THE PEOPLE v. JOSE ALFONSORUIZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

introduction

Appellant Jose A. Alfonsoruiz appeals from the judgment entered following his conviction by jury of three counts of aggravated sexual assault of a child (Pen.Code, § 269, subd. (a)(1),¹ counts 1, 3 & 4), forcible lewd act upon a child (§ 288, subd. (b)(1), count 2), three counts of forcible rape (§ 261, subd. (a)(2), counts 5, 7 & 9), three counts of forcible oral copulation (§ 288a, subd. (c)(2), counts 6, 8 & 10), and the lesser included offense of lewd act upon a child 14 to 15 years of age (§ 288, subd. (c)(1), count 12).²

Appellant was sentenced to state prison for three indeterminate terms of 15 years to life (counts 1, 3 & 4) plus an aggregate determinate term of 59 years (counts 2, 5–10 & 12).   He appeals, contending:  (1) there was insufficient evidence to establish the victim was under 14 years of age when the conduct alleged in counts 1 through 4 occurred;  (2) the trial court erred by instructing the jury using CALCRIM No. 207, which purportedly informed the jury it did not have to find and agree upon a specific date for the commission of counts 1 through 4, and allowed the jury to convict him on those counts even if it believed the conduct at issue occurred when the victim was 14 years old;  (3) the trial court erred by failing to instruct the jury using CALCRIM No. 224 regarding the use of circumstantial evidence;  and (4) his sentence constitutes cruel and unusual punishment.   We find no merit in any of appellant's contentions, and affirm the judgment.

factual background

I. The Prosecution Case

L. was born in April 1989.   When she was about six years old, her mother, Maria S., married appellant.   The family, which included L.'s younger sister, R., lived in Mexico.   When L. was seven or eight years old, appellant moved to Los Angeles alone.   Maria S. followed about a year later, leaving L. and R. in Mexico with relatives.   In June 2002, when L. was 13 years old, she and R. moved to Los Angeles and began living with appellant.   However, at that time Maria S. had returned to Mexico and did not return to the United States with her daughters until December 2002.   Appellant, L., and R. slept in one bedroom, with the girls sharing a king-sized bed and appellant sleeping on the floor.

The third night after the girls arrived in Los Angeles, appellant began touching L.'s vagina under her clothes as she slept.   She awoke, pushed his hand away, and told him “no.”   He covered her mouth with his hand, forcibly moved her out of the bed and onto the floor, and removed her panties.   He put on a condom, then penetrated her vagina with his penis until he ejaculated.   She attempted to push him off of her, but he held her arms down.   He said to her that if she told anyone, he would leave her alone in Los Angeles and take her sister back to Mexico.   Four days later, again as she was sleeping, he began fondling her breasts and vagina under her clothing.   He did not stop even though she began crying and tried to resist.   He repeatedly told her that he would leave her and take her sister to Mexico.

Prior to the time that Maria S. joined the family in Los Angeles in December 2002, appellant forced L. to perform oral sex three or four times (when she was menstruating and he did not want to have intercourse), and forced her to have intercourse five or six times.   Each time, he threatened to leave her alone in Los Angeles if she told anyone.   Appellant continued to force L. to have intercourse with him at night, even after Maria S. joined them in Los Angeles.   On three or four occasions, appellant raped L. as her mother and sister slept in the bed next to them.   L. did not make any noise or attempt to resist him out of fear that he would carry through on his threat to leave her alone in Los Angeles.

The family moved to a two-bedroom house in April 2003, when L. was 14 years old.   L. shared a room with R., and Maria S. and appellant slept in the other bedroom.   Three or four times each week, appellant would wake L. up and lead her into the bathroom, where he would suck on her breasts and have intercourse with her.

During the summer of 2003, L. stayed home while appellant and Maria S. went to work and R. attended summer school.   On several occasions, appellant came home early and forced L. to have intercourse with him.   Three or four times, he forced her to orally copulate him.   L. stated that during June, July, and August of 2003, appellant forced her to have intercourse at least one time during each of those months, and forced her to perform oral sex at least one time during each of those months.

