1

Filed 7/28/23 P. v. DeLeon CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE NICOLLA DELEON,

Defendant and Appellant.

 A166290

 (San Francisco County

 Super. Ct. No. SCN229759)

This is defendant Jorge Nicolla DeLeon’s second appeal following his 

conviction for three sexual offenses against his three step-granddaughters, 

aged five, six, and 10. A jury convicted DeLeon for continuous sexual abuse

of two of the children (Pen. Code, § 288.5 [counts 1 and 4]) and committing a 

lewd and lascivious act on the third.1 The jury also found true multiple 

victim enhancements. The court sentenced DeLeon to two consecutive terms 

of 25 years to life in prison. 

On appeal, DeLeon raised a number of errors, including that his 

sentence constituted cruel and unusual punishment. (People v. DeLeon

(Nov. 21, 2021, A159154) [nonpub. opn.] 2021 WL 5446280 (DeLeon I).) We

affirmed DeLeon’s convictions but remanded the matter because “the trial 

court erred in sentencing, wrongly understanding it had no discretion but to 

1 All further undesignated statutory references are to the Penal Code.
2

impose the consecutive sentences.” In light of the decision to remand, we did 

not reach DeLeon’s argument concerning whether his original sentence 

constituted cruel and unusual punishment. (DeLeon I, at p. *20.) On 

remand, after noting that consecutive sentences were not required, the trial 

court imposed the same sentence—an aggregate term of 50 years to life.

DeLeon now renews his argument that his sentence constitutes cruel 

and unusual punishment under California law—article I, section 17 of the 

California Constitution—and federal law—under the Eighth Amendment of 

the United States Constitution. We disagree with DeLeon and affirm.

BACKGROUND

Evidence at Trial

We include a comprehensive summary of the facts relating to the 

evidence at trial, leading to DeLeon’s convictions and sentence, in our 

previous opinion. (DeLeon I, supra, 2021 WL 5446280.) We reproduce a 

portion of that summary here, to provide a description of the factual basis for 

our decision regarding DeLeon’s contentions regarding his sentence.

In 2003, when he was 28, DeLeon began a relationship with Cristiana, 

a 48-year-old woman with seven children and several grandchildren. DeLeon

and Cristiana lived in Christiana’s house in San Francisco (the house). 

Christina’s daughter, Sitti, moved there with her husband Sean and their 

two children, a son Cristian, born in 2002, and a daughter S.M., born in 2004.

A third child, a daughter, C.M., was born in 2008. Sitti, Sean, and the girls 

lived in an “in-law unit” inside the garage, which had a “living room of sorts” 

with a couch. Cristian, C.M. and S.M.’s older brother, lived in a separate 

room in the backyard.
3

Cristiana’s son Andrew also lived in the house, in another upstairs 

bedroom. Andrew had a daughter, S.A., who lived with her mother Sheryl F. 

S.A. visited the house on weekends.

An April 2017 investigation by Child Protective Services transformed

into a sexual abuse investigation concerning DeLeon’s conduct. John Viet led 

the investigation. Ultimately, investigators interviewed Sitti’s three 

children, C.M., S.M., and Christian, and Andrew’s daughter, S.A. At the time 

of trial, C.M. was 10, S.M. was 15, and S.A. was nine years old. 

As summarized at length in our earlier opinion, C.M., S.M., and S.A. all 

described multiple incidents of inappropriate touching by DeLeon, including 

of their torsos and genitals. To provide just a few examples of the children’s 

testimony, C.M. remembered that DeLeon “touched her on her arms, legs, 

“butt,” and “private,” which she used to “go pee,” which occurred when her 

parents and siblings were downtown, and she remained at the house with her 

grandmother and defendant.” (DeLeon I, supra, 2021 WL 5446280 at p. *2.) 

“[S]he ‘wanted to say, “Stop,” ’ but ‘was too scared,’ thinking defendant ‘might 

get mad, or [her grandma] might think [she] was lying.’ ” (Ibid.) DeLeon 

then “flipped over his hands to [her] butt’ and moved his hand ‘all around.’ ” 

(Ibid.) 

S.M. testified that “when she was about eight years old” DeLeon 

“started to touch her ‘in places where [she] didn’t appreciate being touched,’ 

specifically, her ‘boobs,’ ‘butt,’ and ‘private part,’ that . . . she used ‘[t]o pee.’ ” 

(Ibid.) S.M. explained the touching “ ‘just happened often in the same places. 

