People v. Ross CA3

Filed 9/8/14 P. v. Ross CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C073401

Plaintiff and Respondent, (Super. Ct. No. 11F07663)

v.

DERK LESTER ROSS,

Defendant and Appellant.

Defendant Derk Lester Ross was charged with committing a lewd and lascivious act with an eight-year-old child, his girlfriend’s daughter. (Pen. Code, § 288, subd. (a)— count one),1 and five separate counts of committing an act of oral copulation or sexual penetration with the same child when she was between the ages of six and eight (§§ 288.7, subd. (b), 289—counts two through six). A jury found defendant guilty of all counts; the trial court sentenced him to state prison for the upper term of eight years on

1 Undesignated statutory references are to the Penal Code.

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count one and five consecutive terms of 15 years to life on counts two through six. Defendant appeals, claiming his aggregate sentence of 83 years to life is cruel and unusual punishment because it cannot possibly be served in his lifetime and is not denominated as life imprisonment without the possibility of parole (LWOP). We disagree and shall affirm the judgment.

The facts underlying defendant’s convictions are not relevant to the issue on appeal, and we shall omit them as a result. We also do not need to add any additional procedural facts to those described in this introduction.

DISCUSSION

Defendant argues that all year-to-life sentences that cannot possibly be completed during the inmate’s lifetime (de facto LWOP’s) are cruel and unusual punishment in violation of the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)2 “[A]lthough [defendant] has technically forfeited the issue on appeal because he did not raise the objection below (People v. DeJesus (1995) 38 Cal.App.4th 1, 27), we ‘shall reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.’ (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)” (People v. Russell (2010) 187 Cal.App.4th 981, 993.) We find defendant’s claim meritless, though we recognize that the sentence imposed is longer than his probable lifespan.3