California Court of Appeals, Fourth District, Third Division
Pub. order 3/4/13; reposted 7/18/13 to include mod. filed 3/4/13 prior to pub. order (see end of opn.)
Appeal from a judgment of the Superior Court of Orange County No. 08CF2172, James Edward Rogan, Judge.
Kurt David Hermansen, 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, Barry Carlton, Garrett Beaumont and Sean Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
Javier Enrique Perez was convicted of one count of sexual penetration with a foreign object on nine-year-old Mario, and one count of committing a forcible lewd act on eight-year-old Andy. In plain English, he raped Mario with a toy light saber, broken at the tip, and forced Andy into participating in that rape. For these crimes he was sentenced to two consecutive terms of 15 years to life, for a total of 30 years to life. Perez was 16 years old when he committed the crimes. He presents four discrete challenges to the judgment.
(1) He claims there was insufficient evidence of force or coercion against the eight-year old.
(2) He claims his sentence is cruel and unusual as shown by recent federal and state high court case law, specifically Miller v. Alabama (2012) ___ U.S. ___ 132 S.Ct. 2455; Graham v. Florida (2010) ___ U.S. ___, 130 S.Ct. 2011; and People v. Caballero (2012) 55 Cal.4th 262.
(3) He claims that under Miller, Graham and Caballero, California’s one-strike law is unconstitutional as applied to persons under age 18, because it left the trial court without any discretion to impose something less than 30 years to life.
(4) He claims that under older state high court case law, specifically People v. Dillon (1983) 34 Cal.3d 441 and In re Lynch (1972) 8 Cal.3d 410, his sentence is grossly disproportionate to his offenses.
We affirm. In brief:
(1) There was substantial evidence Perez used both force and intimidation against Andy, including forcibly grabbing him and pulling his pants down.
(2) Miller, Graham and Caballero do not apply to sentences which leave the possibility of a substantial life expectancy after prison, i.e., are not “de facto” LWOPs or “functional” LWOPs. Perez will be eligible for parole when he is 47.
(3) There is no rule of constitutional jurisprudence that requires discretion to reduce penalties when minors are sentenced for adult crimes to periods which still leave them a substantial life expectancy after release from prison.
(4) The punishment here fits the crimes, and the criminal. Perez showed extreme callousness. He already had a substantial criminal record before the assault on Mario, and when first interviewed by police, Perez expressed no remorse, but asserted Mario “liked it.”
The facts do not warrant extended recounting, though we must reiterate the basic principle of appellate review that all conflicts in the evidence and reasonable inferences from it are drawn in favor of that version of events which most supports the judgment. (People v. Jones (1990) 51 Cal.3d 294, 314 [“On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”]; see also People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler (1973) 9 Cal.3d 156, 160.)
Mario’s mother worked as a janitor in Santa Ana, and sometime before 5 p.m. on July 16, 2008, dropped him off at the house of his friend, Andy. Andy’s brother Oscar, age 22, was supposed to be ...