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People v. Baker

California Court of Appeals, Fourth District, First Division

February 22, 2018

THE PEOPLE, Plaintiff and Respondent,
JEFFREY A. BAKER, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of San Diego County No. SCE352110, John M. Thompson, Judge. Affirmed.

          David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Scott Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

          DATO, J.

         A jury convicted Jeffrey A. Baker of one count of oral copulation of his six-year-old niece in violation of Penal Code section 288.7, subdivision (b) and two counts of lewd acts in violation of Penal Code section 288, subdivision (a).[1] At sentencing, the trial court imposed the mandatory 15-years-to-life prison sentence on the oral copulation count but expressed its view that the sentence was "absolutely disproportionate to the crime that was committed" and encouraged Baker to appeal on Eighth Amendment grounds. (U.S. Const., 8th Amend.) Baker argues that the trial court misunderstood its sentencing authority to not impose an unconstitutional sentence. He further contends that the indeterminate sentence imposed was cruel and/or unusual in violation of the federal and state constitutions and that his counsel's failure to object on this basis amounted to ineffective assistance of counsel.

         As the People concede, the trial court had the power to decide whether the mandatory prison term in this case was an unconstitutional sentence. But even if the trial court misunderstood the scope of its authority, a remand for resentencing is unnecessary because the indeterminate 15-years-to-life sentence was not cruel and/or unusual as a matter of law. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) For similar reasons Baker did not receive ineffective assistance of counsel. Accordingly, we affirm.


         In October 2013, Mary D. moved into her parents' single-family home in Lemon Grove with her four children, including six-year-old A.D. Space was tight downstairs, so A.D. slept on a couch upstairs, where Mary's sister Judy lived. Mary's 50-year-old brother, defendant Baker, visited in December from New Hampshire and met the children for the first time. The visit was positive.

         Baker returned a few months later in March 2014 to take care of Judy's dogs while she was on vacation. Baker slept in Judy's bedroom, and A.D. continued to sleep on the couch. On the evening of March 8, Mary went to the airport to pick up her son, leaving A.D. upstairs with Baker. The next morning, A.D. approached Mary in the kitchen and told her Baker had licked her "down there, " pointing to her crotch. Mary took A.D. to a bedroom and asked her to tell her what happened. A.D. told her that Baker had brought her into bed with him, rubbed her stomach, pulled down her underwear, licked her, and asked her if it felt good. She said "No, it's gross." Baker then kissed A.D. on the mouth, and A.D. pulled the blanket over her face to make him stop. Baker stopped.

         Mary called the sheriff's department and made a report. She then took A.D. to the hospital. Hospital staff collected evidentiary swabs and clothing from A.D. and put her through a full Sexual Assault Response Team (SART) exam that indicated "no physical findings." Baker met with detectives and provided an oral swab.

         A.D. underwent a forensic interview with social worker Sheri Rouse on March 10. She said she was sleeping by her "Uncle Jeff" in bed. He first rubbed her stomach "nice and softly, " which felt good. Then he pulled down her underwear and licked her "on the middle" one time. A.D. felt his tongue and saw it. Baker asked if it felt good; she said "No, it feels gross, " and he stopped. He then kissed her "in the middle of [her] mouth" with a "lick kiss." She covered her mouth so he couldn't "do a lick kiss anymore." Baker told her "sorry, " and they went to sleep. A.D. told Rouse she kept thinking about what happened and felt "disgusting." Her mom had told her she could not go near Baker, which made her sad. She wanted to ask Uncle Jeff not to lick her anymore because "[t]hat would just be nice and not hurt his feelings."

         Subsequent analysis revealed male human saliva in the crotch of A.D.'s underwear, but not enough DNA for further analysis. Human saliva was found on A.D.'s external genital swabs. Further analysis showed there was a mixture of DNA on that swab. The major profile was consistent with A.D.'s DNA, and the minor profile was consistent with Baker's DNA. The criminalist calculated a random match probability to estimate the rarity of the minor profile. There was a one in 46-trillion chance that a random person in the population would contribute to the minor DNA profile, indicating that there was likely only one person in the population with that DNA. Perioral swabs taken near A.D.'s mouth contained male DNA, but not enough for further analysis.

