People v. Farias CA2/8 ( 2023 )

Filed 4/28/23 P. v. Farias CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314347
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA486911)
v.
MARTIN FARIAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Eleanor J. Hunter, Judge. Affirmed as
modified.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Martin Farias appeals from his judgment of conviction of
three counts of lewd act upon a child under the age of 14 (Pen.
Code,1 § 288, subd. (a)), and one count of oral copulation or sexual
penetration of a child 10 years old or younger (§ 288.7, subd (b)).
On appeal, Farias contends the trial court prejudicially erred in
admitting expert testimony and instructing the jury on Child
Sexual Abuse Accommodation Syndrome (CSAAS). Farias also
claims sentencing error on the grounds that he did not receive
adequate notice that he was subject to three 25-year-to-life terms
under the “One Strike” law (§ 667.61), his total sentence of
90 years to life constitutes cruel and unusual punishment, and
the abstract of judgment does not accurately reflect his
presentence custody credit. We modify the abstract of judgment
to correct Farias’s custody credit, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Evidence at Trial
Farias and his wife, Silvia M., have three children together,
including a daughter, V.F. Silvia also has an older daughter from
her previous relationship, A.R., who was raised in the same
household as her half-siblings. The offenses in this case concern
Farias’s sexual abuse of A.R. between 2002 and 2009, and his
sexual abuse of V.F. between 2011 and 2013.
A. Sexual Abuse of A.R.
A.R., born in 1995, is Farias’s stepdaughter. Farias
sexually molested A.R. for the first time when she was seven
years old. On that occasion, Farias called A.R. into his bedroom
1 Unless otherwise stated, all further statutory references
are to the Penal Code.
2
and had her lie down beside him. He placed A.R.’s hand on his
penis, first over and then under his clothing. He then made A.R.
rub his penis with her hand.
Farias sexually molested A.R. again when she was about 14
or 15 years old. Around that time, there were three to four
occasions when Farias kissed A.R. with his tongue and touched
her breasts over her clothing. When A.R. was 16 or 17 years old,
Farias called A.R. into his bedroom. He told her to lock the door
and to lie down on the bed. Farias then pulled down A.R.’s pants
and underwear, and orally copulated her. This incident was the
last time that Farias sexually abused his stepdaughter. A.R.
moved out of the family’s home when she was 17 years old.
B. Sexual Abuse of V.F.
V.F., born in 2006, is Farias’s biological daughter. Farias’s
sexual abuse of V.F. began when the child was five years old.
On that occasion, V.F. was sitting near her father on a couch in
the living room and told him that she was cold. Farias motioned
to V.F. to give him her hand. He then unbuttoned his pants, slid
V.F.’s hand under his clothing, and placed her hand on his penis.
V.F. began to feel that this contact was not appropriate and
removed her hand after a few minutes. She did not tell anyone
about the incident at that time because she was very young and
felt confused about her father’s behavior.
About a month later, Farias brought V.F. into his bedroom.
As they watched television together on the bed, Farias began to
caress V.F.’s arm, and asked her to lie down between his legs.
Once V.F. had done so, Farias told the child that she had hurt
him and asked her if she wanted to make him feel better. Farias
then instructed V.F. to rub his penis. V.F. briefly complied, but
stopped because she again felt uncomfortable and confused.
3
On another occasion when V.F. was five years old, Farias
invited the child to his bedroom. While lying on the bed, Farias
caressed V.F.’s body, including her arm, thighs, and chest.
He told the child to lie on her back, pulled off her pants and
underwear, and orally copulated her. Farias then pulled down
his shorts and tried to push V.F.’s mouth onto his penis. When
Farias forced V.F.’s lips to touch his penis, she backed away and
said she needed to use the restroom. V.F. hid inside the restroom
until other family members arrived home.
Following that incident, V.F. tried to avoid Farias and to
never be alone with him. On two other occasions, Farias asked
V.F. to go to his bedroom with him and then began to caress her
body. V.F. immediately moved away from Farias, and he
stopped. V.F. never spoke with her father about the sexual
abuse.
C. Disclosure of Sexual Abuse
A.R. first tried to disclose Farias’s sexual abuse to her
mother, Silvia, when she was 15 years old. After A.R. got drunk
at a party, Farias told A.R. to go to Silvia so that her mother
could smell her breath. As Silvia and A.R. fought about her
underage drinking, A.R. told Silvia that Farias had kissed her.
