IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

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1 Filed 8/25/10 P. v. Henderson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A v. (Contra Costa County Super. Ct. No ) NATHAN MONTGOMERY HENDERSON, Defendant and Appellant. / A jury convicted appellant Nathan Henderson of false imprisonment, a lesser included offense of kidnapping for sexual purposes (Pen. Code, 236, 209, subd. (b)(1) (Count One)); 1 committing a forcible lewd act on a child under 14 ( 288, subd. (b)(1) (Count Two)); and assault with intent to commit forcible oral copulation ( 220, subd. (a) (Count Three)). The jury also found true a sentencing enhancement allegation pursuant to section The court sentenced appellant to an indeterminate term of 25 years to life for committing a forcible lewd act on a child under 14 (Count Two) and a consecutive fouryear term for assault with intent to commit forcible oral copulation (Count Three). The court also sentenced appellant to two years for false imprisonment (Count One), to run concurrently with the sentence for Count Three. 1 All further statutory references are to the Penal Code. 1

2 On appeal, appellant contends: (1) his sentence constitutes cruel and unusual punishment under the state and federal Constitutions; and (2) the court should have stayed the term for false imprisonment (Count One) pursuant to section 654. We agree the judgment must be modified to stay the sentence for false imprisonment pursuant to section 654. In all other respects, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Jane Doe I (Counts One and Two) At 11:00 a.m. on December 15, 2007, 11-year-old Jane Doe I (Doe I) was walking to her grandmother s house at the Pueblo Projects in Pittsburg. When she was near Pittsburg High School, a man later identified as 30-year-old appellant approached Doe I and said, Get in the car. I ll take you where you need to go. Appellant told Doe I, Yeah, I know your mama.... She s my cousin. Doe I got into the front passenger seat of appellant s car because she thought appellant might be her mother s cousin. Shortly thereafter, appellant asked, You mind if I do a little business real quick? and turned away from the direction of the Pueblo Projects. Appellant then grabbed Doe I s neck. When she began to scream because she was scared, appellant slapped the back of her head. Doe I asked appellant to let her go and appellant told her, Shut up. Then he said, Suck my dick, bitch. Appellant put a safety lock on the doors to prevent Doe I from escaping. Appellant told Doe I to take her pants off, but she refused, so he took them off himself. Then appellant took off Doe I s underwear and began touching her privacy, her groin. He took off his own pants and began to masturbate. After he ejaculated, he wiped himself off with a baby blanket in the backseat of the car. Appellant then forced Doe I to orally copulate him by pushing [her] head down. When he finished doing what he was doing, appellant took Doe I to a coffee shop and eventually let her get out of the car. A woman saw Doe I crying and called her mother. Jane Doe II (Count Three) At approximately 9:00 a.m. on December 15, 2007, 19-year-old Jane Doe II (Doe II) was walking to the Dollar Tree store in Pittsburg. Because of a medical condition, 2

3 Doe II is 4 8 and is missing a hand. As she approached Pittsburg High School, a man she later identified as appellant drove up to her and asked her if she wanted a ride. Doe II did not think it was unusual for appellant to offer her a ride because people often offered to drive her places because of her medical condition. Doe II got in the car and told appellant she wanted to go to the Dollar Tree store. In response, appellant said, I know a quick way. Appellant began playing with Doe II s hair, telling her it was pretty. Then he began to pull Doe II s head toward his groin. He said, Suck my dick, bitch. Appellant was big, and Doe II was afraid of him. At that point, Doe II began to scream and scream, which made appellant stop the car. As Doe II got out of the car, appellant laughed at her and drove away. She called 911. Verdict and Sentencing The jury convicted appellant of false imprisonment of Doe I, a lesser included offense of kidnapping for sexual purposes (Count One); committing a forcible lewd act on Doe I, a child under 14 (Count Two); and assault of Doe II with intent to commit forcible oral copulation (Count Three). The jury also found true the allegation pursuant to section that during the commission of committing a forcible lewd act on Doe I, appellant kidnapped her and the movement substantially increased the risk of harm to her over and above the level necessarily inherent in the offense. In its sentencing memorandum, the People sought a 31-year sentence. The People also requested that the sentence for false imprisonment (Count One) be stayed pursuant to section 654. Appellant moved to modify the verdict to strike the jury s section finding, contending the proposed sentence constituted cruel and unusual punishment in violation of the federal and state Constitutions. The court denied the motion and sentenced appellant to 25 years to life for Count Two, a consecutive four-year term for Count Three, and a two-year term for Count One, to run concurrently with the sentence for Count Three. 3

