People v. DeLeon CA1/2 ( 2023 )

Filed 7/28/23 P. v. DeLeon CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A166290
v.
JORGE NICOLLA DELEON, (San Francisco County
Super. Ct. No. SCN229759)
Defendant and Appellant.
This is defendant Jorge Nicolla DeLeon’s second appeal following his
conviction for three sexual offenses against his three step-granddaughters,
aged five, six, and 10. A jury convicted DeLeon for continuous sexual abuse
of two of the children (Pen. Code, § 288.5 [counts 1 and 4]) and committing a
lewd and lascivious act on the third.1 The jury also found true multiple
victim enhancements. The court sentenced DeLeon to two consecutive terms
of 25 years to life in prison.
On appeal, DeLeon raised a number of errors, including that his
sentence constituted cruel and unusual punishment. (People v. DeLeon
(Nov. 21, 2021, A159154) [nonpub. opn.] 2021 WL 5446280 (DeLeon I).) We
affirmed DeLeon’s convictions but remanded the matter because “the trial
court erred in sentencing, wrongly understanding it had no discretion but to
1 All further undesignated statutory references are to the Penal Code.
1
impose the consecutive sentences.” In light of the decision to remand, we did
not reach DeLeon’s argument concerning whether his original sentence
constituted cruel and unusual punishment. (DeLeon I, at p. *20.) On
remand, after noting that consecutive sentences were not required, the trial
court imposed the same sentence—an aggregate term of 50 years to life.
DeLeon now renews his argument that his sentence constitutes cruel
and unusual punishment under California law—article I, section 17 of the
California Constitution—and federal law—under the Eighth Amendment of
the United States Constitution. We disagree with DeLeon and affirm.
BACKGROUND
Evidence at Trial
We include a comprehensive summary of the facts relating to the
evidence at trial, leading to DeLeon’s convictions and sentence, in our
previous opinion. (DeLeon I, supra, 2021 WL 5446280.) We reproduce a
portion of that summary here, to provide a description of the factual basis for
our decision regarding DeLeon’s contentions regarding his sentence.
In 2003, when he was 28, DeLeon began a relationship with Cristiana,
a 48-year-old woman with seven children and several grandchildren. DeLeon
and Cristiana lived in Christiana’s house in San Francisco (the house).
Christina’s daughter, Sitti, moved there with her husband Sean and their
two children, a son Cristian, born in 2002, and a daughter S.M., born in 2004.
A third child, a daughter, C.M., was born in 2008. Sitti, Sean, and the girls
lived in an “in-law unit” inside the garage, which had a “living room of sorts”
with a couch. Cristian, C.M. and S.M.’s older brother, lived in a separate
room in the backyard.
2
Cristiana’s son Andrew also lived in the house, in another upstairs
bedroom. Andrew had a daughter, S.A., who lived with her mother Sheryl F.
S.A. visited the house on weekends.
An April 2017 investigation by Child Protective Services transformed
into a sexual abuse investigation concerning DeLeon’s conduct. John Viet led
the investigation. Ultimately, investigators interviewed Sitti’s three
children, C.M., S.M., and Christian, and Andrew’s daughter, S.A. At the time
of trial, C.M. was 10, S.M. was 15, and S.A. was nine years old.
As summarized at length in our earlier opinion, C.M., S.M., and S.A. all
described multiple incidents of inappropriate touching by DeLeon, including
of their torsos and genitals. To provide just a few examples of the children’s
testimony, C.M. remembered that DeLeon “touched her on her arms, legs,
“butt,” and “private,” which she used to “go pee,” which occurred when her
parents and siblings were downtown, and she remained at the house with her
grandmother and defendant.” (DeLeon I, supra, 2021 WL 5446280 at p. *2.)
“[S]he ‘wanted to say, “Stop,” ’ but ‘was too scared,’ thinking defendant ‘might
get mad, or [her grandma] might think [she] was lying.’ ” (Ibid.) DeLeon
then “flipped over his hands to [her] butt’ and moved his hand ‘all around.’ ”
(Ibid.)
