People v. J.I.A.

• Citation: 196 Cal.App.4th 393,11 Cal. Daily Op. Serv. 6948,127 Cal.Rptr.3d 141
• Decision Date: 14 September 2011
• Docket Number: No. G040625.,G040625.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. J.I.A., Defendant and Appellant.

127 Cal.Rptr.3d 141

11 Cal. Daily Op. Serv. 6948

2011 Daily Journal D.A.R. 8327Review GrantedPreviously published at: 196 Cal.App.4th 393

The PEOPLE, Plaintiff and Respondent,

v.J.I.A.,¹ Defendant and Appellant.

No. G040625.

Court of Appeal, Fourth District, Division 3, California.

June 8, 2011.

As Modified June 27, 2011.

Review Granted Sept. 14, 2011.

Background: Defendant was convicted in the Superior Court, Orange County, No. 04NF4197, James A. Stotler, J., of two counts of sodomy by force, two counts of kidnapping to commit robbery, forcible oral copulation, and other offenses against four victims, and was sentenced to 50 years to life plus two consecutive life terms, with a minimum period of actual confinement of 56 and one-half years. Defendant appealed.

Holdings: The Court of Appeal, O'Leary, J., held that:

(1) defendant's sentence was a de facto juvenile life without possibility of parole (LWOP) sentence in violation of Eighth Amendment, and

(2) defendant's sentence violated California's proportionality test for cruel and unusual punishment.

Affirmed as modified.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY, J.

[1] J.I.A. appeals from a judgment after a jury convicted him of two counts of sodomy by force, two counts of kidnapping to commit robbery, two counts of dissuading a witness by force, two counts of second degree robbery, kidnapping to commit a sexual offense, forcible oral copulation, and attempted second degree robbery, and found true numerous enhancements. He argues his sentence of 50 years to life plus two consecutive life terms constitutes cruel and unusual punishment under the federal and state Constitutions. ²

As we explain below more fully, J.A. was 14 years old at the time of the offenses and 18 years old at the time of sentencing. His minimum period of actual confinement is 56 and one-half years, which with credits makes him eligible for parole when he is approximately 70 years old. Although J.A. committed violent sexual offenses against four separate victims who suffered great trauma, J.A.'s punishment was unconstitutional based on his age at the time he committed the offenses. The judgment is affirmed as modified; as so modified, J.A. will be eligible for parole at age 56.

FACTS

Victim No. 1–A.R.

In October 2004, 12–year–old A.R. was walking home from school when 14–year–old J.A., armed with a screwdriver, told A.R. to get on his bike. A.R. complied, and J.A. took him to a nearby building and led him to the roof. J.A. told A.R. to kneel, which he did, and J.A. pulled out his penis and told him to “suck it.” A.R. refused, and J.A. told him to “drop [his] pants.” A.R., fearing for his life, took off his pants. J.A. sodomized A.R. “for a long time [.]” After J.A. stopped, he searched A.R.'s backpack and left. A.R. went home, told his mother what happened, and called the police. A sexual assault examination revealed small hemorrhages and redness in A.R.'s anal area. His injuries were consistent with forcible anal penetration.

Victim No. 2–P.J.

About three weeks later, 13–year–old P.J. was walking to school when J.A. asked him for $1. P.J. replied he had only $1 and needed it for the bus. J.A. took out a knife and demanded $1, and P.J. complied. J.A. told P.J. to walk with him. J.A. asked P.J. if he had any more money, and P.J. took out his wallet and gave him $40. J.A. led P.J. to an apartment complex, but when they saw people, they left. J.A. led P.J. to a secluded area where he again pulled out the knife and threatened him. J.A. told P.J. that if he told anybody what happened, J.A. would kill him, and if J.A. was “ ‘locked up,’ ” J.A. knew people who would kill him. P.J. reported the incident to the police.

Victim No. 3–R.V.

The next month, 12–year–old R.V. was walking to school when J.A. asked him for the time. J.A. left and then came back and asked R.V. for $1. R.V. said he did not have any money, and J.A. pulled out a knife, held it against R.V.'s back, and led him across the street to an apartment building, where J.A. took his compact disc player. J.A. led R.V. back across the street to another apartment building, where J.A. found an open door. J.A., armed with a knife, told R.V. to suck his penis or go outside naked. J.A. forced him to his knees and put his penis in R.V.'s mouth. J.A. told him to take off his clothes, get on the bed on his side, and hold on to the bed frame. J.A. sodomized R.V. for five to 10 minutes. When he was done, J.A. got dressed and threatened to kill R.V. if he told anyone what happened. When R.V. got to school, he told the principal someone had pulled a knife on him. He later told the police the entire story. A sexual assault examination revealed bleeding, bruises, and redness in R.V.'s anal area. His injuries were consistent with sexual assault.