4 DISCUSSION Appellant claims his sentence is cruel and unusual under the federal and state Constitutions. He also contends the court s imposition of the sentence for false imprisonment (Count One) violates section 654. Appellant s Sentence Was Not Cruel and Unusual under the Federal and State Constitutions The court sentenced appellant in accordance with section , which mandates a 25 years to life sentence for committing a forcible lewd act on a child under 14 when a victim is kidnapped and the movement of that victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense.... ( , subds. (c)(4), (d)(2).) Section is sometimes called the One Strike law. (People v. Anderson (2009) 47 Cal.4th 92, 99.) The One Strike law was enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction. (People v. Palmore (2000) 79 Cal.App.4th 1290, 1296.) Appellant claims his sentence under section constitutes cruel and unusual punishment under the federal Constitution. The Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11, 21.) Appellant seems to contend the sentence is unconstitutional because it is grossly disproportionate to the circumstances of the case. For example, appellant claims his sentence is not warranted because he has no criminal record, he has been a responsible parent and husband, and because he has been employed throughout adult life. None of these claims has any merit. Appellant s sentence is not grossly disproportionate to the severity of the crime in violation of the Eighth Amendment. On two separate occasions, appellant lured two young and vulnerable victims an 11- year-old child and a 19-year-old disabled woman by offering to drive them to their respective destinations. When the victims got into his car, he sexually assaulted them. Appellant grabbed Doe I s neck and slapped her head. He forced Doe I to orally copulate 4

5 him, pushing her head toward his groin, and demanding she Suck [his] dick. Appellant also pulled Doe II s head toward his groin, demanding she orally copulate him. Appellant s marital status, employment history, and previous lack of a criminal record do not render his sentence disproportionate to the severity of his crimes. Appellant also argues the sentence is unwarranted because no weapon was used. We are not persuaded. Appellant needed no weapon to commit his crimes because he was significantly older and bigger than both of his victims, and because he confined his victims in his car. Finally, appellant s claim that the sentence is somehow disproportionate to the crime because he was under the influence at the time of the crimes is equally unpersuasive. The jury rejected appellant s intoxication defense. Appellant also claims his sentence is cruel under the state Constitution. A punishment may violate the California Constitution if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch), superseded by statute on other grounds as stated in People v. West (1999) 70 Cal.App.4th 248, 256.) To determine whether a sentence is so disproportionate to the crime that it violates the California Constitution, we consider (1) the nature of the offense and the offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; (3) a comparison of the challenged penalty with punishment prescribed for the same offense in other jurisdictions. 2 (People v. Thompson (1994) 24 Cal.App.4th 299, 304, citing Lynch, supra, at pp ) For the reasons discussed above, we conclude appellant s sentence is not disproportionate to the crime and, as a result, does not shock the conscience or offend fundamental notions of human dignity. We reject appellant s contention that his sentence constitutes cruel and unusual punishment under the California Constitution. We also note that numerous appellate courts have rejected the argument appellant makes here and have 2 Appellant does not address the second and third Lynch factors. 5

6 upheld the constitutionality of sentences ranging from 25 years to life pursuant to section (See, e.g., People v. Alvarado (2001) 87 Cal.App.4th 178, [life sentence pursuant to section was not cruel or unusual where defendant was 18, had no prior felony record, was intoxicated during the offense, and suffered from emotional and mental disorders]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278, 1282 [sentence of 25 years to life for rape under section did not constitute cruel and unusual punishment where 38-year-old defendant had no prior record and did not use a weapon]; People v. Crooks (1997) 55 Cal.App.4th 797, 805, 807 [25 years to life sentence was not cruel or unusual notwithstanding defendant s insignificant prior record, productive life, and high blood alcohol content at the time of the incident].) The Court Should Have Stayed the Sentence for False Imprisonment As stated above, the court imposed a two-year concurrent prison term for falsely imprisoning Doe I in Count One. The court imposed a 25 years to life term for committing lewd and lascivious acts on Doe I in Count Two. Finally, the court imposed a consecutive four-year prison term for sexually assaulting Doe II with the intent to commit oral copulation in Count Three. Appellant contends the court should have stayed the prison term for his false imprisonment conviction (Count One) pursuant to section 654. Section 654 provides in relevant 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. ( 654, subd. (a).) The People concede the court should have stayed the two-year concurrent term for the false imprisonment conviction (Count One). We agree. In the court below, the prosecutor argued and the evidence demonstrated that appellant falsely imprisoned Doe I for the purpose of sexually assaulting her. As a result, the court should have stayed the sentence for false imprisonment (Count One) and the abstract of judgment should be amended accordingly. (People v. Kramer (2002) 29 Cal.4th 720, 722; People v. Latimer (1993) 5 Cal.4th 1203, 1212 [defendant could not be punished for kidnapping and rapes 6

7 where kidnapping facilitated rapes]; see also People v. Martinez (1980) 109 Cal.App.3d 851, 858 [defendant convicted of false imprisonment and assault with intent to commit rape; section 654 applied to false imprisonment conviction].) DISPOSITION The trial court shall prepare an amended abstract of judgment to show that execution of sentence on Count One is stayed pursuant to Penal Code section 654. The trial court is further directed to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. Jones, P.J. We concur: Simons, J. Bruiniers, J. 7