S.M. testified that “when she was about eight years old” DeLeon
“started to touch her ‘in places where [she] didn’t appreciate being touched,’
specifically, her ‘boobs,’ ‘butt,’ and ‘private part,’ that . . . she used ‘[t]o pee.’ ”
(Ibid.) S.M. explained the touching “ ‘just happened often in the same places.
That’s why, it’s not something I want to remember, but it’s something like . . .
that’s why I can’t say I know I remember the very first time it started
happening. But . . . if anything, all the times it did happen they were mostly
the same, because they mainly happened in the same spots.’ As to the
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frequency of the touching, S.M. testified, ‘It would happen many times. I
can’t give you an exact number because I [did not] count. I can tell you that,
within those years that it happened, it was probably more than 10, probably
more than 15, probably more than 20. Because it happened pretty often.’ ”
(Ibid.) S.M. specifically described DeLeon standing “next to her, in back of
her so that the others could not see. S.M. felt defendant put his hand in her
pants and touch her ‘butt’ inside her underwear with his bare hand for
‘probably less than a minute,’ and then squeeze her ‘butt.’ When [DeLeon]
took his hand out, S.M.’s pants ‘smack[ed]’ or ‘snap[ped]’ against her back.”
(Id. at p. *3.) S.M. testified about another incident in which DeLeon “stood
behind S.M. and rubbed ‘his private part’ against her ‘butt’ and breathed on
S.M.’s neck and kissed it. Christian looked up and [DeLeon] ‘backed away,’
saying ‘Oh, what are [you] doing on your phone?’ In her view acting as if ‘he
was interested in what [she] was doing, to play it off like he wasn’t just doing
the things he was doing.’ ” (Ibid.)
S.A. similarly testified she had stopped visiting her grandmother’s
house on the weekends because “ ‘something had happened’ in [DeLeon’s]
room—he ‘touched [her] private part,’ the part she used ‘to pee.’ S.A. said
[DeLeon] told her not to tell anybody about the touching, and she complied
because she ‘was scared [she] was going to get in trouble’ with her mother
and [DeLeon].” (DeLeon I, supra, 2021 WL 5446280 at p. *4.)
The children testified concerning other graphic examples, as
summarized in our earlier opinion. (DeLeon I, supra, 2021 WL 5446280 at
pp. *2–*4.) Christian corroborated incidents relating to his sisters, C.M. and
S.M. Based on witness testimony, the incidents recurred as to each step
granddaughter over a period of months or years.
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In his defense, DeLeon testified for some four hours. He described
various incidents in which he suffered abuse in his childhood, beginning
when he was age five. He described difficulties interacting with Christina’s
family, including “confrontations” where “sometimes they call[ed] the police.”
He said he tried his best to fulfill his role as a step-grandparent, testifying he
especially cherished the gatherings in what he called the upstairs kitchen
room.
DeLeon admitted to having occasional physical contact with the
children, such as bouncing them on his knee, but denied anything sexual took
place. DeLeon reported that while he did not babysit either S.M. or C.M.,
and “seldom” went to the garage room with the television, he did often see the
children at the home, especially upstairs with Cristiana present. DeLeon
generally denied any contact with the children for sexual arousal. Rather, he
testified he had a good relationship with C.M. and S.M., and that he “tried to
get close to them” and “to get along with them.” He blamed difficulties in his
relationship with them on Sitti.
Remand and Resentencing
On remand, both parties submitted revised sentencing memoranda,
which the trial court reviewed prior to the August 17, 2022 resentencing
hearing. At the beginning of the hearing, the trial court issued a tentative
ruling, imposing an indeterminate term of 50 years to life as to counts 1 and
4. The trial court noted that consecutive sentencing was not mandatory,
which had not been discussed on the record at the original sentencing
hearing. The trial court expressed its intent to exercise its discretion based
on its “review of all of the factors . . . namely, that there were multiple
victims, that all three victims were under the age of 14 and that the crime in
Counts 1 and 4 occurred over a period of years to impose full separate and
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consecutive sentences for the defendant’s conviction for violation of Penal
Code section 288.5 in Counts 1 and 4.”