During the 2003–2004 school year, when L. was either 14 or 15, appellant found a photograph of L. with her boyfriend.   Appellant had prohibited L. from having a boyfriend.   Appellant struck her three times with a belt on her leg and back, leaving a bruise on her leg that lasted for months.   Thereafter, sometime during 2003, L. told appellant that she wanted to have a boyfriend, that she did not want him sexually abusing her anymore, and she wanted to be a normal person.   Appellant got angry and slapped her face, then took a gun from the closet and pointed it at himself, saying he was not going to let her leave him.   He then pointed the gun at her head for a few minutes, repeating that she was not going to leave him.   L. believed that appellant was going to shoot her.

The family moved to another house sometime around April the following year, next door to the shop where appellant worked.   The house had one bedroom, which was divided into two sections.   R. slept on one side in her own bed, and appellant, Maria S., and L. slept in a king-sized bed on the other side.   The sexual assaults continued, three to four times per week, when L. was 16, 17, and 18 years old.   Appellant forced her to have intercourse and perform oral sex, both during the day and at night, sometimes in the shop he owned next door.   Appellant usually used a condom when he had intercourse with her, but did not do so every time.   L. had stopped trying to physically resist because it seemed to her that she could do nothing to stop him.   She estimated that he had forced her to have sex 100 or 200 times.

In August 2008, L. left the family home and moved in with her boyfriend.   Appellant telephoned her and asked her to return home.   He convinced her to meet him in a park, where he gave her $200, offered to give her a car, and told her everything would change if she returned home, but she refused.   He continued to call her several times before she cancelled her mobile phone service.

R. said she is two years younger than L. She recalled that she and L. moved to Los Angeles on June 24 or June 25, 2002, when R. was 11 years old.   L. moved out of the family home sometime before September 2008.   R. noticed when L. moved out that appellant started having trouble sleeping.   Appellant said he wanted L. to come back home, and worried that her boyfriend was not good to her.   He also said he wanted to hurt L.'s boyfriend.   R. said appellant never touched her in a sexual manner, and she never saw appellant touch L. in a sexual way.

On September 21, 2008, R. overheard appellant and Maria S. arguing and yelling, and heard L.'s name mentioned.   Appellant pushed Maria S. down onto a couch, and when R. tried to intervene, he pushed her down as well.   R. and Maria S. left the house, and when they returned, the locks had been changed.   Appellant refused to let them into the house.

Maria S. testified that L. and R. came to Los Angeles in 2001, and she joined them about five months later.   She believed L. was 13 when she came to Los Angeles.   Maria S. said that after she moved to Los Angeles in 2001, she and appellant had sex very infrequently, perhaps once per month.   Appellant was the one who imposed discipline on the girls, set the rules for the household, earned the money to support the family, and was generally the one in charge.   Appellant did not allow Maria S. to show affection to L. or set any rules for her behavior.   Maria S. said L. was 18 years old when L. moved out of the house.   Maria S. became suspicious about appellant's relationship with L. after she moved out because appellant would not let Maria S. talk to L., but he talked to L. frequently.   About one month after L. moved out, appellant told Maria S. that L. had moved out because she wanted to touch appellant in a sexual way, and he would not allow her to do so.   When L. moved out, appellant began acting aggressively and yelled at and hit Maria S. and R. He had difficulty sleeping, and began using sleeping pills.

On September 21, 2008, Maria S. and appellant argued about L. He was insistent that he wanted L. to return home, and told Maria S. he had hired some men to go and hurt L. Maria S. said she would go to the police if he did that.   He got angry and pushed her and R., then forced them to leave the house.   When they returned later that day, they were unable to get into the house because the locks had been changed.   Maria S. then went to talk to L. to tell her what had happened, and to ask her about her relationship with appellant.   L. was very frightened, but disclosed the sexual abuse that she had suffered.   They went to the police and reported the abuse.

Appellant was arrested during the early morning of September 22, 2008.   The arresting officer found a loaded, blue steel revolver, and a semi-automatic BB gun in appellant's business, which was next door to the family residence.

Los Angeles Police Officer Sandra Lopez conducted two interviews with appellant after he had waived his constitutional rights.   During the first interview, appellant told Lopez that L. and R. came to live with him in 2001 or 2002.   He denied having a sexual relationship with L. During the second interview, conducted several hours later, he admitted having sexual intercourse and oral sex with L. after she turned 18, but said it was consensual.   He later said it occurred when L. was 19 years old, a few days before she moved out.   Later, he said that L. had begun making sexual advances toward him when she was 14 or 15 years old.   He said he had fondled her breasts and she had touched his penis around that time.   Appellant said L. had threatened to leave home when she was 14 or 15 years old, and he had pointed the BB gun at his own head and threatened to shoot himself if she left.

