bill. No. 1844) § 16, eff. Sept. 9, 2010.)
Gonzalez challenges the court’s instructions regarding first degree robbery and argues his life sentences constitute cruel and unusual punishment under the state and federal constitutions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The charges against Gonzalez arose from two separate incidents: On December 6, 2005, Gonzalez sexually assaulted and robbed Doe I in a hotel room in Walnut Creek; and on December 1, 2006, Gonzalez sexually assaulted and robbed Doe II in a hotel room in Concord. After a third victim reported an attempted forcible rape in a hotel room in Walnut Creek on December 15, 2006, Gonzalez was arrested and charged with felony offenses as against all three victims. Before trial, the court granted the prosecutor’s motion to dismiss the charges relating to the third victim. A jury trial was held in July 2008 regarding the charges concerning Doe I and Doe II.
A. Doe I Incident
Doe I, testifying pursuant to a subpoena, stated she was a prostitute from March 2004 to January 2008. She offered services ranging from massages to other sexual favors. She visited men at their homes and used hotels. She would pay for the hotel rooms. On December 6, 2005, Gonzalez contacted Doe I by using her Internet contact information. They arranged to meet at a hotel in Walnut Creek. Doe I booked a hotel room for her meeting with Gonzalez. When she was inside the room, Gonzalez called Doe I, and she told him the room number. Once in the hotel room, Doe I and Gonzalez discussed her services and his payments for the services. As Doe I went to the room door, Gonzalez grabbed her and put a knife to her throat. She never actually saw the knife, but felt it and it left a red scratch or a slight cut on her throat. Gonzalez said, “Shut up. Don’t scream. Don’t say anything.” He forced her to lay down on the bed face first while he still kept the knife at her throat. Doe I thought she was going to die. Gonzalez said, “Don’t move or I’m going to kill you. I’m going to cut you.” Gonzalez asked Doe I for her money. She told him her wallet was in the first drawer underneath the television. The wallet contained her personal cards, credit cards, about $500 in cash, and her driver’s license with her true name and address. Gonzalez told Doe I to get her wallet and give him $150. Gonzalez later asked Doe I if she remembered “the kid from last week who wasn’t happy with his services, this is for him.” While still being held by Gonzalez, Doe I got up and gave him $150 from her wallet.
Doe I had seen two men earlier that day, and each man gave her $250. She did not recall telling the police that a total of $300 was taken from her.
Gonzalez then forced Doe I back to the bed, and told her to take off her clothes. He still had a knife at her throat. He told Doe I to get on all fours on the bed. He then started licking Doe I on her body, including her vaginal area and anus for several minutes. Doe I did not do anything because Gonzalez told her he was going to hurt her if she fought him. After he finished, Gonzalez whispered in her ear in an aggressive manner: “This never happened. I didn’t hurt you. Don’t move. Don’t run. I’m going to get you. I know where you live. I know everything about you.” Gonzalez also told Doe I not to call the police. Gonzalez then grabbed Doe I’s wallet and cell telephone and he ran out the door. After Gonzalez left, Doe I called the hotel front desk and asked that security try to stop Gonzalez. Doe I then called the police. When the police arrived at her hotel room, Doe I said she had been sexually assaulted and robbed. She did not tell the police the truth about how Gonzalez came to be in the room because she knew her prostitution activity was illegal. Doe I checked out of the hotel that night.
After the December 5, 2006 incident, Doe I continued to advertise her services on the Internet to “make a living” and put herself through school until January 2008. In January 2008, she had been arrested for prostitution in Los Angeles. She had pleaded no contest to the prostitution charge and was given a two-year probationary term. At the time of the trial, Doe I had completed cosmetology school and she no longer advertised on the Internet. She was then being supported by her family.
B. Doe II Incident
Doe II, testifying pursuant to a subpoena, stated that since September 2005 she had been working as an escort and charged money for sex. She advertised on the Internet, and she accepted cash and gifts for her services.
On December 1, 2006, Gonzalez called Doe II on the cell telephone number she listed on the Internet. He said he had seen her before and she would remember him when they saw each other. They arranged to meet at a Concord hotel for a one hour session; she told him the price would be $300. Doe II already had a room at the hotel because she had a previous date that day and she had kept the key to the room. Her practice was that if she got a call, she would keep the hotel room key for the day in case she had to go back and use her room again.