Because A.R. was intoxicated at the time, Silvia sent her to bed.
When Silvia talked to A.R. the following morning, A.R. disclosed
that Farias had kissed her on the mouth. Silvia then took A.R. to
Farias and confronted him about what A.R. had said. Farias
responded that A.R. was confused, and that he only would kiss
her on her cheek. He also gave A.R. a manipulative look, which
she understood to mean that Silvia would not believe her and she
would break the family apart by making this accusation. At that
4
point, A.R. told Silvia that what she had said was untrue, and
that she had made the statement solely because she was drunk.
In April 2020, when V.F. was 13 years old, she was on a
website, video chatting with a stranger. When Silvia saw V.F.,
she told her to get off the website and warned her about the
dangers of talking to strangers on the internet because there
were “so many predators out there.” In response, V.F. stated that
“bad people were not always on the outside, sometimes they were
inside the house.” When Silvia asked her what she meant by
that statement, V.F. disclosed that Farias had sexually abused
her starting when she was about five years old. Silvia hugged
V.F. and assured her daughter that she believed her.
Silvia immediately reported the sexual abuse to her sister,
who in turn reached out to A.R. After A.R. arrived at the family’s
home, she spoke with Silvia and learned of V.F.’s disclosure about
Farias. At that time, A.R. told her mother that the same thing
had happened to her. A.R. then met privately with V.F. in her
bedroom. V.F. repeated the disclosure to A.R., and A.R. revealed
to V.F. that she also had been sexually abused by Farias. The
family then contacted the police.
D. CSAAS Evidence
Dr. Jayme Jones, a clinical psychologist, testified for the
prosecution as an expert witness on CSAAS. As described by
Dr. Jones, CSAAS is a model to help explain the behavior of
sexually abused children whose disclosure patterns tend not to
follow the common expectation that children will disclose abuse
immediately. There are five components of the CSAAS model:
(1) secrecy; (2) helplessness; (3) accommodation; (4) delayed
disclosure; and (5) recantation.
5
Dr. Jones testified that secrecy and helplessness describe
the context in which child sexual abuse occurs. Because the
abuse typically takes place outside the presence of witnesses, it
signals to children they are not supposed to disclose what has
happened. Moreover, because children are physically smaller
than their abusers and taught to obey adults, they feel helpless to
fight back against the abuse. Accommodation describes how
children develop coping mechanisms, such as not thinking about
the abuse, that allow them to continue with their daily lives.
Dr. Jones further testified that most victims of child sexual
abuse never disclose the abuse, and when they make a disclosure,
it is often years after the abuse occurred. About 10 to 15 percent
of victims disclose the abuse within the first year of its
occurrence, and another 20 to 25 percent of victims disclose the
abuse within the next five years. The younger the child is when
first abused tends to correlate with a longer delay in disclosure.
Additionally, the longer the abuse lasts, the less likely it is to be
disclosed. When victims disclose abuse, they often do so in small
parts, and depending upon how their disclosure is received, they
may report more information or stop altogether. Children who
disclose abuse also may recant for a variety of reasons. Children
are more likely to recant if they do not feel supported, or if the
court or child welfare agency becomes involved in the matter.
Dr. Jones acknowledged that CSAAS is not a diagnosis, but
rather a model developed to assist therapists and families in
understanding why children may delay in disclosing sexual
abuse. The model only applies to children who have actually
been abused, and it is not used to determine whether abuse has
occurred. Dr. Jones had never met A.R. or V.F., and did not know
any of the facts of this case. She was not asked to offer an
6
opinion about these alleged victims, but rather to testify about
the disclosure patterns of sexually abused children in general.
II. Jury Verdict and Sentencing
The jury found Farias guilty of three counts of lewd act
upon a child under the age of 14 (§ 288, subd. (a)), and one count
of oral copulation or sexual penetration of a child 10 years old or
younger (§ 288.7, subd (b)). The jury also found true the three
enhancement allegations that Farias committed the offense of
lewd act upon a child against more than one victim who was
under the age of 14 (§ 667.61).
The trial court sentenced Farias to a total term of 90 years
to life in state prison, consisting of 25 years to life on each count
for lewd act upon a child under the age of 14, and 15 years to life
on the count for oral copulation or sexual penetration of a child
10 years old or younger. Farias was awarded 532 days of
presentence custody credit.
