California Court of Appeal May 1, 2014 No. D062918Unpublished
Filed 5/1/14 P. v. Escobedo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
Defendant and Appellant.
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
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
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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
A
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,
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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."
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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
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opportunity for parole in his lifetime. Accordingly, Escobedo has not established the
court's decision to impose consecutive sentences exceeded the bounds of reason.
C
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
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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
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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