That’s why, it’s not something I want to remember, but it’s something like . . . 

that’s why I can’t say I know I remember the very first time it started 

happening. But . . . if anything, all the times it did happen they were mostly 

the same, because they mainly happened in the same spots.’ As to the 
4

frequency of the touching, S.M. testified, ‘It would happen many times. I 

can’t give you an exact number because I [did not] count. I can tell you that, 

within those years that it happened, it was probably more than 10, probably 

more than 15, probably more than 20. Because it happened pretty often.’ ” 

(Ibid.) S.M. specifically described DeLeon standing “next to her, in back of 

her so that the others could not see. S.M. felt defendant put his hand in her 

pants and touch her ‘butt’ inside her underwear with his bare hand for 

‘probably less than a minute,’ and then squeeze her ‘butt.’ When [DeLeon]

took his hand out, S.M.’s pants ‘smack[ed]’ or ‘snap[ped]’ against her back.” 

(Id. at p. *3.) S.M. testified about another incident in which DeLeon “stood 

behind S.M. and rubbed ‘his private part’ against her ‘butt’ and breathed on 

S.M.’s neck and kissed it. Christian looked up and [DeLeon] ‘backed away,’ 

saying ‘Oh, what are [you] doing on your phone?’ In her view acting as if ‘he 

was interested in what [she] was doing, to play it off like he wasn’t just doing 

the things he was doing.’ ” (Ibid.) 

S.A. similarly testified she had stopped visiting her grandmother’s 

house on the weekends because “ ‘something had happened’ in [DeLeon’s]

room—he ‘touched [her] private part,’ the part she used ‘to pee.’ S.A. said 

[DeLeon] told her not to tell anybody about the touching, and she complied 

because she ‘was scared [she] was going to get in trouble’ with her mother 

and [DeLeon].” (DeLeon I, supra, 2021 WL 5446280 at p. *4.)

The children testified concerning other graphic examples, as 

summarized in our earlier opinion. (DeLeon I, supra, 2021 WL 5446280 at 

pp. *2–*4.) Christian corroborated incidents relating to his sisters, C.M. and 

S.M. Based on witness testimony, the incidents recurred as to each step 

granddaughter over a period of months or years. 
5

In his defense, DeLeon testified for some four hours. He described 

various incidents in which he suffered abuse in his childhood, beginning 

when he was age five. He described difficulties interacting with Christina’s 

family, including “confrontations” where “sometimes they call[ed] the police.” 

He said he tried his best to fulfill his role as a step-grandparent, testifying he 

especially cherished the gatherings in what he called the upstairs kitchen 

room.

DeLeon admitted to having occasional physical contact with the 

children, such as bouncing them on his knee, but denied anything sexual took

place. DeLeon reported that while he did not babysit either S.M. or C.M., 

and “seldom” went to the garage room with the television, he did often see the 

children at the home, especially upstairs with Cristiana present. DeLeon

generally denied any contact with the children for sexual arousal. Rather, he 

testified he had a good relationship with C.M. and S.M., and that he “tried to 

get close to them” and “to get along with them.” He blamed difficulties in his 

relationship with them on Sitti.

Remand and Resentencing

On remand, both parties submitted revised sentencing memoranda, 

which the trial court reviewed prior to the August 17, 2022 resentencing 

hearing. At the beginning of the hearing, the trial court issued a tentative 

ruling, imposing an indeterminate term of 50 years to life as to counts 1 and 

4. The trial court noted that consecutive sentencing was not mandatory, 

which had not been discussed on the record at the original sentencing 

hearing. The trial court expressed its intent to exercise its discretion based 

on its “review of all of the factors . . . namely, that there were multiple 

victims, that all three victims were under the age of 14 and that the crime in 

Counts 1 and 4 occurred over a period of years to impose full separate and 
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consecutive sentences for the defendant’s conviction for violation of Penal 

Code section 288.5 in Counts 1 and 4.”

Before hearing argument, the trial court advised counsel that it had 

carefully considered the cruel and unusual punishment issues raised. The 

court explained: “Before I hear argument from counsel, I would like to note I 

carefully considered defense counsel’s argument that the imposition of 

consecutive sentences on Counts 1 and 4 constitutes cruel and unusual 

punishment in violation of the Eighth Amendment of the U.S. Constitution 

and Article 1 section 17 of the California Constitution. [¶] Counsel argued 

that Mr. DeLeon’s conduct was substantially less serious and is often seen in 

cases of child molestation. There was no oral copulation neither vaginal nor 

anal penetration and Mr. DeLeon never asked or forced any of the girls to 

touch him. [¶] Counsel also correctly notes that the sentence for oral 

copulation with or sexual penetration of a minor under the age of ten years is 

15 years to life and that sexual penetration even if accomplished by force, 

violence, duress, menace or fear against a minor under the age of 14 years is 

punishable by eight, ten, or twelve years in prison. None of that conduct 

occurred in this case. And the defendant will receive a longer sentence than 

mandated for these crimes. [¶] Although I would agree there is an inference 

of disproportionality when comparing the mandatory sentence in this case to 

the sentence required for the other offenses referenced above, I do not believe 

the mandated sentence rises to the level of violating the provisions of the U.S. 

or California Constitution. [¶] I am required to follow the sentencing laws as 

enacted by the legislature and to the extent that defense believes some of 

these laws need to be amended or updated, I would encourage him to present 

his arguments to the legislature.”