Farias timely appealed.
DISCUSSION
I. Admission of CSAAS Evidence
Farias first argues that his judgment of conviction must be
reversed because the trial court erroneously admitted CSAAS
evidence in violation of his constitutional right to due process and
a fair trial. Farias further asserts that, to the extent he forfeited
this claim by failing to timely object to the evidence at trial, he
received ineffective assistance of counsel. We conclude the
CSAAS evidence was properly admitted, and thus, Farias’s
ineffective assistance of counsel claim fails.
A. Governing Law
An expert may give opinion testimony “[r]elated to a
subject that is sufficiently beyond common experience that the
7
opinion of an expert would assist the trier of fact.” (Evid. Code,
§ 801, subd. (a).) “The trial court has broad discretion in deciding
whether to admit or exclude expert testimony [citation], and its
decision as to whether expert testimony meets the standard for
admissibility is subject to review for abuse of discretion.” (People
v. McDowell (2012) 54 Cal.4th 395, 426.)
It has long been held that expert testimony on CSAAS is
admissible for the limited purpose of disabusing the jury of
common misconceptions about how child victims may react to
sexual abuse. (See People v. McAlpin (1991) 53 Cal.3d 1289,
1300–1301; People v. Lapenias (2021) 67 Cal.App.5th 162, 171;
People v. Munch (2020) 52 Cal.App.5th 464, 468; People v. Perez
(2010) 182 Cal.App.4th 231, 245; People v. Patino (1994)
26 Cal.App.4th 1737, 1744–1746; People v. Bowker (1988)
203 Cal.App.3d 385, 394–395.) As the California Supreme Court
explained over 30 years ago, CSAAS evidence is “not admissible
to prove that the complaining witness has in fact been sexually
abused; [however,] it is admissible to rehabilitate such witness’s
credibility when the defendant suggests that the child’s conduct
after the incident—e.g., a delay in reporting—is inconsistent with
his or her testimony claiming molestation. [Citations.] ‘Such
expert testimony is needed to disabuse jurors of commonly held
misconceptions about child sexual abuse, and to explain the
emotional antecedents of abused children’s seemingly self-
impeaching behavior.’ ” (McAlpin, at pp. 1300–1301, fn. omitted.)
To be admissible, CSAAS testimony “must be targeted to a
specific ‘myth’ or ‘misconception’ suggested by the evidence.”
(People v. Bowker, supra, 203 Cal.App.3d at pp. 393–394.)
However, identifying the relevant myth or misconception does not
require “the prosecution to expressly state on the record the
8
evidence which is inconsistent with the finding of molestation.
It is sufficient if the victim’s credibility is placed in issue due to
the paradoxical behavior, including a delay in reporting a
molestation.” (People v. Patino, supra, 26 Cal.App.4th at
pp. 1744–1745.) The prosecution may offer CSAAS testimony in
its case-in-chief whenever the testimony of the victim may raise
an “obvious question . . . in the minds of the jurors” as to the
victim’s credibility, such as “why the molestation was not
immediately reported if it had really occurred.” (Id. at p. 1745.)
B. The Trial Court Did Not Abuse Its Discretion in
Admitting the CSAAS Evidence
Farias challenges the admission of Dr. Jones’s CSAAS
testimony on several grounds. He contends that the evidence
was irrelevant because CSAAS did not apply to the facts of this
case and there are no longer misconceptions about child sexual
abuse to correct. He further argues that Dr. Jones’s specific
testimony regarding the statistical data on delayed disclosure
was improper and invaded the role of the jury. In addition, he
asserts that the CSAAS evidence should have been excluded in
its entirety because it does not satisfy the requirements for the
admissibility of new scientific evidence. Finally, he claims that
admission of the testimony violated his due process rights. We
conclude that none of these arguments has merit.
In this case, the CSAAS evidence was relevant because
both complaining witnesses, V.F. and A.R., delayed in disclosing
the sexual abuse for a number of years, and A.R. also recanted
shortly after her first attempted disclosure. The evidence at trial
showed that Farias began abusing V.F. when she was about five
years old, and A.R. when she was about seven years old. V.F. did
not disclose the abuse to her mother until she was 13 years old.
