Filed 12/16/19 P. v. Asbury 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

CAMERON JUNIOR ASBURY,

Defendant and Appellant.

C087397

(Super. Ct. No. 17CF03311)

Following a bench trial, the trial court found defendant Cameron Junior Asbury guilty of committing numerous sex offenses against a child. The court sentenced defendant to a determinate term of 66 years and an indeterminate term of 400 years to life. On appeal, defendant contends: (1) all but one of his lewd conduct convictions, or alternatively all but one conviction per day, should be stayed pursuant to Penal Code section 654; and (2) his sentence violates the United States and California Constitutions because it constitutes cruel and unusual punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, defendant lived with the six-year-old victim and her family. While living there, defendant used a family member’s old cell phone, which was still linked to the family member’s Google Plus account. On July 7, 2017, a family member accessed the Google Plus account and discovered pictures of defendant sexually assaulting the six-year-old victim. A police investigation followed.

Butte County Detective Jason Miller determined the first picture of defendant sexually assaulting the victim was taken on June 24, 2017, and the last picture was taken on July 4 or July 7, 2017. Defendant admitted to Detective Miller that he sexually assaulted the victim and took pictures and videos of the assaults for at least two weeks. The pictures and videos showed, among other things, defendant masturbated the victim, the victim masturbated defendant, defendant orally copulated the victim, the victim orally copulated defendant, defendant penetrated the victim’s vagina and anus with his penis and fingers, defendant masturbated and ejaculated in the victim’s mouth and on the victim while the victim was naked, defendant’s penis penetrated the victim’s vagina and ejaculated inside her vagina, and defendant exposed the victim’s genitals to the camera. There were also pictures and videos of the victim posing in sexually explicit ways and masturbating herself.

The trial court found defendant guilty of 30 counts of lewd conduct upon a child, 7 counts of sexual intercourse and sodomy with a child 10 years of age or younger, and 15 counts of oral copulation and sexual penetration with a child 10 years of age or younger.

DISCUSSION

I

The Court Was Correct In Imposing

Multiple Punishments For Lewd Conduct

Defendant argues the trial court violated section 654 by imposing consecutive sentences for offenses that “all result[ed] from a single actus reus — the act of taking sexual photographs and videos of [the victim].” As such, defendant seeks to stay all but one of the lewd conduct convictions, or, alternatively, stay all but one conviction per day. This argument is meritless.

At the outset, we note defendant mischaracterizes the nature of the offenses. Defendant was not convicted “of taking sexual photographs and videos of [the victim],” he was convicted of the sexual acts he perpetrated against the victim in those photographs and videos.

Section 654, subdivision (a), provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “Whether [section 654] ‘applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.’ ” (People v. Vang (2010) 184 Cal.App.4th 912, 915-916.) There is “ ‘no universal construction which directs the proper application of section 654 in every instance.’ ” (People v. Perez (1979) 23 Cal.3d 545, 551.)

Defendant asserts he “committed a single physical act, i.e., initiating or agreeing to take photographs and videos of [the victim], a minor, in sexually explicit positions.” As such, he contends he committed “ ‘a single physical act’ ” under section 654 and can “be punished only for one [offense] — or at most, one per day,” as explained in Corpening. (Citing People v. Corpening (2016) 2 Cal.5th 307.) Corpening does not assist defendant.

In Corpening, the defendant “was convicted of both carjacking and robbery based on the same forceful taking of a vehicle.” (People v. Corpening, supra, 2 Cal.5th at p. 309.) Our Supreme Court considered “whether the forceful taking of this vehicle — the same taking that, according to the prosecution, accomplished the crimes of both robbery and carjacking — constitute[d] a single physical act subject to the prohibition on multiple punishment under section 654.” (Ibid.) The court concluded that “[s]ince the same action completed the actus reus for each of these two crimes, . . . section 654 [precluded] punishment under both provisions.” (Ibid.)

Here, the actus reus of each lewd conduct offense was completed each time defendant committed a lewd act upon the victim. We agree with the trial court that the offenses “were separate acts. Not the same act punishable by more than one [penal code] section.” We see no similarity between defendant’s conduct and the conduct at issue in Corpening.

We agree with the People that this case is more like Harrison. (People v. Harrison (1989) 48 Cal.3d 321.) There, the defendant broke into the home of a legally blind woman, beat her, and digitally penetrated her three times. (Id. at pp. 325-326.) The defendant digitally penetrated her three times because each time she managed to escape he would assault her again once he recaptured her. (Ibid.) The defendant argued section 654 “preclude[d] multiple punishment where only one ‘kind’ of crime is committed during a brief sexual assault.” (Id. at p. 326.) Our Supreme Court disagreed, concluding a defendant does not get impunity because he or she committed the same crime multiple times. (Id. at p. 325.) The court further noted “[m]ultiple convictions have also been upheld where several identical sex crimes are accompanied by commission of a different one,” and “wholly identical sexual acts follow the same pattern.” (Id. at pp. 330, 331.) Here, defendant committed 30 lewd acts upon the victim and each act was separate and distinct and deserves to be punished accordingly.