After interviewing appellant, Lopez gave him the opportunity to write a letter to L. Lopez read the letter to the jury.   He asked for her forgiveness for hurting her, and for the “mistake that I committed against you.”   He said what he felt for her was “clean love from a father to a daughter.”   He anticipated that he would lose his business and his home, but said he deserved it.

Two additional letters were read to the jury.   After appellant was arrested, Maria S. had received two letters written in appellant's handwriting and addressed to L. After reading them, she decided not to give them to L. In the first letter, appellant told L. that the authorities were perhaps going to intimidate her and put her in jail for lying.   He instructed her to “deny explicitly that we had anything to do with each other before [you were] 18 years old, that everything that happened was after you were 18 years old, and that you agreed to it.”   He told her to say she had been angry because she found some photos in which he was hugging someone else, and in revenge, she had made false accusations against him.   He instructed her on how to convincingly retract her previous testimony.   In the second letter, appellant repeated his plea that L. testify that she had consensual sex with him after she turned 18, and had lied before out of jealousy.   He said he was suffering in jail, and begged her to help him.

II. The Defense Case

Maria Moya testified that approximately six or seven years before, appellant had rented a house from her for two or three years.   Initially, appellant and his wife lived there, and later two daughters joined them.   She recalled that the mother lived there the whole time.   The prosecutor asked if she was certain the mother was there from the time they came in 2002, drawing an objection from defense counsel that it assumed facts not in evidence as to the year 2002.   The prosecutor rephrased the question, omitting reference to a year.   The prosecutor then asked, “At the time, the girls were in their teenage years;  correct?”   Moya answered, “Yes.” She did not observe either girl acting uncomfortably around appellant.

discussion

I.  Sufficiency of the Evidence to Establish L.'s Age with Respect to Counts One Through Four

Appellant contends there was insufficient evidence to support his convictions for aggravated sexual assault of a child (counts 1, 3 & 4) and forcible lewd act upon a child (count 2).   He argues there was no solid, credible evidence that these crimes occurred before L. turned 14 years of age, and therefore his conviction of those crimes violated his right to due process of law under the Fourteenth Amendment to the United States Constitution.   We disagree.

“ ‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’  [Citations.]  We apply an identical standard under the California Constitution.  [Citation.]  ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’   [Citation.]  The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence.  [Citation.]”  (People v. Young (2005) 34 Cal.4th 1149, 1175.)

“We therefore review the record in the light most favorable to the prosecution to determine whether the challenged convictions are supported by substantial evidence, meaning ‘evidence which is reasonable, credible, and of solid value.’  (People v. Johnson (1980) 26 Cal.3d 557, 578.)   In contrast, ‘mere speculation cannot support a conviction.  [Citations.]’  (People v. Marshall (1997) 15 Cal.4th 1, 35.)  ‘In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts.  [Citation.]  Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.  [Citation.]  Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.  [Citation.]’  (People v. Young, supra, 34 Cal.4th at p. 1181.)”  (People v. Mejia (2007) 155 Cal.App.4th 86, 93 (Mejia ).)

Appellant was charged and convicted of aggravated sexual assault of a child by rape (§ 269, subd. (a)(1)) on or between June 1, 2002, and June 30, 2002 (count 1), on or between June 1, 2002, and April 11, 2003 (count 3), and on or about June 1, 2002 (count 4).   He was also charged and convicted of forcible lewd act upon a child (§ 288, subd. (b)(1)) on or between June 1, 2002, and June 30, 2002 (count 2).   Conviction of these crimes requires proof that the act was committed upon a child under 14 years of age.   We must therefore determine whether the evidence at trial supported a reasonable inference that L. was under 14 years of age when appellant committed the acts described in counts 1 through 4.

Construing the testimony in the light most favorable to the People's case, the evidence showed that L. was born in April 1989.  (She therefore turned 14 in April 2003.)   L. testified that in June 2002, when she was 13 years old, she and R. moved to Los Angeles and began living with appellant.³  L. was asked on redirect:  “Are you certain that is the age you were [when you came to the United States], or are you estimating?”   She unequivocally replied, “No, I am sure.”   L. testified that the third night after she arrived in Los Angeles, appellant forced her to have sexual intercourse and said if she told anyone he would leave her alone in Los Angeles and take her sister back to Mexico.   Four days later, he fondled her breasts and vagina, repeating his threat to leave her alone in Los Angeles.⁴  L.'s mother joined the family in Los Angeles in December 2002.   L. testified that prior to that time, appellant forced her to orally copulate him three or four times, and forced her to have intercourse five or six times.