9
A.R. first tried to disclose the abuse to her mother when she was
15 years old, but she only reported that Farias had kissed her
and then recanted the following day. It was not until 10 years
later when she was informed of V.F.’s disclosure that A.R. shared
with the family that Farias had also sexually abused her. The
CSAAS evidence was thus admissible to help explain why a
sexually abused child might not disclose the abuse for many
years. It also was admissible to help explain why a child who
eventually discloses sexual abuse might only reveal small
portions of information at a time, or recant if the child does not
feel supported in making the disclosure.
The CSAAS testimony in this case was also properly
limited in scope. Prior to the introduction of the evidence, the
trial court instructed the jury that Dr. Jones’s testimony was not
evidence that Farias committed any of the crimes charged
against him. During the testimony, Dr. Jones explained that she
had never met or evaluated either V.F. or A.R., and did not know
any of the facts of this case. Dr. Jones never offered an opinion,
nor was she asked to offer an opinion, as to whether the evidence
in this case was consistent with CSAAS. Rather, her testimony
was confined to dispelling commonly held misconceptions about
how a child may react to sexual abuse.
In support of his argument that the public no longer holds
the misconceptions that CSAAS testimony is intended to address,
Farias cites to cases from some out-of-state courts concerning the
admissibility of such evidence. He also claims that “[h]undreds of
episodes of Law and Order SVU, which deals with victims of sex
offenses[,] have made these crimes and the reactions of children
to those crimes well known.” Suffice it to say, we are not
persuaded. As one appellate court recently explained in rejecting
10
a similar argument, “CSAAS evidence has been admitted by the
courts of this state since the 1991 McAlpin decision. . . . [¶] That
Supreme Court decision is binding on all lower courts in this
state. [Citation.] That other jurisdictions may disagree with it
does not change its impact on California cases.” (People v.
Munch, supra, 52 Cal.App.5th at p. 468; see People v. Lapenias,
supra, 67 Cal.App.5th at p. 172 [rejecting claim that CSAAS
testimony is no longer necessary because the public no longer
harbors misconceptions about child sexual abuse].) We
accordingly adhere to Supreme Court precedent on the
admissibility of CSAAS evidence in cases such as this one.
Farias also argues that, even if CSAAS evidence may be
admissible for a limited purpose, Dr. Jones’s testimony on the
statistics of delayed disclosure was improper because it invaded
the jury’s role as the sole arbiter of credibility. In support of this
argument, Farias cites to two California cases in which the Court
of Appeal concluded that a CSAAS expert’s testimony about the
statistical data on false allegations was inadmissible. (See People
v. Julian (2019) 34 Cal.App.5th 878, 885 [expert testified that
rate of false allegations ranged from one to eight percent]; People
v. Wilson (2019) 33 Cal.App.5th 559, 568 [expert testified that
false allegations were found in one to six percent of cases].) In
both cases, however, the expert’s testimony about the infrequent
rate of false allegations invaded the province of the jury because
it had the effect of vouching for the veracity of the alleged
victims. As one court explained, the expert effectively told jury
that “there was at least a 94 percent chance that any given child
who claimed to have been sexually abused was telling the truth.
And, although [the] testimony on this point was not expressly
directed to either [victim], the practical result was to suggest to
11
the jury that there was an overwhelming likelihood their
testimony was truthful.” (Wilson, at p. 570.)
In contrast, the CSAAS expert in this case did not provide
any testimony about the percentage of children who falsely allege
sexual abuse, or whether such occurrences were rare. Rather,
Dr. Jones testified that, among the population of children who
have been victims of sexual abuse, about 10 to 15 percent disclose
the abuse within the first year of its occurrence, and another 20
to 25 percent disclose the abuse within the next five years.
Dr. Jones also made clear that the CSAAS model “only applies to
children who have been abused,” and thus, if there is “a false
accusation, the model doesn’t fit.” In fact, when defense counsel
specifically inquired about the incidence of false allegations on
cross-examination, Dr. Jones explained that there was not
reliable data on the subject, and declined to opine on the
likelihood that an allegation of sexual abuse would be false.
Dr. Jones’s testimony on the statistical data concerning delayed
disclosure was well within the scope of admissible CSAAS
evidence.
