Filed 5/1/14 P. v. Escobedo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062918
Plaintiff and Respondent,
v. (Super. Ct. No. SCN295204)
GERARDO DEJESUS ESCOBEDO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Affirmed as modified.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal for
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION
A jury convicted Gerardo DeJesus Escobedo of 14 counts of committing a lewd
and lascivious act on a child under the age of 14 years (Pen. Code, § 288, subd. (a).)1 As
to eight of the counts, the jury found true allegations the crime involved substantial
sexual conduct with the victim (§ 1203.066, subd. (a)(8)). As to all of the counts, the jury
found true allegations the crimes were committed against more than one victim
(§§ 667.61, subds. (b), (c) & (e); 1203.066, subd. (a)(7)). The court sentenced him to
consecutive terms of 15 years to life in prison for each count, for an aggregate sentence
of 210 years to life. The court also imposed various fines and fees, including a laboratory
analysis fee of $190 (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee of
$570 (Health & Saf. Code, § 11372.7, subd. (a)).
Escobedo appeals, contending the victims' generic testimony deprived him of due
process, a fair trial, and the opportunity to present an alibi defense. Alternatively, he
contends the victims' generic testimony provided insufficient evidence to support his
convictions. He additionally contends the court abused its discretion in ordering his
sentence for each count to be served consecutively. Alternatively, he contends his
sentence violates the federal and state constitutional protections against cruel and/or
unusual punishment. Lastly, he contends the court erred in imposing laboratory analysis
and drug program fees as he was not convicted of any drug-related offenses.
1 Further statutory references are to the Penal Code. 2 The People concede and we agree the court was not authorized to impose
laboratory analysis and drug program fees in this case. Consequently, we modify the
judgment to strike these fees. We affirm the judgment in all other respects.
BACKGROUND
Prosecution Evidence
During the time span in which the molestations at issue in this appeal occurred,
Escobedo lived at various places. These places included the Paseo del Prado Apartments
(Paseo), the Friendly Hills Mobile Manor (Friendly Hills), and the Cross Creek
Apartments (Cross Creek).
Offenses Against A. (Counts 1-5)
A. is Escobedo's niece. When A. was in elementary and middle school,
Escobedo's wife took care of her and her siblings after school and during the summers.
Escobedo worked, but was sometimes there.
While Escobedo lived at Friendly Hills, he said inappropriate things to A. A.
specifically recalled him telling her "he wanted to put his hotdog in [her] bun." At the
time, he was trying to get her to come to him and lie down with him.
While Escobedo lived at Friendly Hills and at Cross Creek, he came up behind
her, put his arms around her, and massaged her vaginal area over her clothing with one of
his hands. Sometimes he also used the other hand to massage her breasts over her
clothing. This touching occurred "a lot of the time," but never when Escobedo's wife was
around. The touching stopped when the Escobedos stopped babysitting her.
3 Once at Cross Creek, Escobedo strapped her to an inversion table and grabbed her
breast while flipping her over. Another time at Cross Creek, he came out of the shower
with a towel wrapped around him. He saw her standing in the hallway, took the towel
off, and exposed himself to her.
Once, when A. was 13, Escobedo came over to her house to pick up some tools.
As she sat at the computer, he walked over to her, grabbed and massaged her breast, and
started walking away. She became angry and threw something at him. He became angry,
went back over to her, grabbed and massaged her breast again, and then left.
A. did not tell anyone about these incidents when they occurred. In addition, after
A.'s cousin, K., came forward (see summary, post), an investigator questioned A. and A.
denied Escobedo had engaged in any inappropriate conduct with her. She lied because
she did not want to harm Escobedo's wife and daughter. A week after lying to the
investigator, she told a friend the truth. With the friend's encouragement, she told her
mother and eventually her father. The friend, who was a mandated reporter, notified the
police.