The foregoing testimony is legally sufficient to sustain the jury's implied finding that L. was 13 years old when the crimes alleged in counts 1 through 4 occurred.  “In cases of sex crimes committed on children, the age of the child may be established by the child's own testimony.”  (People v. Crownover (1939) 34 Cal.App.2d 7, 9 (Crownover ).)

Appellant states that “[i]n order to clarify any confusion, L. candidly testified she was ‘not sure’ whether she was 13 years old when she moved to the United States.”   Such testimony does not appear on the page of the reporter's transcript cited by appellant, nor anywhere else in the record.   In fact, she stated she was certain she was 13 years old when she came to Los Angeles.

Appellant also points to other testimony given by L. and others that purportedly created confusion and uncertainty as to L.'s age when the abuse occurred.⁵  For example, when she was first interviewed by police in 2008, L. said that when she was eight years old, her mother left her in Mexico and lived in the United States with appellant for eight years before returning to Mexico and later sending L. to Los Angeles.   At trial, she testified her mother left for about five years.   However, she acknowledged she did not remember very well the time periods relating to these events.   L. could not recall if certain events occurred when she was 14 rather than 15 years old.   Maria S. testified the girls came to Los Angeles in 2001 (rather than 2002), when L. was 13 years old.   She said L. was 18 when she moved out.   According to L., she moved out in August 2008, but she did not know if she was 18 or 19 at the time.   In addition, appellant asserts that Moya, from whom the family rented a house when L. and R. first came to Los Angeles, testified that L. moved there in 2002 when she was 14 years old.   Moya gave no such testimony.

Appellant asserts that L.'s testimony concerning her age when specific events occurred was so self-contradictory that it cannot be deemed sufficient evidence under the federal Constitution's due process standard.   Reviewing her testimony in context and applying the proper deferential standard of review, we find the contradictions in her testimony at most raised a credibility issue for the jury to resolve.  “Consistent with federal due process concerns, our Supreme Court has repeatedly and consistently explained:  ‘ “ ‘Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category.  [Citation.]  To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.   [Citations.]  Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.   [Citation.]’․”  [Citations.]' ”  (Mejia, supra, 155 Cal.App.4th at p. 98.)

We paraphrase from the ruling in Crownover, which is equally applicable here:  “[I]t is well settled that the general rule governing reviewing courts in dealing with appeals involving a conflict of testimony applies with the same force to cases where the conflict arises from the testimony of one witness as it does to cases where the conflict arises from the testimony of witnesses on opposing sides.  [Citations.]  Therefore, since the members of the jury in the present case, in the exercise of their province as sole and exclusive judges of the testimony, and of the weight to be given thereto, accepted as true and correct [L.'s] previous positive statement that [s]he was then thirteen years old, their decision in the matter is controlling on appeal.”  (Crownover, supra, 34 Cal.App.2d at p. 9.) “Accordingly, we find the contradictions in [L.' s] testimony did not render it impossible to believe or obviously false, but merely presented the jury with a credibility determination that is not reviewable on appeal.  [Citations.]”  (Mejia, supra, 155 Cal.App.4th at p. 99.)

Indeed, while L. was uncertain of her age or the exact time period involved with regard to some events, her testimony was quite specific with regard to the conduct charged in counts 1 through 4. She said she was 13 years old when she moved in with appellant in June 2002, and that he raped her for the first time three days after she arrived.   L. testified that between then and the time her mother joined the family in Los Angeles in December 2002, appellant forced her to orally copulate him three or four times, and forced her to have intercourse five or six times.   This testimony supports appellant's convictions for committing one count of rape during June 2002 (count 1), another count of rape between June 1, 2002, and April 11, 2003 (the day before L.'s 14th birthday) (count 3), a third count of rape on or about June 1, 2002 (count 4), and a forcible lewd act during June 2002 (count 2).