Doe II arrived first at the hotel room and prepared to meet Gonzalez. She always prepared herself before her “calls.” She put on stockings, baby doll underwear, a bra and wrapped a towel around herself. While she was getting dressed, she drank a beer. Gonzalez came to the door, and she let him inside. Once inside, Doe II said she had never seen Gonzalez before that night. Gonzalez replied she did not remember him because he used to have long hair and he had cut it. Doe II insisted she did not remember Gonzalez’s face. When Gonzalez asked for a peek, Doe II told him he first had to put a “donation” or money on the table. Gonzalez insisted on a peek before giving her the donation. Doe II said she was not going to give him a peek. But, she lifted a towel, showing her panties, and said, “There, you could take a peek.... Now give me the donation.” Gonzalez put his hand in his pocket, indicating he had a donation for her. Doe II sat on the bed, and continued to tell Gonzalez to pay the donation. When she got up and turned slightly around with her back towards him, Gonzalez grabbed her “[l]ike a bear hug” from the back and showed her a knife before putting it to her throat. She could see the knife was all silver and shiny, and long; it was a “folding” or “buck” knife. It was “real scary” because the room lights were off and only the light from the television illuminated the room. Gonzalez said, “Don’t move. Shut up and don’t move. Don’t scream.” Doe II begged Gonzalez not to kill her because she had a little girl waiting for her. Gonzalez asked how he should know she was not lying. Doe II offered to show him a picture of her daughter. Doe II also offered to do anything he wanted her to do. She asked Gonzalez to put the knife away. He replied they were going to have some fun, and he would keep the knife next to him so that Doe II did not run out the door. The knife was kept in an open position either on the bed right next to them or on a nearby table where Gonzalez could just grab it. Doe II disrobed, Gonzalez pulled his pants down, and he allowed Doe II to put a condom on his penis. In response to his demands, she orally copulated him for five minutes. She felt she had no choice but to comply with Gonzalez’s requests because he was armed with a knife and she thought he was going to kill her if she did not cooperate with him. He then had forcible sexual intercourse with Doe II for about fifteen minutes. He then demanded that she orally copulate him without a condom for five minutes, and then he had forcible sexual intercourse with her wearing a condom for fifteen minutes. He ejaculated into the condom. He then got up, removed the condom, cleaned himself, and pulled his pants up. At this point Doe II did not see the knife.
Gonzalez asked Doe II for her telephone. He erased the calls with his telephone number that were on Doe II’s telephone. Even though she did not recall ever seeing Gonzalez before, he told her not to call the police, “or he will come back and [he would] get [her].” He said he knew where she lived, saying the name of the street where she lived, and that she lived in a one-bedroom apartment. Although she told Gonzalez she had no money, he demanded she open her purse. He took “a good amount of money” that she had in her purse. She did not recall how much money Gonzalez actually took, but it was more than $100; “maybe like 140 or 180, ” or “200.” After Gonzalez left the room, Doe II got dressed. She wrapped the used condom in toilet paper, put it in her purse, and left the hotel room.
While she was on her way to her home, not even two minutes from the motel, Doe II called 911. She told the police her home address, and said she was an escort and had just been raped in a hotel room. She met the police at her home. She gave the police the used condom and all of the clothing that she had been wearing that night. She admitted she was a prostitute but she was not taken into custody.
Concord Police Officer Michael Jaime interviewed Doe II at her apartment after the incident. During the interview, Doe II produced the used condom wrapped in toilet paper. The condom was given directly to CSI Officer Mary Ann Duncan.
At the time of the trial, Doe II was on probation for a DUI. She had previously violated her probation and gone to jail. When asked if she knew that being a prostitute was illegal, she admitted she knew but she had to feed her children.
Gonzalez did not testify and he presented no witnesses.
DISCUSSION
I. Trial Court’s Instructions Regarding Elements of First Degree Robbery
A. Relevant Facts
During a jury instruction conference, the court informed counsel that it would give the jury instructions on the elements of both first degree robbery (referred to as residential robbery) and the lesser included offense of second degree robbery. The court explained: “[A]t least based on the evidence that [the jurors] heard [it was] factually possible for the jurors to conclude that this was not a residential robbery, that [it] was something other than a residential robbery because [of] the transitory nature of the residenc[y] in the hotel room.” Defense counsel neither lodged an objection nor proffered any clarifying instructions to the court’s proposed instructions.