Offenses Against S. (Counts 6-11)
S. is A.'s brother. Once around the time S. was in second grade and Escobedo was
living at Paseo, Escobedo played a game with S. Escobedo had S. close his eyes, then
Escobedo took S.'s hand and placed it on one of Escobedo's body parts and asked S. to
guess what body part it was. Eventually, Escobedo placed S.'s hand on Escobedo's
genital area over Escobedo's clothing. Escobedo told S. "there was no difference between
touchings. Touching is touching, and it doesn't matter where it is."
4 Multiple times from when S. was in the second grade until S. was in the fifth or
sixth grade, at Paseo, Friendly Hills, and Cross Creek, Escobedo would put his hand on
S.'s genital area over S.'s clothing and grope, or massage, S.'s genitals. Sometimes when
this occurred, Escobedo would ask S. to touch him and S. would put his hands on
Escobedo's genitals over Escobedo's clothing.
Several times at Friendly Hills and Cross Creek, Escobedo "flashed" S. and his
siblings. During some of these instances, Escobedo stroked his own penis. Once after
Escobedo flashed S. at Friendly Hills, S. followed Escobedo into the bathroom and saw
Escobedo masturbating himself over the sink. Escobedo asked S. to stroke Escobedo's
penis and S. did. Escobedo then continued to masturbate himself to the point of
ejaculation.
Another time at Friendly Hills, Escobedo massaged S. as S. laid belly down across
Escobedo's lap. As the massage progressed from S.'s shoulders downward, Escobedo
reached between S.'s legs and groped S.'s genital area. On a different occasion at
Friendly Hills, Escobedo asked to see S.'s penis and S. unzipped his pants. Escobedo
stroked S.'s penis and remarked at S. getting an erection because Escobedo did not think
S. could get an erection. S. also remembered seeing Escobedo hug A. from behind at
Friendly Hills and asking her if he could "put [his] hotdog in [her] buns."
5 Once at Cross Creek, Escobedo groped S.'s genitals as the two were watching
television with a blanket over them. Another time when S. stayed overnight at Cross
Creek, Escobedo turned on a pornographic channel and then reached over and groped S.
while S. slept on the couch.
On more than one occasion at Cross Creek, when S. was showering after
swimming, Escobedo opened the shower door, asked to see S.'s penis, and then
masturbated S. to the point of ejaculation. Once Escobedo also masturbated S. while S.
stood over the toilet.
S. did not tell anyone about the incidents when they occurred. During his
freshman and sophomore years in high school, he told some friends and, in his
sophomore year, he told his mom. He also wrote about the matter in a college application
essay, which he discussed with two teachers. He did not formally report the incidents
until after K. and A. came forward.
Offenses Against K. (Counts 12-14)
K. is Escobedo's niece and A. and S.'s cousin. When she was younger, Escobedo's
wife sometimes babysat her during the summers when her parents worked. One day one
summer when K. was eight or nine, she was at Cross Creek in the living room.
Escobedo's wife and young daughter were in the bathroom. Escobedo called her over to
the kitchen area. When she got there, he hugged her tightly from behind and rubbed her
chest over her clothing with one of his hands. She told him to let go of her and tried to
pull away from him, but he would not let her go and whispered "shoosh" into her ear.
6 He released her after the bathroom doorknob rattled. K. could not remember what month
or day the incident occurred, and she did not report the incident to anyone at the time.
Another time the same summer, K. was in the pool. Escobedo, his wife, his
daughter, and some other family members were there as well. Escobedo offered to teach
K. to swim. While she lay atop his arms, he slipped his fingers under her bathing suit top
and caressed the right side of her chest. She told him to stop and tried to roll off of him.
He held onto her waist until she pushed on his arm and fell off. She did not report the
incident at the time.
Another summer at Cross Creek, she and Escobedo's daughter were seated in
chairs next to one another playing a video game on the computer when Escobedo,
shirtless, came up behind his daughter's chair and ask for K.'s hand. K. asked, "Why?"