Farias further contends that the CSAAS evidence should
have been excluded because it does not satisfy the requirements
of People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States
(D.C. Cir. 1923) 293 F. 1013. The Kelly rule, formerly known as
the Kelly/Frye rule, governs the admissibility of evidence based
on a new scientific method, which requires a showing that the
method is generally accepted as reliable within the relevant
scientific community. (People v. Lapenias, supra, 67 Cal.App.5th
at p. 173.) California courts repeatedly have concluded, however,
that the Kelly rule does not apply to CSAAS evidence. (See ibid.;
People v. Munch, supra, 52 Cal.App.5th at pp. 472–473; People v.
12
Harlan (1990) 222 Cal.App.3d 439, 449; People v. Gray (1986)
187 Cal.App.3d 213, 218–219.) This is because “CSAAS
testimony does not purport to provide a definitive truth; rather,
the expert testimony attempts to disabuse jurors of
misconceptions they might hold about the conduct of children
who have been sexually abused. In short, expert CSAAS
testimony is not ‘ “ ‘scientific’ ” evidence’ subject to the Kelly rule.”
(Lapenias, at p. 173.)
We also reject Farias’s claim that the admission of the
CSAAS testimony deprived him of due process and a fair trial.
“[R]eviewing courts have routinely held the admission of CSAAS
evidence does not violate due process.” (People v. Lapenias,
supra, 67 Cal.App.5th at p. 174; see People v. Patino, supra,
26 Cal.App.4th at p. 1747 [“introduction of CSAAS testimony
does not by itself deny [a defendant] due process”].) Here,
Dr. Jones’s testimony was relevant to the issues presented at
trial and was limited in scope. Because the trial court properly
admitted the CSAAS evidence, Farias’s counsel was not
ineffective in failing to object to it.2
2 “ ‘ “ ‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome.’ ” ’ ” (People v. Johnson
(2016) 62 Cal.4th 600, 653.) Where, as here, an objection to the
evidence would have been properly overruled, defense counsel’s
failure to make such objection does not fall below an objective
13
II. Jury Instruction on CSAAS Evidence
Farias next contends that his judgment of conviction must
be reversed because the trial court erred in instructing the jury
with CALCRIM No. 1193, the pattern jury instruction on CSAAS
evidence. He specifically claims that the instruction lessens the
prosecution’s burden of proof because it permits the jury to use
CSAAS evidence as corroboration for the victim’s allegation of
abuse. We conclude this claim likewise lacks merit.
A. Standard of Review
A claim of instructional error is subject to de novo review.
(People v. Scully (2021) 11 Cal.5th 542, 592.) An appellate court
independently reviews the wording of a challenged instruction
and assesses whether the instruction accurately states the law.
(People v. Mitchell (2019) 7 Cal.5th 561, 579.) “When a defendant
claims an instruction was subject to erroneous interpretation by
the jury, he must demonstrate a reasonable likelihood that the
jury misconstrued or misapplied the instruction in the manner
asserted.” (People v. Covarrubias (2016) 1 Cal.5th 838, 926.)
A single instruction may not be judged in isolation, but must be
considered in the context of the instructions as a whole and the
trial record. (People v. Lemcke (2021) 11 Cal.5th 644, 655.)
standard of reasonableness. (See People v. Peterson (2020)
10 Cal.5th 409, 465 [counsel’s performance was not deficient for
failing to object where “any such objection would have been
meritless and properly overruled”]; People v. Bell (2019) 7 Cal.5th
70, 127 [counsel was not ineffective for “failing to raise a futile
objection”].) Farias’s ineffective assistance of counsel claim
therefore also fails.
14
B. The Trial Court Did Not Err in Instructing the
Jury with CALCRIM No. 1193
CALCRIM No. 1193, as given in this case, instructed the
jury: “You have heard testimony from Dr. Jayme Jones
regarding child sexual abuse accommodation syndrome. [¶]
Dr. Jones’s testimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of
the crimes charged against him or any conduct or crimes with
which he was not charged. [¶] You may consider this evidence
only in deciding whether or not [V.F.] and [A.R.’s] conduct was
not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of their testimony.”
Contrary to Farias’s contention on appeal, CALCRIM
No. 1193 does not misstate the law or lessen the prosecution’s
burden of proof. The instruction explicitly states that CSAAS
testimony is not evidence that the defendant committed the
charged crimes. It further sets forth the only permissible uses for
such evidence, which are to evaluate the credibility of the alleged
victim and to determine whether his or her conduct was
consistent with that of a sexually abused child. Appellate courts
thus have rejected similar challenges to CALCRIM No. 1193, and
concluded that the language of the instruction accurately
describes the proper use, and limitations on the use, of CSAAS
testimony. (See People v. Lapenias, supra, 67 Cal.App.5th at
pp. 175–176; People v. Munch, supra, 52 Cal.App.5th at pp. 473–
474; People v. Gonzales (2017) 16 Cal.App.5th 494, 503–504.)