         Baker was charged by information of oral copulation on a child under the age of 10 in violation of section 288.7, subdivision (b) (count 1).[2] He was also charged with two counts of lewd acts upon a child under the age of 14 (hand to vagina and kissing) in violation of section 288, subdivision (a) (counts 2 and 3).[3] Following trial, the jury convicted him on all three counts. Before sentencing, the probation department submitted a report stating Baker was 53 years old with an "insignificant record of prior criminal conduct." Baker committed burglary in 1981 as a juvenile and misdemeanor theft in 1995, for which he successfully completed probation. He declined to participate in a presentence interview without his attorney, share his personal history, or participate in a COMPAS assessment (Correctional Offender Management Profiling for Alternative Sanctions). The probation officer asked if Baker had anything else to say, and he replied, "15 years is 15 years, my friend."

         The probation report used the STATIC-99R risk assessment to determine his risk for sexual offense recidivism. His score put him in the "Low Risk Category" with a 1.9 percent chance of recidivism within five years of release from custody. Even so, the report recommended sentencing Baker to a term of 15 years to life on the section 288.7, subdivision (b) charge due to the "egregious" nature of the crime and his lack of cooperation in the presentence interview. It recommended the middle term of six years for the two section 288, subdivision (a) counts.

         Given his conviction under section 288.7, Baker was statutorily ineligible for probation. (See § 1203.065, subd. (a).) Nevertheless, the parties and the court mistakenly believed Baker could either receive probation or be sentenced for count 1 to the mandatory term under section 288.7, subdivision (b) of 15 years to life. Thus, at sentencing Baker's counsel urged the court to grant probation based on Baker's low risk for recidivism. With respect to his lack of cooperation, his counsel explained that Baker felt his prior conversations with law enforcement and family had been spun in a negative way. Although acknowledging that A.D. did not appear to be "scarred for life, " the prosecutor faulted Baker for not admitting the crime. She urged the mandatory prison term, arguing "this type of case and this particular incident is some of the worst type of conduct there is on a child." Defense counsel challenged whether this case was "one of the worst, " and the trial court remarked, "I'm not buying into that either."

         The trial court denied probation and imposed the mandatory 15-years-to-life term on count 1. Concurrent six year terms were imposed on counts 2 and 3. In doing so, however, the court expressed great discomfort with the sentence and urged Baker to appeal on Eighth Amendment grounds:

         "I am going to impose the 15-to-life commit. Before I do, I'm going to put a few things on the record. This, to me, is a glaring example of what happens when you take discretion away from a sentencing judge. I have no option but to impose this sentence. I cannot be called upon to evaluate the conduct of the defendant, the history of the defendant once I conclude it is a prison case. It is beyond comprehension for me, and probably for every one of these guys on the wall who did this job before me over the last 100 years, to ever contemplate a situation wherein we are forced to impose a sentence that is absolutely disproportionate to the crime that was committed in this case. That being said, the court will say for the record that the only reason this sentence is being imposed is because it is mandated by this particular code section. I certainly would invite Mr. Baker to appeal this decision, to assert at that point any Eighth Amendment rights he feels that he has. And hopefully someone in the position to review the case, based upon that, may come to a different conclusion. But for me to take that step at this particular level would be, in essence, to disregard the law.

         "I have concluded, and I did at the end of this case, that this was a prison case. It was a prison case from the beginning. Was it a life case? No. Not now, not a thousand lifetimes from now. I've been doing this job a long time. I have seen life top cases. I have sent people to prison for life. I have sentenced people to death. And this particular conduct, in this particular crime, absolutely, without question, does not justify the imposition of this sentence.