In People v. Jones (1990) 51 Cal.3d 294 (Jones ), the Supreme Court held that a child victim of molestation must describe the general time period in which the acts occurred to assure that the acts were committed within the applicable limitation period.  “The victim ․ must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy).   Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’).   Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period.   Additional details regarding the time, place, or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction.”  (Id. at p. 316.)   The evidence here was sufficient to demonstrate the number and kind of acts committed, as well as the general time period (June 2002 until December 2002), during which L. was 13 years old.

II. Instructional Error in Giving CALCRIM No. 207

Relying upon his argument that there was contradictory evidence regarding L.'s age when the incidents charged in counts 1 through 4 occurred, appellant further argues that he was denied due process because the trial court gave conflicting instructions about whether the jurors were required to find and agree upon the date on which the offenses charged in counts 1 through 4 occurred.

The trial court instructed the jury using CALCRIM No. 207, as follows:  “It is alleged that the crimes occurred on or about specific dates.   The People are not required to prove that the crime took place exactly on that day, but only that it happened reasonably close to that day.”   The trial court also gave CALCRIM No. 1123, which stated that in order to prove appellant guilty of counts 1, 3, and 4, the People had to prove that “when the defendant acted, [L.] was under the age of 14 years.”   Similarly, the trial court instructed the jury pursuant to CALCRIM No. 1111 that in order to prove appellant guilty of count 2, the People had to prove that L. “was under the age of 14 years at the time of the act.”

Appellant argues that CALCRIM No. 207 directly contradicted the other two instructions' requirements that in order to find appellant guilty, the jury had to find that the crimes alleged in counts 1 through 4 occurred between certain dates, i.e., June 2002 and April 2003.   He contends that CALCRIM No. 207 “informed the jury it did not have to find any specific date and allowed them to convict appellant if it believed the conflicting evidence at trial and [sic ] occurred when 14 years or older.”   He argues this instruction “permitted the jury to believe L. about her date of birth but conclude that L. was mistaken about the dates wherein counts 1–4 occurred,” and relieved the jury of the obligation of deciding what evidence was correct about L.'s age.   He contends the jury should have been told that CALCRIM No. 207 did not apply to counts 1 through 4. We disagree.

The People contend that appellant forfeited this contention by failing to request that the trial court clarify or modify CALCRIM No. 207 or state that it did not apply to counts 1 through 4. “Generally, ‘ “[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” ’  [Citations.]”  (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego ).)   Appellant was thus obligated to request modification or clarification, and having failed to do so, he forfeited the contention he now asserts on appeal.   We therefore review the alleged instructional error only to determine whether appellant's substantial rights were affected (§ 1259), i.e., whether the giving of CALCRIM No. 207 resulted in a miscarriage of justice.   We conclude that it is not reasonably probable appellant would have obtained a more favorable result had the instruction not been given or had it been modified.

“ ‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.   [Citations.]  “[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.”  [Citation.]  “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”  [Citation.]’  (People v. Burgener (1986) 41 Cal.3d 505, 538–539.)”  (People v. Crandell (1988) 46 Cal.3d 833, 874, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364–365.)   In the present case, viewing the charge as a whole, there is no reasonable likelihood the jury misconstrued CALCRIM No. 207 to convict appellant of counts 1 through 4 based on conduct occurring after L.'s 14th birthday.   As noted, the instructions informed the jury that the prosecution was required to prove L. was “under the age of 14 years” at the time of the acts charged in those counts.  (CALCRIM Nos. 1111 & 1123.)   No reasonable juror would have concluded that acts occurring “reasonably close to” but after L.'s 14th birthday would suffice to convict appellant of counts 1 through 4. Rather, as applied to counts 1 through 4, in light of the instructions as a whole, the jury would have concluded that the conduct charged had to have occurred reasonably close to but not precisely within the time period between June 1, 2002, and June 30, 2002 (counts 1 & 2);  within the time period between June 1, 2002, and April 11, 2003, but not after the latter date (count 3);  and reasonably close to but not precisely on the date of June 1, 2002 (count 4).