We agree with the reasoning in those cases. Because there is no
reasonable likelihood that the jury misconstrued or misapplied
the instruction in the manner asserted by Farias, the trial court
15
did not err in instructing the jury on the use of CSAAS evidence
with CALCRIM No. 1193.
III. Adequate Notice of One Strike Sentence
Farias argues that his sentence of 25 years to life on each
count for lewd act upon a child under the age of 14 violated his
due process rights because he did not receive sufficient notice
that he would be sentenced under the One Strike Law pursuant
to section 667.61, subdivision (j)(2). In particular, he asserts that
the information failed to expressly plead that he was subject to a
25-year-to-life enhancement under section 667.61, subdivision
(j)(2), for committing the offense against more than one victim
who was under the age of 14. We conclude Farias received
constitutionally adequate notice of his One Strike sentence
under the circumstances of this case.
A. Governing Law
Section 667.61, known as the One Strike Law, creates an
alternate, harsher sentencing scheme for certain enumerated sex
offenses committed under specified circumstances. (People
v. Mancebo (2002) 27 Cal.4th 735, 738.) Subdivision (c) of the
statute identifies the qualifying offenses, which include lewd or
lascivious conduct in violation of section 288, subdivision (a).
(§ 667.61, subd. (c)(8).) Subdivision (e) specifies the qualifying
aggravating circumstances, including where a defendant has
been convicted of committing the offense against more than
one victim. (Id., subd. (e)(4).)
As relevant here, subdivision (a) of the statute provides
that, subject to the exception set forth in subdivision (j), a person
convicted of a qualifying offense “under two or more of the
circumstances specified in subdivision (e) shall be punished by
imprisonment in the state prison for 25 years to life.” (§ 667.61,
16
subd. (a).) Subdivision (b) mandates that, except as provided in
subdivision (a) or (j), a person convicted of a qualifying offense
“under one of the circumstances specified in subdivision (e) shall
be punished by imprisonment in the state prison for 15 years to
life.” (Id., subd. (b).) Subdivision (j) sets forth an exception to the
requirement that there must be two or more aggravating
circumstances under subdivision (e) for a defendant to be subject
to the longer 25-year-to-life term mandated by subdivision (a).
(Id., subd. (j)(2).) Specifically, section 667.61, subdivision (j)(2)
provides that “[a] person who is convicted of an offense specified
in subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of
age, shall be punished by imprisonment in the state prison for
25 years to life.” (Ibid.)
B. Farias Received Adequate Notice That He Was
Subject to the 25-Year-to-Life Enhancement
In this case, Farias was convicted of three counts of lewd
act upon a child under the age of 14 in violation of section 288,
subdivision (a). Two of the counts were for the offenses against
V.F., and one count was for the offense against A.R. As to each
count, the jury also found true the section 667.61 enhancement
allegation that the offense was committed against more than one
victim and against a child who was under the age of 14.
Therefore, as to each of these three counts, Farias was subject to
a term of 25 years to life pursuant to section 667.61,
subdivision (j)(2).
The question of whether an accusatory pleading must
expressly allege section 667.61, subdivision (j)(2), to provide a
defendant with adequate notice of a qualifying 25-year-to-life
enhancement is currently pending before our Supreme Court.
17
(See People v. Zaldana (2019) 43 Cal.App.5th 527, review granted
Mar. 18, 2020, S259731 (Zaldana); In re Vaquera (2019)
39 Cal.App.5th 233, review granted Nov. 26, 2019, S258376
(Vaquera).) In Zaldana, this court held the defendant had
adequate notice that he was subject to a 25-year-to-life term
under section 667.61, subdivision (j)(2), even though that
subdivision was not expressly pleaded. (Zaldana, at p. 535.)
