People v. Everett CA3

Filed 5/27/15 P. v. Everett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, C076770

Plaintiff and Respondent, (Super. Ct. No. P13CRF0231)

v.

DAVID CHARLES EVERETT,

Defendant and Appellant.

Defendant David Charles Everett was charged and convicted of 12 sex offenses against a child under the age of 10, his girlfriend’s niece. The trial court sentenced him to an aggregate term of 210 years to life in state prison. On appeal, defendant contends the sentence constitutes cruel and unusual punishment under the state and federal Constitutions because it cannot possibly be completed in his lifetime. We disagree and affirm the judgment.

1

FACTUAL AND PROCEDURAL BACKGROUND Because of the nature of the claim on appeal, we need not recite in detail the substantive facts underlying defendant’s convictions. Defendant lived, for a time, with his girlfriend and members of her extended family, including her niece, Jane Doe (the victim). Over a period of several months, while he lived in the same house as the victim and after he moved out of the house, defendant sexually molested the victim by sodomizing her, orally copulating her, having her orally copulate him, penetrating her vagina with his finger, attempting to penetrate her vagina with his penis, having her masturbate him, and ejaculating in her anus and mouth. Defendant committed these acts when he and the victim were alone and when other family members were home. He sexually molested her at different times and in multiple rooms and locations throughout the house. He did so whether she protested or not. Defendant told the victim not to tell anyone because “he thought he was going to get in big, big trouble.” Although the victim was initially afraid to report the molestation because she did not want defendant to get angry with her or hurt her, she eventually told a sibling, who then reported it to their mother. Defendant was charged by information with five counts of intercourse or sodomy with a child under the age of 10 (Pen. Code, § 288.7, subd. (a) — counts 1, 3, 4, 5, and 9), five counts of oral copulation or penetration with a child under the age of 10 (Pen. Code, § 288.7, subd. (b) — counts 2, 6, 7, 8, and 10), and two counts of lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a) — counts 11 and 12). He was tried by a jury and found guilty as charged. The trial court sentenced defendant to an aggregate term of 210 years to life comprised as follows: a determinate term of eight years for count 11, plus a consecutive determinate term of two years for count 12, consecutive indeterminate terms of 25 years