Appellant also points out that the Use Note for CALCRIM No. 207 states:  “ ‘This instruction should not be given:  (1) when the evidence demonstrates that the offense was committed at a specific time and place and the defendant has presented a defense of alibi or lack of opportunity;  and (2) when two similar offenses are charged in separate counts.’ ”   Appellant argues that “[t]he use notes reflect the fact that it has been the law since 1906 that when the prosecution evidence establishes that an offense occurred on a specific date, and the defendant presents an alibi defense for that date, CALCRIM No. 207 should not be given.  [Citations.]”  Appellant cites People v. Barney (1983) 143 Cal.App.3d 490, 497 (Barney ), in which a child victim testified a lewd act occurred on a specific weekend, and defendant provided evidence of lack of opportunity to commit the act.   The appellate court held that it was error for the trial court to give CALJIC No. 4.71, on the same subject as CALCRIM No. 207, because it undermined defendant's lack of opportunity defense.   Appellant asserts that “[t]he reasoning of Barney applies to this case as well.   If there is insufficient substantial evidence of a victim's age, the exact time of commission becomes critically relevant to the maintenance of the defense.   An instruction which deflects the jury's attention from temporal detail may unconstitutionally impede the defense.”   Appellant concedes that he did not rely on an alibi defense as in Barney, but says his defense theory was analogous to an alibi defense because “the issue was not whether the sex [acts] occurred, but rather when did they occur.”

We do not agree.   As previously discussed, the evidence was sufficient to establish that the acts charged in counts 1 through 4 occurred while L. was 13 years old.   Taken as a whole, the instructions did not deflect the jury's attention from important temporal detail.   They specified that the acts charged in counts 1 through 4 had to have occurred before L.'s 14th birthday, though not on a discrete date.⁶  We conclude that appellant's substantial rights were not affected by the giving of CALCRIM No. 207.

III. Failure to Instruct on CALCRIM No. 224 Regarding Evaluating Circumstantial Evidence

Appellant next argues that his convictions should be reversed because the trial court failed to instruct the jury using CALCRIM No. 224 regarding the use of circumstantial evidence,⁷ thereby reducing the prosecutor's burden of proof.   He concedes that the trial court instead instructed the jury using CALCRIM No. 225, which is similar to CALCRIM No. 224, but is more specific in that it addresses the use of circumstantial evidence to prove intent and mental state.⁸  We find no error and conclude that the jury was properly instructed.

A. The Relevant Proceedings

During closing argument, defense counsel told the jury that L.'s testimony was the only direct evidence of appellant's guilt, and any other evidence was circumstantial.   He explained that if there were two reasonable interpretations of circumstantial evidence, one pointing to guilt and one to innocence, the jury had a duty to acquit the defendant of the charge.   He said only an unreasonable interpretation of circumstantial evidence that pointed to appellant's innocence could be rejected.   The crux of the defense argument was that appellant and L. were in love and the sexual relationship between them was consensual.

Thereafter, the trial court instructed the jury using CALCRIM No. 223, which explains the difference between direct and circumstantial evidence, and the weight to be given to each.   The court also gave CALCRIM No. 225.

After the jury had been instructed, defense counsel called the omission of CALCRIM No. 224 to the trial court's attention.   The prosecutor stated that the majority of the evidence was direct, and that the only circumstantial evidence was offered to prove intent regarding count 2 (forcible lewd act).   After discussing the matter with counsel, the court ruled that the request was not timely.   The court further stated, “I don't think that the state of the evidence and the state of the record call for any reinstruction.”

B. Analysis

We note respondent's argument that the issue was forfeited by defense counsel's failure to raise it in a timely manner.   We need not address the forfeiture argument because the matter may readily be addressed and disposed of on the merits.

“The trial court is required to instruct the jury on the general principles of law relevant to the issues raised by the evidence.  (People v. Breverman (1998) 19 Cal.4th 142, 154.)   CALCRIM No. 224 states such a principle that must be given sua sponte on those occasions when it is applicable.  (People v. Wiley (1976) 18 Cal.3d 162, 174;  People v. Yrigoyen (1955) 45 Cal.2d 46, 49.)  [Fn. omitted.]   It is applicable only when the prosecution substantially relies on circumstantial evidence to establish any element of the case.   (People v. Yrigoyen, supra, at p. 49;  Bench Notes to CALCRIM No. 224.)   The instruction should not be given where circumstantial evidence is incidental to and corroborative of direct evidence.  (People v. Malbrough (1961) 55 Cal.2d 249, 250–251;  see also People v. Anderson (2001) 25 Cal.4th 543, 582.)”   (Samaniego, supra, 172 Cal.App.4th at p. 1171.)