Victim No. 4–A.M.

Later the same day, 12–year–old A.M. was walking to school when J.A. asked him for $1. A.M. told him that he did not have any money. J.A. pulled out a knife and told A.M. to give him something or he was going to “shank” him. J.A. told A.M. to walk to the alley. A.M. dropped his backpack and ran to school. A.M. told the principal what happened.

Later that day, Officer Joseph Faria found J.A. in an alley armed with a Swiss Army knife that had several blades and different instruments. J.A.'s DNA was found in sperm recovered during A.R.'s and R.V.'s physical examinations.

Trial Court Proceedings

An amended information charged J.A. with the following: (1) John Doe No. 1/A.R.-sodomy by force (Pen.Code, § 286, subd. (c)(2)) ³ (count 1); (2) John Doe No. 2/P.J.-kidnapping to commit robbery ( § 209, subd. (b)(1)) (count 2), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 3), and second degree robbery (§§ 211, 212.5, subd. (c)) (count 4); (3) John Doe No. 3/R.V.-kidnapping to commit a sexual offense ( § 209, subd. (b)(1)) (count 5), kidnapping to commit robbery ( § 209, subd. (b)(1)) (count 6), sodomy by force ( § 286, subd. (c)(2)) (count 7), forcible oral copulation ( § 288a, subd. (c)(2)) (count 8), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 9), and second degree robbery (§§ 211, 212.5, subd. (c)) (count 10); and (4) John Doe No. 4/A.M.-attempted second degree robbery (§§ 664, 211, 212.5, subd. (c)) (count 11).

As to counts 7 and 8, the information alleged J.A. kidnapped the victim in violation of sections 207, 209, and 209.5 (§ 667.61, subds. (b) & (e)), and the movement of the victim substantially increased the risk of harm to him (§ 667.61, subds. (c) & (d)(2)). With respect to counts 1, 7, and 8, the information alleged J.A. personally used a dangerous and deadly weapon, a knife (§§ 12022, 667.61, subds. (a), (b), (c), & (e)(4)), and he committed the offenses against multiple victims (§ 667.61, subd. (e)(5)). Finally, the information alleged J.A. personally used a dangerous and deadly weapon, a knife (§§ 12022, subd. (b)(1), 1192.7), as to counts 2, 3, 4, 5, 6, 9, 10, and 11. The jury convicted J.A. on all counts and found true all the enhancements.

In preparation for the sentencing hearing, the Orange County Probation Department filed a Presentence Report. After the prosecutor filed his sentencing brief, J.A. filed a sentencing brief pursuant to People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697( Dillon ), arguing multiple life sentences is cruel and unusual punishment as applied to him, and the prosecutor responded. Meanwhile, Dr. Martha Rogers submitted a “Report of Psychological Evaluation” and “Summary of Case Records.” Although Rogers's submissions and the Presentence Report are confidential, we will provide some of their general contents to provide context for J.A.'s claims.

With respect to his unstable and abusive upbringing, J.A.'s mother neglected him, and his father and stepfather, who both had substance abuse problems, were physically and emotionally abusive. When he was five or six years old, he was visiting family in Mexico when a family friend took J.A. into the woods and forced J.A. to suck his penis. He first had sexual intercourse when he was 13 years old (with a 14–year–old female) and when he was 14 years old, he had sexual intercourse with a 30–year–old woman. He experimented with alcohol and marijuana at the age of 12 or 13, and when he was arrested for the instant offenses, he smoked two packs of cigarettes per day.

As to his behavior, J.A. began misbehaving when he was in sixth grade—he could not follow rules, bullied other students, and fought. He was first suspended and then expelled from school. He started on a course of progressively more serious crimes—he stole, trespassed, and robbed.

With respect to his psychological assessments, at the age of eight years old, J.A.'s intelligence quotient (IQ) tests indicated he was in the mentally retarded range. He had “significantly low cognitive ability with commensurate adaptive behavior deficits.” He was identified for special education classes by the time he was eight years old. At the age of 12, achievement scores indicated he was in “the mentally deficient range.” Although a school psychologist reported 13–year–old J.A.'s assessment scores placed him in the “ borderline to low average range,” Rogers opined “[h]e was still functioning at the level of mental retardation.”

At the sentencing hearing, the trial court indicated it had considered the presentence report, the sentencing briefs, J.A.'s juvenile record report, and Rogers's submissions. After hearing counsels' arguments, the court denied J.A.'s Dillon motion. The court explained it had considered the nature of the offenses and the offender, including J.A.'s age, criminal record, personal characteristics,...