He responded that he wanted to do something. She gave him her hand and he grabbed
her wrist and started pulling it toward his groin. She tried to pull away and balled her
hand up into a fist. He pulled harder until her knuckles touched his groin over his
clothes. She asked Escobedo's daughter to tell Escobedo to let go of her. Escobedo's
daughter got up and hit Escobedo. He released K. and left. K. did not remember what
day or month the incident occurred, and she did not report it to anyone at the time.
When K. was 12, she was at another aunt's apartment with her mother and other
family members, including Escobedo. Escobedo again grabbed her wrist and started
pulling her arm toward him until her knuckles touched his groin over his clothing. As he
tried to get her to rub his groin area, she tried to pull and claw herself away while also
attempting to block the view of Escobedo's daughter, who was sitting next to Escobedo.
7 When her efforts to free herself did not work, she asked Escobedo's daughter to assist her
in a way that sounded like they were playing a game. Escobedo's daughter punched and
slapped Escobedo until he let go of K. K. did not report the incident to her mother at the
time.
A., S., and K. never spoke to one another about their molestations. However,
about a year before trial, K. told two relatives about the incidents involving her and one
of the relatives helped her tell her mother. Sometime after K. told her mother about the
incidents, Escobedo left a phone message stating that if he had done anything to K., he
had done it unconsciously.
During a phone conversation with a police detective a few months after K.
reported the incidents, Escobedo made contradictory statements. He initially denied each
incident and told the detective there was never any opportunity for the incidents to have
occurred. Although he acknowledged his wife babysat K. during the summer, he said he
was never there. He later said he was sometimes there.
Regarding the kitchen incident, he said the kitchen was always crowded and he
was never alone with K. He said one time he noticed a mark on her wrist and grabbed
her wrist and pulled her toward him to examine it. He also said she was frightened by his
actions and left the kitchen.
Regarding the pool incident, he initially stated he regularly went to the pool with
his family, then he stated he only went to the pool with his daughter, then he stated he
never went into the pool because of a shoulder injury, and then he stated he never went
into the pool because he was embarrassed about the condition of his feet. Eventually he
8 stated that he had been in the pool with K. and did come in contact with her, but she must
have misunderstood what was happening.
During a subsequent in-person interview with the detective, Escobedo denied
having any contact with K., except in the kitchen when he grabbed her wrist. Regarding
the incident when K. was 12, he initially denied having any contact with K. Then, after a
break in the interview, he told the detective he had performed a magic trick for K. and
some other kids. The trick involved placing torn up tissue in his pocket and then
retrieving an intact tissue. He said K. tried to grab the tissue out of his pocket and he
grabbed her hand. He pulled her hand to his groin and held it there for several seconds.
She tried to pull her hand away, but he kept it near his crotch until she asked his daughter
to help her get free. At that point, he realized what was happening and let her go.
Regarding the computer incident, he initially denied having any contact with K.
However, as the conversation progressed he said he may have accidentally bumped into
her. In a separate in-person interview a few days later, he recalled having been in the
computer room under circumstances identical to those described by K. and he said he
might have bumped up against K. while reaching between the chairs to pull out the
keyboard tray. He also said there had been times when he had poked her in the chest
with his finger.
An expert in child sexual abuse syndrome testified false accusations of child
sexual abuse are uncommon. She explained children have a difficult time disclosing
sexual abuse and, when they do disclose it, their disclosure is often significantly delayed.
Delayed disclosure was the most common presentation of sexual abuse. In addition,
9 child molesters are usually well known to their victims, have spent time building
relationships with their victims, and have groomed their victims to accept the abuse.
When a child decides to disclose and the child has been molested multiple times or
over a long period of time, the child may not be able to recount the version of events in
one interview. This is because the child may not have developed enough trust to recount
everything in the first interview, or the child may remember additional information as
time goes by.
It is not unusual for sexually abused children to initially deny the abuse. In
addition, when a child has been subjected to ongoing abuse by the same person in the
same location, the child's ability to remember each specific episode of abuse is highly
diminished. Children have a difficult time with the concept of "when." Consequently,
the timing of the abuse may need to be determined from contextual details such as where
the abuse happened, where the child was living at the time, or what school he or she
attended when it happened.