Instead, the information alleged that, “ ‘within the meaning of
Penal Code section 667.61(b),’ ” the defendant “ ‘committed an
offense specified in Section 667.61(c) against more than one
victim.’ ” (Ibid.) We concluded that this was sufficient to put the
defendant on notice that he could be sentenced to section 667.61’s
longer term because the information specifically referenced
subdivision (b), which “itself refers to subdivision (j), identifying
it as an exception to the shorter 15-year-to-life term.” (Zaldana,
at p. 535.) Further, “[b]ecause the information alleged both
[victims] were under the age of 14 when [defendant] molested
them, there was no doubt he was on notice that he could be
subject to subdivision (j)(2).” (Ibid.; accord, Vaquera, at p. 235
[“facts alleged in the information, as well as the 25-year-to-life
exception under section 667.61, subdivision (j)—which is
specifically mentioned within section 667.61, subdivision (b)—
gave [defendant] fair notice that he was subject to a sentence of
25 years to life”]; but see People v. Jimenez (2019) 35 Cal.App.5th
373, 397 [where information only informed defendant he could be
sentenced to enhancement under section 667.61, subdivisions (b)
and (e), he did not have adequate notice of 25-year-to-life
sentence under subdivision (j)(2)].)
Pending further guidance from the Supreme Court, we
continue to follow Zaldana, supra, 43 Cal.App.5th 527. Here, the
18
information charged Farias in counts 1, 2, and 4 with committing
a lewd act upon a child under the age of 14 in violation of section
288, subdivision (a). The information further alleged that, as to
these counts, “within the meaning of Penal Code section
667.61(a) and (d),” Farias “committed one of the specified offenses
pursuant to [section] 667.61(c) with a child under 14 and with
more than one victim.” The face page of the information also
stated that each count included an allegation under “PC
667.61(a)/(d),” and that the effect of such allegation was a “25 to
Life State Prison” term.
Accordingly, while the information did not expressly
reference section 667.61, subdivision (j)(2), it did allege that
Farias committed a violation of section 288, subdivision (a)
against two victims, both of whom were under the age of 14 at the
time of the offense. In alleging the sentence enhancement that
Farias committed these offenses against more than one victim
and against a child under age 14, the information also specifically
referenced section 667.61, subdivision (a), which itself provides
for a 25-year-to-life term where there are two or more
aggravating circumstances proven, except as provided in
subdivision (j). The information further made clear that each
count included a section 667.61 enhancement allegation that
could subject Farias to a term of 25 years to life in state prison.
Additionally, in proceedings held shortly before trial, the trial
court repeatedly informed Farias that he was facing a maximum
sentence of 115 years to life if convicted on all counts, including
the enhancement allegations. Farias stated that he understood
and wanted to go forward with the trial. On this record, Farias
received adequate notice that he was subject to three 25-year-
to-life terms pursuant to section 667.61, subdivision (j)(2).
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IV. Claim of Cruel and Unusual Punishment
Farias contends that his aggregate sentence of 90 years to
life violates the federal and state constitutional bans on cruel and
unusual punishment because it is tantamount to a sentence of
life without the possibility of parole. Because Farias did not
assert this objection in the trial court, he has forfeited the claim
on appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 886
[defendant forfeited Eighth Amendment claim “by failing to
articulate an objection on federal constitutional grounds” below];
People v. Speight (2014) 227 Cal.App.4th 1229, 1247 [“defendant’s
failure to contemporaneously object that his sentence constitutes
cruel and unusual punishment forfeits the claim on appellate
review”].) Even if not forfeited, however, the claim fails.
A. Governing Law
A sentence violates the federal Constitution only if it is
grossly disproportionate to the severity of the crime. (Graham v.
Florida (2010) 560 U.S. 48, 60; Ewing v. California (2003)
538 U.S. 11, 23.) The Eighth Amendment “ ‘does not require
strict proportionality between crime and sentence.’ ” (Graham, at
p. 60.) Hence, “ ‘outside the context of capital punishment,
successful challenges to the proportionality of particular
sentences have been exceedingly rare.’ ” (Ewing, at p. 21.)
A sentence violates 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.” (In re Lynch (1972) 8 Cal.3d 410, 424.) To determine
whether a sentence is cruel or unusual as applied to a particular
defendant, a reviewing court generally “ ‘must examine the
circumstances of the offense, including motive, the extent of the
defendant’s involvement in the crime, the manner in which the
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crime was committed, and the consequences of the defendant’s
acts. The court must also consider the personal characteristics of
the defendant, including his or her age, prior criminality, and
mental capabilities.’ ” (People v. Gonzales (2012) 54 Cal.4th 1234,
1300.) Successful challenges to a sentence as cruel or unusual
punishment under California law also “are extremely rare.”