         "I've reviewed the criteria set forth in [California Rules of Court, rule 4.414], find the defendant is not a suitable candidate for probation, the ends of justice would not be met. It will be the order of the court that the defendant be committed to the Department of Corrections for the term of 15 years to life as mandated by this code section."


         On appeal, Baker challenges his indeterminate sentence of 15 years to life for violating section 288.7, subdivision (b). He claims the punishment is cruel and/or unusual in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Baker argues the trial court failed to understand its sentencing authority to avoid imposition of an unconstitutional sentence. He asks us to remand the case for resentencing or, in the alternative, decide as a matter of law that his sentence for count 1 violates the federal or state constitutions. Although his trial counsel did not object to the sentence on these grounds, he claims no objection was necessary or that he suffered ineffective assistance of counsel.

         The record before us is, to be sure, unusual. A thoughtful trial judge, moved by what he perceived to be significant unfairness given the particular facts of the case, expressed his conclusions to that effect in no uncertain terms. But the court seems to have misunderstood the scope of its role. Where a trial court concludes that a mandatory minimum sentence is grossly disproportionate to the circumstances of the crime, it has the constitutional authority-indeed, the constitutional duty-not to impose an unconstitutional sentence. The responsibility to declare constitutional limitations on the power of coordinate branches of government belongs to the judicial branch in its entirety and not merely to appellate courts. To enforce the constitution is not to "disregard the law."

         That said, the power to declare a legislatively prescribed punishment unconstitutional should be rarely exercised, and not merely because a judge-trial or appellate-believes there has been a harsh result. A punishment can be declared unconstitutionally disproportionate only after a careful review of both the facts of the case and the applicable appellate precedent. Here, while an indeterminate term of life imprisonment for a sexual assault on a six-year-old is a severe punishment that reasonable minds could well believe is excessive, applying the analysis set forth in the relevant case law makes clear it is not so disproportionate as to exceed the very high constitutional threshold.

         A. May the Issue Be Raised?

         Before turning to Baker's constitutional challenge, we must decide whether the issue is preserved on appeal. Although his trial counsel did not object to his sentence as cruel and/or unusual, Baker argues an objection was unnecessary given the court's ruling. In the alternative, he claims he received ineffective assistance when his counsel failed to object.

         As a general rule, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) A claim that a sentence is cruel or unusual requires a "fact specific" inquiry and is forfeited if not raised below. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Speight (2014) 227 Cal.App.4th 1229, 1248.) Although the trial court identified a potential Eighth Amendment issue, the onus was on Baker's counsel to object on that basis and on state constitutional grounds. Baker has thus forfeited his claim, but we address the merits "to show counsel was not constitutionally ineffective by failing to make a futile or meritless objection." (People v. Reyes (2016) 246 Cal.App.4th 62, 86 (Reyes).)

         B. Scope of the Trial Court's Authority and the Necessity for Remand

         Baker argues that the trial court misunderstood the scope of its sentencing authority not to impose a sentence that amounted to cruel and/or unusual punishment. He seeks remand for the trial court to properly exercise its authority and consider his constitutional claims. In response, the People appropriately concede that the trial court did not appreciate the scope of its sentencing authority. (See People v. Felix (2002) 108 Cal.App.4th 994, 999 [trial court has authority to intervene if mandatory punishment is unconstitutional]; People v. Mora (1995) 39 Cal.App.4th 607, 615 ["If the punishment mandated by law... is so grossly disproportionate to a particular defendant's individual culpability to constitute cruel or unusual punishment..., a court has authority to prevent the imposition of unconstitutional punishment."].) Nevertheless, they contend remand is unnecessary because whether a sentence amounted to cruel or unusual punishment is a question of law that we may decide ourselves on de novo review.

         We agree that under the circumstances of this case, a remand is unnecessary. In People v. Hamlin (2009) 170 Cal.App.4th 1412 (Hamlin), a defendant claimed his life sentence for torture was cruel or unusual. (Id. at p. 1474.) He sought remand for a new sentencing hearing, arguing the trial ...

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