Defense Evidence
Escobedo's daughter testified her mother sometimes babysat for A. and S. and
sometimes babysat for K. She did not remember whether Escobedo was ever there when
her mother babysat K. He was there a couple of times when her mother babysat A. and
S. She did not remember ever seeing any inappropriate behavior between Escobedo and
A., S., or K. She also never heard him say anything sexual to them. In addition, she
denied her mother babysat A. and S. on a regular basis, she denied ever playing a
computer game with K., and she denied ever going to the pool with K. or with Escobedo.
10 Escobedo's wife testified she babysat K. two or three times a year. She denied
ever watching K. during summers. She also denied ever seeing Escobedo touch or hear
him talk to K. inappropriately. She said he hardly ever went to the pool and never went
with K.
She babysat A. and S. two or three times a week after school or when they were on
vacation. Escobedo worked most of the time, but sometimes would be home. He was
never alone with A. and S. and never babysat them when she was not there. She never
saw him touch or heard him say anything inappropriate to them.
DISCUSSION
I
Generic Testimony
A
The People separated the charges against Escobedo based on the victim and the
date range in which the alleged conduct occurred. For A. and S., the People also
separated the charges based on the location where the alleged conduct occurred, and for
K., the People separated the charges based on the type of conduct.
Specifically, for A., the People charged Escobedo with one count occurring
between August 11, 2006, and August 10, 2008, at A.'s home (count 1); one count for a
first time occurring between April 19, 2003, and June 30, 2008, at Cross Creek (count 2);
one count for a last time between the same dates and at the same location (count 3); one
count for a first time occurring between February 21, 2002, and April 18, 2003, at
Friendly Hills (count 4); and one count for a last time occurring between the same dates
11 and at the same location (count 5). For S., the People charged Escobedo with one count
for a first time occurring between January 1, 1997, and February 20, 2002, at Paseo
(count 6); one count for a last time occurring between the same dates and at the same
location (count 7); one count for a first time occurring between February 21, 2002, and
April 18, 2003, at Friendly Hills (count 8); one count for a last time occurring between
the same dates and at the same location (count 9); one count for a first time occurring
between April 19, 2003 and June 30, 2008, at Cross Creek (count 10); and one count for a
last time occurring between the same dates and at the same location (count 11). Finally,
for K., the People charged Escobedo with one count of touching K.'s body between
April 1, 2005 and January 1, 2011 (count 12); one count for a first time of pulling K.'s
hand onto his body between the same time period (count 13); and one count for a last
time of pulling K.'s hand onto his body between the same time period (count 14).
The court subsequently instructed the jury, "The defendant is charged with a lewd
or lascivious act on a child under the age of 14 years in count one sometime during the
period of August 11, 2006 and August 10, 2008. The defendant is charged with a lewd or
lascivious act on a child under the age of 14 years in counts two, three, ten and eleven
sometime during the period of April 19, 2003 and June 30, 2008. The defendant is
charged with a lewd or lascivious act on a child under the age of 14 years in counts four,
five, eight, and nine sometime during the period of February 21, 2002 and April 18, 2003.
The defendant is charged with a lewd or lascivious act on a child under the age of 14
years in counts six and seven sometime during the period of January 1st, 1997 and
February 20, 2002. The defendant is charged with [a] lewd or lascivious act on a child
12 under the age of 14 in counts 12, 13 and 14 sometime during the period of April 1st, 2005
and January 1, 2011.
"The People have presented evidence of more than one act to prove that the
defendant committed these offenses. You must not find the defendant guilty unless:
[¶] Number one, you all agree the People have proved that the defendant committed at
least one of these acts, and you all agree on which act he committed for each offense; or
number two, you all agree that the People have proved that the defendant committed all
of the acts alleged to have occurred during the period, and . . . have proved that the
defendant committed at least the number of offenses charged."