In its written instructions, the court advised the jurors: “Robbery is divided into two degrees. If you conclude that the defendant committed a robbery, you must then decide the degree. [¶] To prove that the defendant is guilty of first degree robbery, the People must prove that: [¶] The robbery was committed in an inhabited dwelling. A dwelling is inhabited if someone lives there and either is present or has left but intends to return. Under the law, an occupied hotel room for which room a fee has been paid is an inhabited dwelling. [¶] All other robberies are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the robbery was first degree rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree robbery. If, and only if, you find that the defendant is not guilty of first degree robbery, you must then go on to consider whether [the] defendant is guilty of second degree robbery. If the People have not met the burden of proving beyond a reasonable doubt that the defendant is guilty of second degree robbery, then you must also find the defendant not guilty of second degree robbery.” Defense counsel lodged no objections to the instructions.
At this point in the rendition of the instructions in open court, the judge included the following extemporaneous sentence: “If it’s not an inhabited dwelling, if you find it’s not inhabited, you will go on to consider whether or not you have second degree robbery which is all robberies as defined in the previous discussion.”
During closing argument, the prosecutor argued that with respect to Gonzalez’s robbery of Doe I, the only issue for the jury’s consideration was the distinction between first degree robbery and second degree robbery: “You heard the Judge instruct you that under the law an occupied hotel room for which a fee has been paid is an inhabited dwelling. [¶] I’ll submit to you that under these circumstances... she’s in there. It’s occupied. She paid a fee. [¶] I wasn’t under the impression that she was living there or staying there overnight. I will submit to you, if there is an issue, it’s a question of whether it’s a first degree or second degree robbery. That’s an issue for you to determine. [¶] If you decide it’s occupied, he’s guilty of a first degree. If you decide it’s something more transitory, he’s guilty of a second degree.” The prosecutor later argued: “So, again, with regard to the robbery, the only issue is whether it’s a first degree or second degree robbery. [¶]... [¶]... [I]f all twelve of you agree that I have not proven that it is an inhabited dwelling, all twelve of you have to agree to that though, then you could go to the lesser-included offense of second degree robbery. [¶]...It’s at least a second degree. If you find... it not inhabited, and it’s a second degree, I submit to you the fact that she had been there before, she had returned to that location, it was night time, she had her personal property stored in parts of the hotel room. It’s sufficient, but if you find that it [was] not inhabited, it’s certainly a second degree robbery.” In arguing the count of robbery as regarding Doe II, the prosecutor made no comments as to whether Gonzalez’s robbery of Doe II was a first degree or second degree robbery.
During closing argument, defense counsel made no specific comments regarding the elements of the offenses, or the prosecutor’s arguments regarding the difference between first degree robbery and second degree robbery. The entire premise of defense counsel’s argument was that the victims were not credible and the prosecution had failed to proffer any evidence corroborating the testimony of the victims.
B. Analysis
Gonzalez seeks reversal of his conviction for first degree robbery on the basis that the court’s jury instructions regarding the elements of first degree robbery directed the jury to find the victims’ hotel rooms were inhabited dwellings, and that such an error was not harmless. We conclude Gonzalez’s arguments are unavailing.
Gonzalez did not object at trial to the instruction on the ground he now raises on appeal. However, because he contends “the instruction is not ‘correct in law, ’ and that it violate[s] his right to due process of law[, ] the claim... is not of the type that must be preserved by objection.” (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; see, also, § 1259 [“The appellate court may...review any instruction given, ... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”].)
The challenged instruction – “[u]nder the law, an occupied hotel room for which room a fee has been paid is an inhabited dwelling” is derived from People v. Fleetwood (1985) 171 Cal.App.3d 982 (Fleetwood), which concerned former section 213.5, the predecessor to section 212.5. In Fleetwood, the court told the jury, “[o]n the robbery counts, ...‘[a]n inhabited dwelling house within the meaning of Penal Code section 213.5 is a structure which is occupied and customarily used as a dwelling. An occupied hotel room is an inhabited dwelling as used in these instructions.” (Id. at p. 986.) Fleetwood argued the court erred by stating in its jury instructions that “a hotel room is a dwelling house” because the robbery statute “should not apply to hotel rooms.” (Ibid.) The Fleetwood court rejected the argument, holding that “[h]istorically and traditionally, hotel rooms have been included within the definition of a dwelling house. [Citation.] We are convinced the Legislature intended the same result under section 213.5.” (Id. at p. 988; see CALCRIM (2011 ed.) Vol. I, foll. No. 1602, Related Issues, Hotel Room, p. 1211.)