In the alternative, defendant seeks to stay the punishment for all but one conviction per day. This application of section 654 would allow a perpetrator to commit as many separate acts of lewd conduct against a victim as possible in one day and be punished for committing only one such act. We find defendant’s proposition contrary to the intent of section 654. The purpose of section 654 is to “insure that a defendant’s punishment will be commensurate with his culpability,” and a “defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.” (People v. Perez (1979) 23 Cal.3d 545, 551, 553.)

We conclude the trial court properly punished defendant for each count of lewd conduct.

II

Defendant’s Sentence Does Not Subject Him To Cruel And

Unusual Punishment Under The United States Or California Constitutions

Defendant argues his sentence of 466 years to life in prison constitutes cruel and unusual punishment under the United States and California Constitutions. He first argues, citing to Justice Mosk’s concurrence in People v. Deloza (1998) 18 Cal.4th 585, that his sentence is unconstitutional on its face because it cannot be served by a human being, and, at a maximum, his sentence should be life imprisonment or life imprisonment without the possibility of parole. As the law is to the contrary, we do not find defendant’s sentence unconstitutional on its face. (Ewing v. California (2003) 538 U.S. 11, 30-31 [155 L.Ed.2d 108, 123].)

Next, defendant argues his sentence is not proportional to his crimes because there was only one victim, the offenses occurred within less than two weeks, there was no evidence of force, and he has a minimal criminal record. We find these arguments unpersuasive because a sentence is unconstitutional only if it is “ ‘ “grossly disproportionate” to the crime.’ ” (Ewing v. California, supra, 538 U.S. at p. 23 [155 L.Ed.2d at p. 119].) Defendant has made no such showing.

“Whether a punishment is cruel and/or unusual is a question of law subject to our independent review, but underlying disputed facts must be viewed in the light most favorable to the judgment.” (People v. Palafox (2014) 231 Cal.App.4th 68, 82.)

Courts generally evaluate three factors in determining the proportionality of a sentence: “ ‘(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; or (iii) the sentences imposed for commission of the same crime in other jurisdictions.’ ” (Ewing v. California, supra, 538 U.S. at p. 22 [155 L.Ed.2d at p. 118].)

As defendant fails to discuss the second and third factors of proportionality, we consider only the first. “The gravity of offenses can be assessed by comparing the harm caused or threatened to the victim or society and the culpability of the offender with the severity of the penalty.” (People v. Haller (2009) 174 Cal.App.4th 1080, 1088.) In noncapital cases, “ successful proportionality challenges are ‘ “exceedingly rare.” ’ ” (Id. at p. 1087.)

Here, the offenses committed by defendant caused both harm and violence to the six-year-old victim. Defendant repeatedly sexually assaulted the victim in her home for at least two weeks and memorialized the offenses in pictures and videos. The court even said, “I’m quite certain that [the victim] will suffer for the rest of her life as a result of this case.” We do not find this case to be one of those “ ‘ “exceedingly rare” ’ ” cases raising a successful proportionality challenge. (People v. Haller, supra, 174 Cal.App.4th at p. 1087.)

That persons convicted of sex crimes against multiple victims are considered “ ‘among the most dangerous from a legislative standpoint,’ ” as stated in People v. Wutzke (2002) 28 Cal.4th 923, 930-931, does not aid in our “comparing the harm caused or threatened to the victim or society and the culpability of the offender with the severity of the penalty.” (People v. Haller, supra, 174 Cal.App.4th at p. 1088.) The same is true of defendant’s assertion that the two-week timespan was “a period far shorter than the years of sexual abuse often inflicted on juvenile sex offense victims.” We fail to see how the Alvarado court’s discussion of California Rules of Court, rule 4.425, which delineates factors affecting the decision to impose consecutive rather than concurrent sentences, assists defendant. (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.) Nor does defendant attempt to connect the dots for us.

We conclude defendant’s sentence does not violate the United States or California Constitutions’ prohibition against cruel and unusual punishment.

DISPOSITION

The judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Mauro, J.

/s/

Hoch, J.
ROBIE, J., Concurring.

The law is clear: a multicentury sentence is constitutional if it is proportional to the crime. Yet, a sentence of 466 years to life undermines public confidence in the fairness of our system. No man or woman could ever complete such a sentence and the imposition thereof creates an absurd result that tarnishes the integrity of our system. As such, I respectfully disagree with the law that allows for mulitcentury sentences.

/s/

Robie, Acting P. J.