B
Escobedo contends we must reverse his convictions because the prosecution's use
of nonspecific or "generic" testimony deprived him of his rights to due process and a fair
trial. Although this contention was previously rejected by the California Supreme Court
in People v. Jones (1990) 51 Cal.3d 294, 316-319 (Jones), Escobedo contends Jones only
applies to "resident child molester" cases and this is not such a case because he never
lived with any of the victims and never had uninterrupted or continual access to them.
We disagree.
As the People point out, in the analogous crime of continuous sexual abuse of a
minor (§ 288.5), "continuous access" is synonymous with "recurring access" and simply
means the defendant has "an ongoing ability to approach and contact [the victim] time
after time." (People v. Rodriguez (2002) 28 Cal.4th 543, 546-547.) The purpose of
13 section 288.5 is to assure " '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, at p. 549.) The rules
developed in Jones were intended to address the same problem. (Jones, supra, 51 Cal.3d
at p. 305 ["any constitutional principles or evidentiary standards we develop should
attempt to assure that the resident child molester is not immunized from substantial
criminal liability merely because he has repeatedly molested his victim over an extended
period of time"].) Accordingly, we cannot fathom any rational basis for defining
"continuous access" differently when applying Jones than when applying section 288.5.
As the evidence shows Escobedo had an ongoing ability to approach and contact each of
the victims, we conclude Jones applies here.
Escobedo also contends we must reverse his conviction because the date ranges
for charges were not narrow enough to allow for an alibi defense. This contention was
also addressed and rejected in the Jones case. The Jones court recognized a criminal
defendant generally has no right to notice of the specific time or place of an offense,
provided the offense occurred within the applicable limitations period. (Jones, supra, 51
Cal.3d at p. 317.) The court also recognized identity and alibi defenses can rarely be
raised in cases where the defendant had recurring access to and engaged in ongoing
molestation of the victims. (Id. at p. 319.) Instead, the trial usually centers on the parties'
respective credibility. (Ibid.)
14 Nonetheless, Escobedo was able to assert an alibi defense in this case by
presenting testimony from his wife, who insisted Escobedo never went swimming with
K. and was never alone with any of victims at any time. As the Jones court explained,
"[W]hen an alibi defense is tendered, there is no reason why the jury would be less
inclined to credit the defense as applied to appropriate counts, merely because the
victim's generic testimony has implicated the defendant in additional counts or offenses
not challenged by the alibi. Indeed, the fact that the defendant has established an alibi
covering some of the time periods alleged in the information could significantly
undermine the victim's testimony as to the remaining counts." (Jones, supra, 51 Cal.3d at
p. 319.)
Moreover, Escobedo also had other reasonable defense avenues available to him,
including testifying on his own behalf and directly denying any wrongdoing, cross-
examining prosecution witnesses, presenting expert character evidence, introducing
evidence of the victims' past fabrications, and offering innocent explanations for the
victims' knowledge of sexual behavior or of his physical characteristics. (Jones, supra,
51 Cal.3d at p. 320.) Escobedo, therefore, has not established the victims' generic
testimony deprived him of a reasonable opportunity to defend the charges against him.
15 3
Solely for purposes of collateral federal court review, Escobedo contends Jones
was wrongly decided for the reasons stated in Justice Mosk's dissenting opinion in the
case. (Jones, supra, 51 Cal.3d at pp. 323-335.) We need not address this contention
because, as Escobedo acknowledges, the Jones case is binding on us. (Auto Equity Sales,
Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
C
Escobedo alternatively contends there is insufficient evidence to support his
convictions. When deciding a claim of insufficient evidence in a criminal case, " 'we
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] The standard of review is the same in cases in which the
People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the
jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant's guilt beyond a
reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment." '
[Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that
16 upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)
A victim's statements may support a conviction under section 288, subdivision (a),
if the statements "describe the kind of act or acts committed with sufficient specificity,
both to assure that unlawful conduct indeed has occurred and to differentiate between the
various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or
sodomy). Moreover, the victim must describe the number of acts committed with
sufficient certainty to support each of the counts alleged in the information or indictment
(e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able
to describe the general time period in which these acts occurred (e.g., 'the summer before
my fourth grade,' or 'during each Sunday morning after he came to live with us'), to
assure the acts were committed within the applicable limitation period. Additional details
regarding the time, place or circumstance of the various assaults may assist in assessing
the credibility or substantiality of the victim's testimony, but are not essential to sustain a
conviction." (Jones, supra, 51 Cal.3d at p. 316.)