“The Legislature originally created the residential robbery statute in repealed section 213.5, which provided that ‘[e]very robbery perpetrated in an inhabited dwelling house or trailer coach as defined in the Vehicle Code is punishable [as provided].’ (Former § 213.5, enacted Stats.1982, ch. 1293, § 2, p. 4783, repealed Stats.1986, ch. 1428, § 5, p. 5124.) The purpose of former section 213.5 was to remedy ‘inequitable’ differences in penalties for residential burglary and existing robbery offenses. (See Stats.1982, ch. 1293, § 4, p. 4783 [explaining need for immediate effect of statute].) In 1986, ... the Legislature repealed former section 213.5 and enacted its successor, present section 212.5. [(See Stats.1986, ch. 1428, § 6, p. 5124 [expressing intent that there has been and is but one crime of robbery defined in § 211, but certain forms of robbery are more aggravated and deserving of greater punishment].)] At the same time, the Legislature added to the prohibition against robbery in an ‘inhabited dwelling house’ the additional provision enhancing penalties for robbery committed in ‘the inhabited portion of any other building.’ By comparing this history and the language of the statutes to the burglary provisions of the Penal Code, it is clear that the Legislature intended to create an enhanced robbery offense equivalent to first degree burglary. (Compare § 212.5 with § 460 [providing that ‘burglary of an inhabited dwelling house, ... or the inhabited portion of any other building, is burglary of the first degree.’].)” (People v. Alvarado (1990) 224 Cal.App.3d 1165, 1167-1168, fn. omitted.)
Gonzalez argues, however, that the court erred because its instructions directed a verdict on the element of whether the victims’ hotel rooms were inhabited dwellings. We disagree. The instruction used in this case is very similar to instructions that have withstood arguments of directed verdicts on the same ground. (People v. Thorn (2009) 176 Cal.App.4th 255, 267-268 (Thorn); People v. Fox (1997) 58 Cal.App.4th 1041, 1047 (Fox).)
In Thorn, supra, 176 Cal.App.4th 255, the trial court instructed the jury that, “ ‘Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree. First degree burglary is the burglary of an inhabited dwelling house. A carport that is attached to an inhabited dwelling house is part of the inhabited dwelling house. A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. All other burglaries are second degree. The People have the burden of proving beyond a reasonable doubt that the burglary was first degree burglary. If the People have not met this burden, you must find the defendant not guilty of first degree burglary.’ ” (Id. at pp. 266-267.) In rejecting Thorn’s argument that the instruction impermissibly directed a verdict of guilty on the element of inhabitation for first degree burglary, we explained: “[T]he trial court’s instruction is very similar to the language of the burglary instruction approved in People v. Fox (1997) 58 Cal.App.4th 1041... (Fox). [¶] In Fox, the trial court... instructed the jury in pertinent part that ‘ “[w]here a garage is attached to an inhabited dwelling house and is, therefore, not a separate structure, it is considered to be a partof the inhabited structure.” (Italics added.)’ (Fox, supra, 58 Cal.App.4th at p. 1047.) On appeal, Fox argued that the trial court’s instruction ‘improperly usurped the jury’s function and directed a verdict as to the “inhabited dwelling” element of first degree burglary.’ (Ibid.) The appellate court rejected this contention. ‘Under these instructions, ’ the court reasoned, ‘the jury was still required to find that the “structure” entered by Fox was “inhabited.” In addition, the jury was required to determine whether the garage was “attached, ” and thus an integral part of the structure. Only after making these factual determinations could the jury find Fox guilty of first degree burglary. Had the jury determined the structure was not inhabited or the garage was not attached, it would have been obligated to find Fox committed second degree burglary. Accordingly, the trial court’s instruction did not preclude the jury from deciding a material issue of fact.’ (Ibid.) [¶] Similarly, the jury here was required to determine whether Thorn entered an inhabited dwelling house with the intent to commit theft before it could return a guilty verdict on first degree burglary.... Here, as in Fox, had the jury determined the apartment structure was not inhabited or the garage was not attached to it, it would have been obligated to return a not guilty verdict on the first degree burglary charge. Therefore, the trial court’s instruction did not direct a guilty verdict on two essential elements of first degree burglary as asserted by Thorn.” (Thorn, supra, 176 Cal.App.4th at pp. 267-268.)