Here, the prosecution did not substantially rely on circumstantial evidence.   Rather, it relied primarily on L.'s direct testimony regarding the crimes.   Under these circumstances, as the trial court recognized, CALCRIM No. 224 was not appropriate because the People's case was based fundamentally on direct evidence.   As stated in Samaniego, supra, 172 Cal.App.4th at pages 1171–1172, “CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.’   [Citations.]  CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive.  [Citation.]”  Indeed, in effect appellant concedes that the only circumstantial evidence of any consequence was regarding his mental state.   In his opening brief he states:  “Appellant anticipates respondent will adopt the prosecutor's argument and contend this instruction was not required because the fact appellant committed the alleged acts was shown by direct evidence from L. as she testified to all of the abuse incidents that allegedly happened to her.   This potential argument is unavailing and misses the point.   The prosecution was not merely required to prove appellant committed the offenses, it also was required to prove that appellant had the requisite mental state.   Whether that was shown by direct or circumstantial evidence was for the jury, not the court, to decide.”  (Italics added.)   Thus, CALCRIM No. 225 was better suited to the state of the evidence here because it pertains specifically to intent and mental state.   Appellant does not point to any issues other than mental state for which circumstantial evidence was offered or important.   He does not explain why CALCRIM No. 225 was purportedly erroneous and why CALCRIM No. 224 would have been preferable.   Accordingly, we find no merit in his argument that the trial court committed error by refusing to instruct the jury with CALCRIM No. 224.

IV. Cruel and/or Unusual Punishment

Finally, appellant contends that his aggregate sentence, consisting of three consecutive indeterminate terms of 15 years to life, plus full consecutive determinate terms amounting to an additional 59 years, violated his federal and state constitutional rights to be free from cruel and unusual punishment.   Appellant asserts that because he had no prior criminal record and scored in the low range for risk of reoffending under the “Static–99” risk assessment report, his sentence was excessive and grossly disproportionate to the seriousness of the crimes of which he was convicted.   We disagree.

A. The United States Constitution

“The Eighth Amendment prohibits imposition of a sentence that is ‘grossly disproportionate’ to the severity of the crime.  [Citations.]  In a noncapital case, however, successful proportionality challenges are ‘ “exceedingly rare.” ’  [Citation.]  In the rare case where gross disproportionality can be inferred from (1) the gravity of the offense and harshness of the penalty, the court will consider (2) sentences imposed for other offenses in the same jurisdiction and (3) sentences imposed for commission of the same crimes in other jurisdictions.  [Citation.]  ‘[I]t is only in the rare case where a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality that the second and third criteria come into play.’  [Citations.]”  (People v. Haller (2009) 174 Cal.App.4th 1080, 1087–1088 (Haller ).)

In support of the argument that his sentence constitutes cruel and unusual punishment, appellant focuses solely on his lack of a prior record and his low Static–99 score.   Appellant makes no attempt to downplay the gravity of the offenses of which he was convicted, which spanned six years of L.'s young life, during which he raped her and forced her to perform oral sex hundreds of times.   He occupied a position of trust in her life, and took advantage of that position to repeatedly violate her person and her dignity.   The “callous and opportunistic nature” of his relentless sexual assaults on L. comprises “precisely the sort of sexual offense that warrants harsh punishment.”  (See People v. Alvarado (2001) 87 Cal.App.4th 178, 200.)   By way of comparison, the United States Supreme Court refused to find grossly disproportionate a life sentence without the possibility of parole for the possession of 650 grams of cocaine.  (Harmelin v. Michigan (1991) 501 U.S. 957.)   We decline to conclude that appellant's punishment is disproportionate to his criminal responsibility.

B. The California Constitution

Under the California Constitution, punishment is disproportionate if it ‘shocks the conscience’ and offends fundamental notions of human dignity, considering the offender's history and the seriousness of his offenses.   [Citation.]  We first examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.   [Citation.]  Relevant factors include the facts of the current crimes, the nature of the offenses, aggravating circumstances, violence, whether there are rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general, and penological purposes of the prescribed punishment.  [Citation.]  Second, we compare the penalty with penalties prescribed in California for different, more serious offenses.   [Citation.]  Third, we compare the penalty with penalties for the same offenses in other jurisdictions.  [Citation.]  Our authority is circumscribed by the separation of powers doctrine.  [Citation.]”  (Haller, supra, 174 Cal.App.4th at p. 1092.)