Here, each of the three victims testified to specific types of conduct, including
masturbation, breast massaging, and genital massaging. In addition, each testified the
conduct occurred at particular locations either once or repeatedly and they identified their
approximate ages, grades, and the general time period (i.e., after school or during the
summer) when the conduct occurred. To further establish the timing of the conduct, the
prosecutor introduced evidence of when Escobedo lived at the locations where the
conduct occurred. Moreover, Escobedo admitted to a detective that physical contact with
17 K. occurred. Collectively, this evidence is sufficient to establish each of the charges for
which Escobedo was convicted. (People v. Fernandez (2013) 216 Cal.App.4th 540, 557
[defendant may be constitutionally convicted of child molestation based on "generic
evidence describing (1) the kind of acts committed, (2) the number of acts committed
with sufficient certainty to support the alleged counts, and (3) the general time period in
which the acts occurred"]; People v. Matute (2002) 103 Cal.App.4th 1437, 1446 ["[I]n
child molestation cases, as long as the victim specifies the type of conduct involved, its
frequency, and that the conduct occurred during the limitation period, nothing more is
required to establish the substantiality of the victim's testimony"].)
II
Consecutive Sentences
The parties agree the court was obliged to impose an indeterminate term of 15
years to life for each of Escobedo's offenses. (People v. Wutzke (2002) 28 Cal.4th 923,
930; People v. Valdez (2011) 193 Cal.App.4th 1515, 1521; People v. Rodriguez (2005)
130 Cal.App.4th 1257, 1261-1262.) The parties also agree the court had the discretion to
impose the sentences concurrently or to impose some or all of them consecutively.
(People v. Valdez, at p. 1524; People v. Rodriguez, at pp. 1262-1263.)
At the outset of the sentencing hearing, the court explained that, when deciding
whether to impose concurrent or consecutive sentences, "One of the things I always look
at is whether there is an adequate opportunity to stop doing what you're doing or not, and
if there is no real opportunity, it would seem to me you ought to run them concurrently,
18 and if there is that adequate opportunity to reflect upon what you are doing, then they
ought to run consecutive."
During the sentencing hearing, the parties raised and the court considered a variety
of factors, including whether Escobedo committed the crimes at separate times and
places, whether he had an adequate opportunity between his crimes to reflect upon and
stop his conduct, the nature and severity of his conduct, the vulnerability of the victims,
his relationship to the victims, and his lack of a prior criminal history. The court also
considered the information contained in the probation officer's report, including the result
of a risk assessment indicating Escobedo posed a low recidivism risk. However, the
court did not accord any weight to the assessment result, finding it "unbelievable" since
Escobedo committed multiple offenses against multiple victims.2
In reaching its sentencing decision, the court recognized "there is a certain silliness
maybe in going 210 to life, because absent something extremely unusual, that's not going
to occur." (Italics omitted.) However, the court also recognized the Legislature
established the sentencing scheme and "it does lead every once in a while to these that
you see of this 210, 400 and something." The court went on to state, "Minimum, it would
2 One of the factors considered in the assessment was Escobedo's age. The assessment result was based on Escobedo's age being "60 or older." He was actually 48 years old at the time of the assessment. Although the probation officer's report discusses some of the methodology for the assessment, it does not explain this discrepancy or suggest it was intentional. Statistically, the risk of sexual reoffense decreases with age and the risk assessment is intended to account for this decrease. (People v. McKee (2012) 207 Cal.App.4th 1325, 1341, fn. 4.) Consequently, we presume the result of the risk assessment would have been less favorable to Escobedo had the result been based on his actual age; however, we do not know the precise effect of the discrepancy. 19 seem to me, is 45 to life, and that's each victim, 15 to life, but then what about all of these
counts over a long period of time, different locations, opportunities to stop. [¶] That's
where I am thinking, that this is a 210 to life, as silly as that may sound."