We similarly conclude in this case that the court’s instructions required the jury to determine whether Gonzalez had committed a robbery in an inhabited dwelling before returning a guilty verdict of first degree robbery. The jury could not return a guilty verdict unless it found the victims’ hotel rooms were inhabited dwellings. Had the jury determined the victims’ hotel rooms were not inhabited, it would have been obligated to return a not guilty verdict on the first degree robbery charges. Unlike the cases cited by Gonzalez, the court here did not instruct the jury that the victims’ hotel rooms were inhabited dwellings. (Cf. People v. Flood (1998) 18 Cal.4th 470, 477-478, 482 (Flood) [court erred in failing to instruct the jury to determine whether officers fell within Penal Code definition of “peace officer, ” and instead, informed the jury that [named officers] were peace officers, thus removing this element of the crime from the jury’s consideration]; People v. Figueroa (1986) 41 Cal.3d 714, 723 [court erred in instructing the jury that promissory notes the defendant sold were “securities” within the meaning of the Corporate Securities Law].)
Relying on Flood, supra, 18 Cal.4th 470, the court in People v. Villalobos (2006) 145 Cal.App.4th 310 (Villalobos), apparently accepted the defendant’s argument, which was conceded by the Attorney General, that the trial court erred by directing a verdict as to the degree of robbery when it instructed the jury that a robbery which takes place in an inhabited dwelling is of the first degree, and that an occupied motel room is an inhabited dwelling house within the definition of first degree robbery. (Id. at p. 316 & fn. 4.) Because Flood is distinguishable, and does not support a finding of a directed verdict in this case, we reject Gonzalez’s arguments based on Villalobos.
Additionally, even assuming an instructional error, we would deem it harmless beyond a reasonable doubt. As recently explained in People v. Long (2010) 189 Cal.App.4th 826 (Long): “ ‘In keeping with the purpose of the statute, the term “ ‘inhabited dwelling house’ ” has been given a “broad, inclusive definition.” [Citation.]... [T]he “ ‘ “ ‘inhabited-uninhabited’ dichotomy turns... on the character of the use of the building.” ’ [Citation.]... ‘[T]he proper question is whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusion.’ [Citation.]” [Citation.]’ ” (Id. at pp. 834-835.) “[A] popular test for whether a building is ‘inhabited’ is whether someone is using it as a temporary living quarters; [or] whether the building is serving as the functional equivalent of a home away from home. This characterization should be made from the perspective of the victim [citation], not the criminal. [Citation.]” (Id. at p. 837.)
In this case, the evidence demonstrates that each victim used the hotel room as a home away from home to perform intimate sexual activities. The victims’ use of hotel rooms allowed them to “let their guard down, ” making them psychologically vulnerable to Gonzalez’s criminal conduct. (People v.Jackson (1992) 6 Cal.App.4th 1185, 1191.) “From the victim[s’] psychological standpoint[s], ” the robbery was no different than a robbery committed by some person inside the victims’ permanent residences; “[i]n either case, the victim[s] assume[d] an enhanced level of security and privacy which [was] violated by the crime[s].” (Ibid.) Gonzalez’s argument that the hotel rooms were used for nothing more than to transact the business of prostitution is not persuasive. The victims’ anticipation of receiving money from Gonzalez should not be “regarded as transforming [their] [h]otel room[s] into some kind of uninhabited office[s].” (Long, supra, 189 Cal.App.4th at p. 838 [rejecting contrary implication in Villalobos, supra, 145 Cal.App.4th at p. 321].) We therefore reject Gonzalez’s assertion that the challenged instruction constitutes prejudicial error requiring reversal.
II. Gonzalez’s Life Terms Are Neither Facially Unconstitutional nor Unconstitutional as Applied in this Case
Gonzalez acknowledges the court had no choice but to sentence him to two indeterminate 25 years to life terms pursuant to the One Strike law for the commission of violent sex offenses against different victims on different occasions. (§ 667.61, subds. (a), (e), & (i).) Nevertheless, he argues the court erred in imposing the required life terms, asserting the sentences violate the Eighth Amendment of the federal constitution and Article I, section 17 of the California Constitution. We reject Gonzalez’s arguments.