Before hearing argument, the trial court advised counsel that it had
carefully considered the cruel and unusual punishment issues raised. The
court explained: “Before I hear argument from counsel, I would like to note I
carefully considered defense counsel’s argument that the imposition of
consecutive sentences on Counts 1 and 4 constitutes cruel and unusual
punishment in violation of the Eighth Amendment of the U.S. Constitution
and Article 1 section 17 of the California Constitution. [¶] Counsel argued
that Mr. DeLeon’s conduct was substantially less serious and is often seen in
cases of child molestation. There was no oral copulation neither vaginal nor
anal penetration and Mr. DeLeon never asked or forced any of the girls to
touch him. [¶] Counsel also correctly notes that the sentence for oral
copulation with or sexual penetration of a minor under the age of ten years is
15 years to life and that sexual penetration even if accomplished by force,
violence, duress, menace or fear against a minor under the age of 14 years is
punishable by eight, ten, or twelve years in prison. None of that conduct
occurred in this case. And the defendant will receive a longer sentence than
mandated for these crimes. [¶] Although I would agree there is an inference
of disproportionality when comparing the mandatory sentence in this case to
the sentence required for the other offenses referenced above, I do not believe
the mandated sentence rises to the level of violating the provisions of the U.S.
or California Constitution. [¶] I am required to follow the sentencing laws as
enacted by the legislature and to the extent that defense believes some of
these laws need to be amended or updated, I would encourage him to present
his arguments to the legislature.”
DeLeon now appeals a second time.
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DISCUSSION
A. Standard of Review and Applicable Law
The trial court re-sentenced DeLeon to two consecutive terms under
section 667.61, commonly known as the “One Strike” law, which is an
alternative sentencing scheme that applies to specified felony sex offenses.
(People v. Reyes (2016) 246 Cal.App.4th 62, 79 (Reyes).) DeLeon does not
challenge the One Strike law as unconstitutional on its face. Instead, he
contends that “as applied” to this case, his 50-years-to-life sentence for counts
1 and 4 was “disproportionate to the actual conduct and thus offends both
state and federal provisions against cruel and unusual punishment.”
1. “As Applied” Constitutional Challenges
“Unlike a ‘facial challenge,’ an ‘as applied’ challenge may seek ‘relief
from a specific application of a facially valid statute or ordinance to an
individual or class of individuals who are under allegedly impermissible
present restraint or disability as a result of the manner or circumstances in
which the statute or ordinance has been applied[.]’ ” (People v. D.L. (July 3,
2023, A164432) __ Cal.App.5th __ [2023 WL 4342391, p. *7], quoting Tobe v.
City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) “An ‘as applied’ challenge
‘contemplates analysis of the facts of a particular case or cases to determine
the circumstances in which the statute or ordinance has been applied and to
consider whether in those particular circumstances the application deprived
the individual to whom it was applied of a protected right.’ (Ibid.) ‘When a
criminal defendant claims that a facially valid statute or ordinance has been
applied in a constitutionally impermissible manner to the defendant, the
court evaluates the propriety of the application on a case-by-case basis to
determine whether to relieve the defendant of the sanction.’ (Ibid., citing
Hale v. Morgan (1978) 22 Cal.3d 388, 404.)” (D.L., at p. *7.)
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2. Federal and State Constitutional Standards Regarding Punishment
“ ‘The Eighth Amendment to the United States Constitution applies to
the states. [Citation.] 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.)’ ” “A punishment is cruel or unusual in
violation of the California Constitution ‘if, although not cruel or unusual in
its method, it is so disproportionate to the crime for which it is inflicted that
it shocks the conscience and offends fundamental notions of human dignity.’
[Citation.] Because it is the Legislature’s function to define crimes and
prescribe punishments, the judiciary should not interfere ‘unless a statute
prescribes a penalty “out of all proportion to the offense.” ’ ” (People v. Baker
(2018) 20 Cal.App.5th 711, 723 (Baker).)
Review of a state law claim of excessive punishment involves “(1) an
examination of the nature of the offense and the offender, with particular
attention to the degree of danger both pose to society; (2) a comparison of the
punishment with the punishment California imposes for more serious
offenses; and (3) a comparison of the punishment with that prescribed in
other jurisdictions for the same offense.” (In re Palmer (2021) 10 Cal.5th 959,
973.)