(People v. Perez (2013) 214 Cal.App.4th 49, 60.) “ ‘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.’ ” (People v. Gomez
(2018) 30 Cal.App.5th 493, 499.)
B. Farias’s Sentence Is Not Constitutionally Cruel
or Unusual
Farias challenges the constitutionality of his sentence on
the grounds that it serves no rational legislative purpose because
a sentence of 90 years to life cannot possibly be served within his
lifetime, and thus amounts to life in prison without the
possibility of parole. Numerous courts have concluded, however,
that the fact that a sentence exceeds a defendant’s life expectancy
does not necessarily render it constitutionally cruel or unusual.
(See, e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382–1383
[upholding sentence of 115 years plus 444 years to life despite
defendant’s inability to serve sentence during his lifetime]; People
v. Cartwright (1995) 39 Cal.App.4th 1123, 1135–1136 [upholding
sentence of 375 years to life plus 53 years for series of violent
sexual assaults]; People v. Wallace (1993) 14 Cal.App.4th 651,
666–667 [upholding sentence of 283 years and 8 months for 46
sex offenses against seven victims]; People v. Bestelmeyer (1985)
166 Cal.App.3d 520, 531–532 [upholding sentence of 129 years
for 25 sex crimes against one victim].) As the court in Byrd
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explained: “[I]t is immaterial that defendant cannot serve his
sentence during his lifetime. In practical effect, he is in no
different position than a defendant who has received a sentence
of life without possibility of parole: he will be in prison all his
life. However, imposition of a sentence of life without possibility
of parole in an appropriate case does not constitute cruel or
unusual punishment under either our state Constitution
[citation] or the federal Constitution.” (Byrd, at p. 1383.)
Although Farias’s sentence may be severe, comparing it
with the gravity of his offenses does not give rise to an inference
of gross disproportionality. Farias committed multiple sexual
offenses against his daughter and his stepdaughter. He began
sexually abusing V.F. when she was five years old and A.R. when
she was seven years old. The abuse continued over a
considerable length of time. At Farias’s sentencing, the trial
court heard statements from both victims about the trauma that
they suffered as a result of their father’s sexual abuse.
Moreover, Farias’s sentence on three of the four counts was
imposed under the One Strike Law, which as discussed,
mandates an indeterminate life sentence where the defendant
committed a sexual offense against more than one victim and
against a child under the age of 14. (§ 667.61, subd. (j)(2).)
The mandatory nature of the One Strike Law “reflects the
Legislature’s zero tolerance toward the commission of sexual
offenses against particularly vulnerable victims.” (People v.
Alvarado (2001) 87 Cal.App.4th 178, 200–201.) “It is well within
the prerogative of the Legislature to determine that sex offenses
against young children are deserving of longer sentences than sex
offenses against adults or nonsex offenses.” (People v. Gomez,
supra, 30 Cal.App.5th at p. 502; see People v. Baker (2018)
22
20 Cal.App.5th 711, 729 [“ ‘great deference is ordinarily paid to
legislation designed to protect children, who all too frequently are
helpless victims of sexual offenses’ ”].) Given the severity of his
offenses, Farias has not shown that his sentence is so harsh as to
shock the conscience or to offend fundamental notions of human
dignity. He has therefore failed to demonstrate that his
punishment is constitutionally cruel or unusual.
V. Presentence Custody Credit
Lastly, Farias contends, and the People concede, that the
judgment must be modified to accurately reflect Farias’s
presentence custody credit. At sentencing, Farias was awarded
532 days of presentence custody credit, consisting of 463 days of
actual custody credit and 69 days of conduct credit. However,
because Farias spent 464 days in custody prior to sentencing, he
is entitled to one additional day of actual custody credit for a total
presentence custody credit of 533 days. The abstract of judgment
must be modified accordingly.
DISPOSITION
The judgment is modified to award Farias a total of
533 days of presentence custody credit, consisting of 464 days of
actual custody credit and 69 days of conduct credit. As modified,
the judgment is affirmed. The superior court is directed to
prepare an amended abstract of judgment, and to forward a
certified copy to the Department of Corrections.
VIRAMONTES, J.
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We concur:
STRATTON, P. J.
GRIMES, J.
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