The Attorney General’s argument that Gonzalez forfeited his state constitution argument because he did not assert it at the time of sentencing is not well founded. As acknowledged by the Attorney General, Gonzalez did ask the court to consider People v. Dillon (1983) 34 Cal.3d 441 (Dillon), in which the California Supreme Court reversed a sentence based on the state constitutional prohibition against cruel or unusual punishment. (Id. at p. 489.) Also, the court ruled the life terms in this case were neither cruel nor unusual under either the Eighth Amendment “or the California constitutional provision.” Accordingly, we conclude Gonzalez’s state constitution argument is properly before us. (See, also, People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [appellate court considered cruel and unusual punishment challenge, even though forfeited, to forestall ineffective assistance of counsel claim].)
“Section 667.61 mandates indeterminate sentences of 15 to 25 years to life for specified sex offenses that are committed under one or more ‘aggravating circumstances, ’ such as when the perpetrator kidnaps the victim, commits the sex offense during a burglary, inflicts great bodily injury, uses a deadly weapon, sexually victimizes more than one person, ties or binds the victim, or administers a controlled substance to the victim. [Citation.] The purpose of the One Strike law is ‘to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction, ’ ‘where the nature or method of the sex offense “place[d] the victim in a position of elevated vulnerability.” [Citation.]’ [Citation.]” (People v. Alvarado (2001) 87 Cal.App.4th 178, 186 (Alvarado).)
“A punishment is excessive under 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.’ [Citation.] A punishment may violate article I, section 17 of the California Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] [¶] In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. [Citations.]” (Alvarado, supra, 87 Cal.App.4th at p. 199; see Lockyer v. Andrade (2003) 538 U.S. 63, 70-77; Ewing v. California (2003) 538 U.S. 11, 20-31; Harmelin v. Michigan (1991) 501 U.S. 957, 961-962 [plur. opn. of Scalia, J.], 996-997, 1001 [conc. opn. of Kennedy, J.]; In re Lynch (1972) 8 Cal.3d 410, 424, 425-427.) The burden of demonstrating such disproportionality, which occurs “with exquisite rarity in the case law, ” rests with the defendant. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)
We see no merit to Gonzalez’s argument that the One Strike law, as codified in section 667.61, is facially unconstitutional because “it does not recognize significant gradations of culpability depending on the severity of the current offense and it fails to take mitigating factors into consideration.” Punishment under the One Strike law “is precisely tailored to fit crimes bearing certain clearly defined characteristics” (People v. Estrada (1997) 57 Cal.App.4th 1270, 1280), and recognizes gradations of culpability by applying increased penalties based on specific aggravating circumstances. (See Alvarado, supra, 87 Cal.App.4th at p. 186.)
We also reject Gonzalez’s related argument that the One Strike law improperly allows a life sentence to be based on the dual factor of multiple victims (first by the mandatory imposition of two indeterminate 25-years- to-life terms, and then by mandatory consecutive sentences). (People v. Valdez (2011) 193 Cal.App.4th 1515, 1521-1524 (Valdez); People v. DeSimone (1998) 62 Cal.App.4th 693, 700-702 (DeSimone).) “ ‘[P]ersons convicted of sex crimes against multiple victims within the meaning of section 667.61, subdivision (e)([4]) “are among the most dangerous” from a legislative standpoint. ([Desimone, supra, ] 62 Cal.App.4th [at p.] 698.)’ ” (Valdez, supra, 193 Cal.App.4th at p. 1523.) “[I]n making multiple convictions for violent sex offenses punishable by multiple life sentences, the Legislature was expressing the view that multiple violent sex offenses deserve more severe punishment than a single violent sex offense because of the predatory nature of the perpetrator.” (People v. Murphy (1998) 65 Cal.App.4th 35, 41.) “ ‘The One Strike [law] therefore contemplates a separate life term for each victim attacked on each separate occasion.’ (People v. Wutzke (2002) 28 Cal.4th 923, 930-931.)” (Valdez, supra, 193 Cal.App.4th at pp. 1523-1524.)