“In our tripartite system of government, the legislative branch defines
crimes and prescribes punishment. [Citation.] It is therefore the rare case
where a court could declare the length of a sentence mandated by the
Legislature unconstitutionally excessive. [Citation.] Even so, it is the
judiciary’s responsibility to condemn any punishment that is cruel or
unusual. [Citation.] We independently review whether a punishment is
cruel or unusual, considering any underlying disputed facts in the light most
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favorable to the judgment.” (People v. Avila (2020) 57 Cal.App.5th 1134,
1145–1146.)
B. Analysis
1. The “One Strike” Law
The One Strike law is intended “ ‘ “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.]” (Reyes, supra, 246
Cal.App.4th at p. 79.) “According to a general statement of purpose in the
legislative history, the targeted group preys on women and children, cannot
be cured of its aberrant impulses, and must be separated from society to
prevent reoffense. [Citation.]” (People v. Wutzke (2002) 28 Cal.4th 923, 929–
930.)
The One Strike law applies to the crime of continuous sexual abuse of a
child under the age of 14. (§§ 288.5, 667.61, subd. (b)(9). The jury convicted
DeLeon on two counts—one against C.M. and one against S.M. The jury
found true the aggravating factors that DeLeon committed one of those
crimes against more than one victim, and the victims were under the age of
14. The trial court therefore applied the One Strike law and imposed an
indeterminate sentence of 25 years to life on each count. (See § 667.61,
subds. (e)(4), (j)(2), (o); see also People v. Alvarado (2001) 87 Cal.App.4th 178,
186 [“Section 667.61 mandates indeterminate sentences of . . . 25 years to life
for specified sex offenses that are committed under one or more ‘aggravating
circumstances,’ such as when the perpetrator . . . sexually victimizes more
than one person”].)
In DeLeon’s original appeal, we remanded the case for resentencing
because “the trial court ‘incorrectly believed that consecutive sentencing,”
9
rather than imposing concurrent sentences, “was mandatory.” (DeLeon I,
supra, 2021 WL 5446280 at p. *20.) On remand, the trial court confirmed it
understood that imposing a consecutive sentence was discretionary here, and
then re-imposed the two consecutive sentences, for an aggregate sentence of
50 years to life. We therefore turn to DeLeon’s arguments that the One
Strike law is unconstitutional as applied to him here.
2. Article I, Section 17 of the California Constitution
a. Nature of the Offense and of the Offender
We begin our discussion with the three-pronged analysis required by
our state Constitution, whose protections exceed the federal standard. “ ‘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.” ’ ” (Reyes, supra, 246 Cal.App.4th at
p. 87.)
Based on the record at trial in this case, the considerations described in
Reyes do not indicate a grossly disproportionate punishment. DeLeon was an
adult in his late 30’s when he repeatedly molested his wife’s young
granddaughters over a period of years, starting when they were 10 and 6
years old and living in DeLeon’s home. The “sexual abuse of children plainly
is a grave and serious crime and few crimes . . . are more despicable because
of the life-long consequences to the victims.” (See People v. Christensen
(2014) 229 Cal.App.4th 781, 806 [lewd conduct on a child “may have lifelong
consequences to the well-being of the child”]; Baker, supra, 20 Cal.App.5th at
10
p. 724 [“ ‘There exists a strong public policy to protect children of tender
years’ ”].)
DeLeon attempts to rely on In re Rodriguez (1975) 14 Cal.3d 639(superseded by statute as explained in In re Palmer, supra, 10 Cal.5th at
p. 975), but that case presented a very different set of facts. By the time the
defendant in Rodriguez filed his habeas corpus petition, he had already
served 22 years in prison based on an indeterminate sentence of one-year to
life on a single count of lewd conduct. The court found that 22 years of
imprisonment was disproportionate to the petitioner’s conduct because only a
single incident of lewd conduct was involved, which “caused no physical harm
to the victim” and “lasted only a few minutes.” The petitioner “was only 26
years old at the time of the offense,” and his “conduct was explained in part
by his limited intelligence” (with an IQ of 68), “his frustrations brought on by
intellectual and sexual inadequacy, and his inability to cope with these
problems.” (Rodriguez, at pp. 653–655.)