Ultimately, the court selected the 210 years to life option. The court explained, "I
have given this one some thought. I mean, I think there are really three alternatives here
for me: 15 to life, 45 to life, or 210 to life. And I agree with you on many of the things
you said, counsel, meaning defense counsel. What we see in this courthouse is usually a
lot worse than this. It involves insertions and oral copulations and sometimes use of guns
and knives to carry out the nefarious activities. [¶] And I took very much to heart what
you put in the Statement of Mitigation on page 3, and I think that pretty well analyzes it.
[¶] And then I went over my notes again last night just to make sure that at least in my
own mind, I am satisfied in doing the right thing. And I am just looking at the number of
times, the different locations, and the different victims. And I just can't see that this
should be anything less than 210 to life." The court went on to express that even though
Escobedo would likely never get out of prison regardless of the sentence imposed, "I
think he deserves [a sentence of 210 years to life]. That's basically what it comes down
to. Mr. Escobedo, you just deserve it."
20 B
Escobedo contends the court erred in imposing consecutive sentences because his
conduct did not warrant consecutive sentences, he has no prior criminal history, and the
risk assessment showed he posed a low recidivism risk. We are not persuaded by this
contention.
"[A] trial court has discretion to determine whether several sentences are to run
concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse,
the trial court's discretion in this respect is not to be disturbed on appeal. [Citations.]
Discretion is abused when the court exceeds the bounds of reason, all of the
circumstances being considered." (People v. Bradford (1976) 17 Cal.3d 8, 20.)
In determining whether to impose consecutive sentences, a court may consider
whether: "(1) The crimes and their objectives were predominantly independent of each
other; [¶] . . . or [¶] (3) The crimes were committed at different times or separate places,
rather than being committed so closely in time and place as to indicate a single period of
aberrant behavior." (Cal. Rules of Court, rule 4.425(a); People v. Rodriguez, supra, 130
Cal.App.4th at p. 1262.)3 The court may also consider other aggravating and mitigating
circumstances, except a fact used to impose an upper term, a fact used to otherwise
enhance the sentence, or a fact that was an element of the crime. (Rule 4.425(b).)
Aggravating factors may include the victims' vulnerability, the level of planning and
sophistication involved in the crimes, and the use of a position of trust to commit the
3 Further rule references are to the California Rules of Court. 21 crimes. (Rule 4.421(a)(3), (8), & (11).) Mitigating factors may include a lack of a prior
criminal record. (Rule 4.423(b)(1).)
Here, the record shows the court considered numerous aggravating and mitigating
factors, including the nature and severity of Escobedo's conduct, his lack of a prior
criminal history, and the result of the risk assessment. The court ultimately rested its
decision on the fact Escobedo committed his crimes against different victims at different
times and places. This factor is an appropriate factor for imposing consecutive sentences
(Rule 4.425(a)(3)), and Escobedo has not supplied any authority indicating the court's
primary reliance on this factor was outside the bounds of the court's discretion. Indeed,
the imposition of consecutive sentences does not require a court finding of any
aggravating circumstances. (People v. Black (2007) 41 Cal.4th 799, 822 [a court may
consider aggravating and mitigating factors, but it is not required to find any aggravating
circumstance exists to justify imposing consecutive terms].)
Escobedo criticizes the court's failure to give proper weight to the mitigating
factors, including the risk assessment result, and impose a sentence that would give him
at least an opportunity for parole in his lifetime. However, he has not cited any authority
obliging the court to accord any factor any particular weight. To the contrary, "[t]he
process of weighing the relative merits of the aggravating and mitigating factors is for the
trial court; we do not substitute our judgment on such matters." (People v. Calderon
(1993) 20 Cal.App.4th 82, 87, fn. omitted.) He also has not cited any authority, nor are
we aware of any, requiring the court to ensure its sentence would allow him the
22 opportunity for parole in his lifetime. Accordingly, Escobedo has not established the
court's decision to impose consecutive sentences exceeded the bounds of reason.