We see no relevance to Gonzalez’s doubt that there are any states which would provide life sentences, with no room for the trial court to impose a lesser sentence, for the offenses in question. “The purpose of the One Strike law is ‘to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction, ’ ‘where the nature or method of the sex offense “place[d] the victim in a position of elevated vulnerability.” [Citation.]’ [Citation.]” (Alvarado, supra, 87 Cal.App.4th at p. 186.) Even if California’s sentencing scheme “is among the most extreme in the nation, ” such a determination “does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) “[A] sentence which is not otherwise cruel and unusual” does not become “so simply because it is ‘mandatory.’ ” (Harmelin v. Michigan, supra, 501 U.S. at p. 995 [first-time offender convicted of possessing 672 grams of cocaine sentenced to life in prison without the possibility of parole; held, sentence not so grossly disproportionate as to violate Eighth Amendment].)
Gonzalez’s contention that the imposition of life terms is unconstitutional as applied in this case is untenable. “To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant’s involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant’s acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. ([Dillon], supra, 34 Cal.3d at p. 479.) If the court concludes that the penalty imposed is ‘grossly disproportionate to the defendant’s individual culpability’ (ibid.), or, ... that the punishment ‘ “ ‘shocks the conscience and offends fundamental notions of human dignity’ ” ’ [citation], the court must invalidate the sentence as unconstitutional.” (People v. Hines (1997) 15 Cal.4th 997, 1078.)
In arguing the life terms are unconstitutional as applied to him, Gonzalez asks us to consider his lack of a prior criminal record, that both victims were actively engaged in prostitution and continued to ply their trade after the offenses occurred, and that neither victim was harmed. However, these factors do not render his sentence unconstitutional. While 26 and 27 years of age, Gonzalez, armed with knife, terrorized each woman, threatening to harm them if they did not comply with his demands, and sexually assaulted them. Despite his lack of a prior criminal record, his substantial sexual predatory behavior put the community at risk. We see no relevance either to Gonzalez’s reliance on the women’s occupations as paid escorts for sexual favors, or his argument that the victims suffered no physical harm. The Legislature has found the commission of violent sexual offenses is deserving of harsh punishment even in the absence of any physical injury to the victims. (See, e.g., § 263 [“[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape”].) Gonzalez apparently planned his attacks and selected victims who were not likely to report his predatory conduct and, if they did, they were not likely to be believed by the authorities. During his presentence interview, he displayed no degree of remorse.
The probation department officer reported: “Although [Gonzalez] claimed his alcohol consumption was limited and sporadic, jail records indicate he was twice booked into jail for public intoxication at the end of 2005.”
We are not persuaded by Gonzalez’s argument that his sentence was much higher than that of a defendant who commits a second degree murder in California and receives a sentence of 15 years to life in prison for the reasons stated in People v. Crooks (1997) 55 Cal.App.4th 797 (Crooks). In Crooks, supra, 55 Cal.App.4th 797, the defendant contended his punishment—37 years to life for a rape committed in the course of a burglary—was cruel or unusual because it exceeded the punishment for any type of unlawful killing short of first degree murder or for any type of sexual offense (including rape) not committed in the course of a first degree burglary. (Id. at p. 805.) The court disagreed, noting the Legislature “has chosen to make other offenses not involving homicide punishable by life imprisonment without possibility of parole, ” including aggravated kidnapping for ransom and attempted train wrecking, and “[s]uch sentences have been found not to constitute cruel or unusual punishment because the Legislature could reasonably decide that crimes which involve an inherent danger to the life of the victim are particularly heinous even if no death occurs.” (Id. at pp. 807-808.) In this case, the commission of oral copulations by means of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” (§ 288a, subd. (c)(2)(A)), “self-evidently entails a threat to the life of the victim[s].” (Crooks, supra, 55 Cal.App.4th at p. 808.) “A fortiori, if offenses such as aggravated kidnapping for ransom and attempted train wrecking, even absent death, may be punished by [life without parole] without offending California’s bar against cruel or unusual punishment, it cannot offend that constitutional provision to punish the combination of offenses defendant committed by a life sentence with the possibility of parole.” (Ibid.)
On this record, we conclude Gonzalez’s life terms do not violate either the federal or state constitutional prohibitions against cruel and/or unusual punishment.
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.