DeLeon presents a stark contrast. DeLeon was a trusted family
member and caretaker for the victims he molested—his wife’s
granddaughters, who lived under the same roof. DeLeon was well past age
26 when he committed his crimes. The record lacks evidence that he had any
cognitive deficits that were somehow connected to his crimes.
Any sexual abuse of a child in isolation is a serious offense.
Cumulatively, DeLeon’s offenses were a grave violation of trust. DeLeon’s
multiple acts of molestation of multiple children are also more aggravated
than the single incident in Rodriguez, and DeLeon’s conduct occurred over an
extended period of time. (See Baker, supra, 20 Cal.App.5th at pp. 715, 727
[15 years to life sentence for single count of oral copulation of six year old was
not cruel or unusual; the nature of the offense was significantly more
11
aggravated than the offense in Rodriguez].) The jury convicted DeLeon of
two acts of continuous sexual abuse of two young children under the age of
14. As our Supreme Court has recognized, persons convicted of sex crimes
against multiple victims under the One Strike law “ ‘are among the most
dangerous’ from a legislative standpoint.” (People v. Wutzke, supra, 28
Cal.4th at pp. 930–931; see also People v. Estrada (1997) 57 Cal.App.4th
1270, 1282 [“The penalty for a single offense cannot be properly compared to
the penalty for multiple offenses”].)
The trial court imposed a very severe sentence, but the record reflects
that the court reflected on that fact in deciding to impose it. While there
appears to have been no lasting physical harm to the children, continuous
sexual abuse does not require such harm. (See § 288.5.) The offense
“provide[s] ‘additional protection’ for victims of child molestation by assuring
that ‘resident’ child molesters and others who repeatedly abuse a child over a
prolonged period of time would not escape prosecution because of difficulties
in pleading and proving with sufficient precision the dates, times, and
particular nature of each molestation.” (People v. Rodriguez (2002) 28
Cal.4th 543, 549.) Section 288.5 defines a criminal offense that is related to
but different from pre-existing crimes concerning sexual abuse of minors and
imposes a range of appropriate potential sentences (6, 12, or 16 years).2
(People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177.)
2 For the first time in his reply brief, DeLeon suggests that because
“recurring access” is an element of section 288.5, any justification for
increased punishment based on the multi-year span of his offenses would
have been an impermissible dual use of the facts. Of course, it is an
established rule of review that appellate courts do not ordinarily consider
issues raised for the first time in a reply brief. (American Indian Model
Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275–
276.) In any event, DeLeon’s suggestion is without merit. DeLeon received
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DeLeon’s argument that there was no evidence he used force to abuse
his wife’s young granddaughters is similarly without merit. Preying upon
children in their own home is an insidious form of abuse. “[C]hildren are
‘uniquely susceptible’ to such abuse as a result of their dependence upon
adults, smaller size, and relative naiveté. [Citation.] . . . [A]lso . . . young
victims suffer profound harm whenever they are perceived and used as
objects of sexual desire. [Citation.]” (People v. Martinez (1995) 11 Cal.4th
434, 443–444.) Tragically, DeLeon’s conduct was apparently undeterred even
by the presence of other family members living in the same house. The fact
that continuous sexual abuse is listed among other One Strike offenses that
do require an element of force is consistent with the legislative purpose of
imposing significant penalties against resident child molesters.
Here, C.M. “feared” that DeLeon “might get mad” if she told him to stop
inappropriately touching her. S.M. tried to “black out” the abuse and did not
want to tell anyone about it; she was afraid that something might happen to
her or other members of her family. Again, DeLeon was a trusted family
member and lived in the same home in which the young victims lived. The
victims’ fear, reflected in the record, was heightened by their vulnerability.
b. Punishments for More Serious Offenses in California
In order to argue that his sentence is out of proportion to his crimes,
DeLeon compares his mostly over-the-clothes touching against C.M. and S.M.