For the reasons set forth above, we cannot say that appellant's punishment shocks the conscience.   As appellant fails to address whether his sentence is disproportionate when compared to sentences in this state for more serious offenses or to sentences in other states for the same offense, we need go no further.   Our role is simply to determine whether appellant's sentence crosses the boundary of conscience and fundamental notions of human dignity.  (In re Lynch (1972) 8 Cal.3d 410, 424;  People v. Wingo (1975) 14 Cal.3d 169, 174.)   We readily conclude that boundary has not been breached in this case.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Penal Code..  FN1. All further undesignated statutory references are to the Penal Code.

FN2. The trial court dismissed one count of forcible rape (count 20), and one count of forcible oral copulation (count 21) pursuant to section 1118.1.   Appellant was acquitted of two additional counts of forcible rape and one count of forcible oral copulation (counts 18, 19 & 22).   The jury failed to reach a verdict on six other counts (one count of assault with a deadly weapon (§ 245, subd. (a)(1), (count 11)), three counts of forcible oral copulation (counts 13, 15 & 17), and two counts of forcible rape (counts 14 & 16);  these counts were dismissed at the request of the prosecution..  FN2. The trial court dismissed one count of forcible rape (count 20), and one count of forcible oral copulation (count 21) pursuant to section 1118.1.   Appellant was acquitted of two additional counts of forcible rape and one count of forcible oral copulation (counts 18, 19 & 22).   The jury failed to reach a verdict on six other counts (one count of assault with a deadly weapon (§ 245, subd. (a)(1), (count 11)), three counts of forcible oral copulation (counts 13, 15 & 17), and two counts of forcible rape (counts 14 & 16);  these counts were dismissed at the request of the prosecution.

FN3. R. testified more specifically that they came to Los Angeles on June 24 or 25, 2002..  FN3. R. testified more specifically that they came to Los Angeles on June 24 or 25, 2002.

FN4. The People state in their respondent's brief on appeal that appellant raped L. at that time, but the record does not support that statement..  FN4. The People state in their respondent's brief on appeal that appellant raped L. at that time, but the record does not support that statement.

FN5. Appellant's arguments regarding the dates and testimony at issue are rather garbled, and replete with misstatements of the record and apparent typographical errors.   We have attempted to understand and respond to the substance of appellant's arguments despite these errors..  FN5. Appellant's arguments regarding the dates and testimony at issue are rather garbled, and replete with misstatements of the record and apparent typographical errors.   We have attempted to understand and respond to the substance of appellant's arguments despite these errors.

FN6. We note that appellant does not rely on the part of the Use Note stating CALCRIM No. 207 should not be given “when two similar offenses are charged in separate counts.”   In any event, the cases cited in the Use Note on that point concern different situations from that present here.   In those cases, a single crime occurring on a specified date was charged, but the evidence suggested more than one possible occurrence.  (See, e.g., People v. Gavin (1971) 21 Cal.App.3d 408, 411.).  FN6. We note that appellant does not rely on the part of the Use Note stating CALCRIM No. 207 should not be given “when two similar offenses are charged in separate counts.”   In any event, the cases cited in the Use Note on that point concern different situations from that present here.   In those cases, a single crime occurring on a specified date was charged, but the evidence suggested more than one possible occurrence.  (See, e.g., People v. Gavin (1971) 21 Cal.App.3d 408, 411.)

FN7. CALCRIM No. 224 (which is substantially similar to former CALJIC No. 2.01) states:  “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.  [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.   If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.   However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”.  FN7. CALCRIM No. 224 (which is substantially similar to former CALJIC No. 2.01) states:  “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.  [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.   If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.   However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

FN8. CALCRIM No. 225 (which is substantially similar to former CALJIC No. 2.02), as given by the trial court, provides:  “The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent.   The instruction for each crime explains the intent required.  [¶] An intent may be proved by circumstantial evidence.  [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.  [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent.   If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence.   However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”.  FN8. CALCRIM No. 225 (which is substantially similar to former CALJIC No. 2.02), as given by the trial court, provides:  “The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent.   The instruction for each crime explains the intent required.  [¶] An intent may be proved by circumstantial evidence.  [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.  [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent.   If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence.   However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

EPSTEIN, P. J. MANELLA, J.