Escobedo alternatively contends the imposition of sentence of 210 years to life
constitutes cruel and unusual punishment. We are not persuaded by this contention
either.
" ' "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. [Citations.]" [Citation.] Cruel and unusual punishment is prohibited by the
Eighth Amendment to the United States Constitution and article I, section 17 of the
California Constitution. Punishment is cruel and unusual if it is so disproportionate to the
crime committed that it shocks the conscience and offends fundamental notions of human
dignity.' " (People v. Abundio (2013) 221 Cal.App.4th 1211, 1217-1218.)
" 'To determine whether a sentence is cruel or unusual under the California
Constitution as applied to a particular defendant, a reviewing court must examine the
circumstances of the offense, including 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 his or her age, prior criminality, and mental capabilities. [Citation.]
If the penalty imposed is "grossly disproportionate to the defendant's individual
culpability" [citation], so that the punishment " ' "shocks the conscience and offends
fundamental notions of human dignity" ' " [citation], the court must invalidate the
23 sentence as unconstitutional.' " (People v. Gonzales (2012) 54 Cal.4th 1234, 1300.) The
standard is the same under the federal constitution. (Ibid.)
Escobedo's sentence is the functional equivalent of a sentence of life without the
possibility of parole. (People v. Thomas (2012) 211 Cal.App.4th 987, 1016; People v.
Byrd (2001) 89 Cal.App.4th 1373, 1383.) "[I]mposition of a sentence of life without the
possibility of parole in an appropriate case does not constitute cruel or unusual
punishment under either our state Constitution [citation] or the federal constitution."
(People v. Byrd, supra, at p. 1383.) This is an appropriate case.
Escobedo repeatedly molested three children with whom he had both a familial
and caretaker relationship. The conduct occurred at multiple locations over a 14-year
period. It was blatantly sexual and included over-the-clothes touching, under-the-clothes
touching, and masturbation. All of the victims were vulnerable because of their youth
and Escobedo's position of trust and authority in their lives. All of the victims were
traumatized by the conduct as evidenced by their attempts to block their memories of it.
At least one of the victims was continuing to experience flashbacks at the time of trial.
In countering these circumstances, Escobedo emphasizes his lack of a prior
criminal history and his low score on the risk assessment. These two points are closely
connected as six of the 11 factors considered in the risk assessment involved Escobedo's
prior criminal history. Although these points are favorable to Escobedo, they do not
significantly diminish his culpability given his choice of victims. Their particular
vulnerability and corresponding reluctance to report his conduct delayed its detection and
24 his accountability for more than a decade. To accord him appreciable credit for not
having been caught sooner or more often would effectively reward him for targeting
young children, which we decline to do. Moreover, because Escobedo committed
multiple molestations against multiple victims over a 14-year time span, we cannot
conclude from his absence of a prior criminal history that his conduct was in any way out
of character or aberrational. Accordingly, Escobedo has not established a sentence of life
without the possibility of parole in this case shocks the conscience, offends fundamental
notions of human dignity or is grossly disproportionate to his individual culpability.
III
Laboratory Analysis and Drug Program Fees
As part of Escobedo's sentence, the court imposed laboratory analysis and drug
program fees. These fees only apply to defendants who are convicted of drug-related
offenses. (Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a).) Escobedo
contends we must reverse these fees because he was not convicted of a drug-related
offense. The People concede and we agree the court was not authorized to impose these
fees in this case. We will, therefore, modify the judgment to strike these fees. (§ 1260;
People v. Thomas (2012) 53 Cal.4th 771, 837 [an appellate court may modify the
judgment to correct an unauthorized sentence].)
25 DISPOSITION
The judgment is modified to strike the lab analysis and drug program fees. The
trial court is directed to amend the abstract of judgment accordingly and forward a
certified copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
MCINTYRE, J.