(though he acknowledges that “one instance was described as having his
hand inside C.M.’s pajamas”) with offenses involving “more serious” crimes,
such as assault with intent to commit rape, pimping or pandering for
increased punishment not because of a dual use of the same facts but rather
based on the legislative determination that multiple acts of sexual
molestation against multiple children described in section 288.5 require such
punishment.
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prostitution, or crimes involving sexual penetration or sodomy, which may
have shorter terms. Courts rejected similar arguments in Baker, supra, 20
Cal.App.5th at pages 727–729, and Reyes, supra, 246 Cal.App.4th at pages
88–89. “ ‘Punishment is not cruel or unusual merely because the Legislature
may have chosen to permit a lesser punishment for another crime. Leniency
as to one charge does not transform a reasonable punishment into one that is
cruel or unusual.’ ” (Baker, at p. 727.) “[T]he punishment under the One
Strike law ‘is precisely tailored to fit crimes bearing certain clearly defined
characteristics.’ ” (Reyes, at p. 89 [upholding sentence of life without the
possibility of parole for forcible oral copulation and forcible rape during the
commission of a burglary under the One Strike law].)
Given DeLeon’s position of trust relative to his wife’s granddaughters,
and the duration and extent of his misconduct, this is just not one of the
“rarest of cases” where the sentence mandated by statute is
unconstitutionally excessive. (People v. Martinez (1999) 76 Cal.App.4th 489,
494; see Baker, supra, 20 Cal.App.5th at p. 730 [“A comparison of the
mandatory 15-year-to-life sentence under section 288.7, subdivision (b) to the
punishments for similar and more serious sex offenses in California does not
suggest this is that ‘rarest of cases’ in which ‘the length of a sentence
mandated by the Legislature is unconstitutionally excessive’ ”].)
c. Punishment for Similar Offenses in Other States
Finally, DeLeon’s comparison of his sentence to sentences available in
other states is likewise unavailing. DeLeon argues that his sentence is cruel
or unusual because, of the seven states that have “continuous abuse
statutes,” only California and two other states have “a mandatory
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enhancement elevating a determinate term to a life sentence based on there
being multiple victims.”3
The fact that not every state has a punishment framework to address
offenders who target more than one child victim over a period of time does
not compel the conclusion that it is unconstitutionally cruel or unusual.
(People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California’s
constitutional proscription against cruel or unusual punishment “does not
require California to march in lockstep with other states in fashioning a
penal code. It does not require ‘conforming our Penal Code to the “majority
rule” or the least common denominator of penalties nationwide.’ ” (Ibid.)
Only “when there appears a significant disproportion between a challenged
penalty and that imposed for the same crime by our sister states” should the
penalty be deemed suspect. (People v. Wingo (1975) 14 Cal.3d 169, 179.)
DeLeon has not satisfied his burden to show that his sentence under the One
Strike law is excessive in comparison to the same offense in other
jurisdictions. In sum, we reject DeLeon’s contentions that his sentence
constitutes cruel or unusual punishment in violation of the California
Constitution.
3. The Eighth Amendment
DeLeon has not established his sentence constitutes cruel and unusual
punishment under the Eighth Amendment either. As the court explained in
Baker, supra, 20 Cal.App.5th at page 733, we “begin an Eighth Amendment
analysis ‘by comparing the gravity of the offense and the severity of the
sentence.’ [Citation.] ‘This analysis can consider a particular offender’s
3 DeLeon identifies seven states as having “continuing abuse” statutes:
Arizona, Delaware, Hawaii, Maryland, North Dakota, Tennessee, and Texas.
He identifies Texas and North Dakota as the other two states with a multiple
victims enhancement.
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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.’
[Citation.] Only in the rare case in which this threshold comparison leads to
an ‘ “inference of gross disproportionality’ ” do we proceed to ‘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.’ ”
For the reasons explained above, a comparison of the relevant factors in
this case does not lead to “an inference of gross disproportionality.” DeLeon
engaged in multiple sexual offenses against multiple, young, vulnerable
victims, abusing his position of trust to do so. DeLeon has not shown that his
sentence violates the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
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_________________________
Markman, J.*
We concur:
_________________________
Stewart, P.J.
_________________________
Miller, J.
People v. DeLeon (A166290)
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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