People v. Torres CA2/1

Filed 5/30/14 P. v. Torres CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B249000

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA086731) v.

ROBERTO E. TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed. ______ Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Chung Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent. ______

A jury convicted Roberto E. Torres of six counts: (1) two counts of sexual intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a))1 (counts 1 and 2); (2) two counts of oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b) (counts 3 and 4); (3) one count of exhibiting harmful matter to a minor (§ 288.2) (count 5); and (4) one count of commission of a lewd act upon a child under 14 years of age (§ 288, subd. (a)) (count 6). Counts 1 through 4 and 5 involved Torres’s niece; count 6 involved Torres’s younger brother. The trial court sentenced Torres to a state prison term of 80 years to life, consisting of consecutive terms of 25 years to life prescribed by section 288.7, subdivision (a), for counts 1 and 2 and consecutive terms of 15 years to life prescribed by section 288.7, subdivision (b), for counts 3 and 4. The court imposed concurrent sentences of the two-year midterm for the section 288.2 violation in count 5 and of the six-year midterm for the section 288, subdivision (a), violation in count 6. Torres appealed, contending that his sentence constitutes cruel and unusual punishment under the state and federal constitutions. We disagree and thus affirm the judgment. DISCUSSION “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.]” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) “Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.]” (Id. at p. 494.) Against this backdrop, under the California Constitution, a sentence may violate the prohibition against cruel or unusual punishment only if it is so disproportionate to the crime for which it was imposed that it “shocks the conscience and offends fundamental