DeLeon now appeals a second time.
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DISCUSSION 

A. Standard of Review and Applicable Law

The trial court re-sentenced DeLeon to two consecutive terms under 

section 667.61, commonly known as the “One Strike” law, which is an 

alternative sentencing scheme that applies to specified felony sex offenses. 

(People v. Reyes (2016) 246 Cal.App.4th 62, 79 (Reyes).) DeLeon does not 

challenge the One Strike law as unconstitutional on its face. Instead, he 

contends that “as applied” to this case, his 50-years-to-life sentence for counts 

1 and 4 was “disproportionate to the actual conduct and thus offends both 

state and federal provisions against cruel and unusual punishment.” 

1. “As Applied” Constitutional Challenges

“Unlike a ‘facial challenge,’ an ‘as applied’ challenge may seek ‘relief 

from a specific application of a facially valid statute or ordinance to an 

individual or class of individuals who are under allegedly impermissible 

present restraint or disability as a result of the manner or circumstances in 

which the statute or ordinance has been applied[.]’ ” (People v. D.L. (July 3, 

2023, A164432) __ Cal.App.5th __ [2023 WL 4342391, p. *7], quoting Tobe v. 

City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) “An ‘as applied’ challenge 

‘contemplates analysis of the facts of a particular case or cases to determine 

the circumstances in which the statute or ordinance has been applied and to 

consider whether in those particular circumstances the application deprived 

the individual to whom it was applied of a protected right.’ (Ibid.) ‘When a 

criminal defendant claims that a facially valid statute or ordinance has been 

applied in a constitutionally impermissible manner to the defendant, the 

court evaluates the propriety of the application on a case-by-case basis to 

determine whether to relieve the defendant of the sanction.’ (Ibid., citing 

Hale v. Morgan (1978) 22 Cal.3d 388, 404.)” (D.L., at p. *7.)
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2. Federal and State Constitutional Standards Regarding Punishment

“ ‘The Eighth Amendment to the United States Constitution applies to 

the states. [Citation.] It prohibits the infliction of “cruel and unusual” 

punishment. (U.S. Const., 8th Amend., italics added.) Article I, section 17 of 

the California Constitution prohibits infliction of “[c]ruel or unusual” 

punishment. (Italics added.)’ ” “A punishment is cruel or unusual in 

violation of the California Constitution ‘if, although not cruel or unusual in 

its method, it is so disproportionate to the crime for which it is inflicted that 

it shocks the conscience and offends fundamental notions of human dignity.’ 

[Citation.] Because it is the Legislature’s function to define crimes and 

prescribe punishments, the judiciary should not interfere ‘unless a statute 

prescribes a penalty “out of all proportion to the offense.” ’ ” (People v. Baker

(2018) 20 Cal.App.5th 711, 723 (Baker).)

Review of a state law claim of excessive punishment involves “(1) an 

examination of the nature of the offense and the offender, with particular 

attention to the degree of danger both pose to society; (2) a comparison of the 

punishment with the punishment California imposes for more serious 

offenses; and (3) a comparison of the punishment with that prescribed in 

other jurisdictions for the same offense.” (In re Palmer (2021) 10 Cal.5th 959, 

973.)

“In our tripartite system of government, the legislative branch defines 

crimes and prescribes punishment. [Citation.] It is therefore the rare case 

where a court could declare the length of a sentence mandated by the 

Legislature unconstitutionally excessive. [Citation.] Even so, it is the 

judiciary’s responsibility to condemn any punishment that is cruel or 

unusual. [Citation.] We independently review whether a punishment is 

cruel or unusual, considering any underlying disputed facts in the light most 
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favorable to the judgment.” (People v. Avila (2020) 57 Cal.App.5th 1134, 

1145–1146.)

B. Analysis

1. The “One Strike” Law

The One Strike law is intended “ ‘ “to ensure serious and dangerous sex 

offenders would receive lengthy prison sentences upon their first conviction,” 

“where the nature or method of the sex offense ‘place[d] the victim in a 

position of elevated vulnerability.’ ” ’ [Citation.]” (Reyes, supra, 246 

Cal.App.4th at p. 79.) “According to a general statement of purpose in the 

legislative history, the targeted group preys on women and children, cannot 

be cured of its aberrant impulses, and must be separated from society to 

prevent reoffense. [Citation.]” (People v. Wutzke (2002) 28 Cal.4th 923, 929–

930.)

The One Strike law applies to the crime of continuous sexual abuse of a 

child under the age of 14. (§§ 288.5, 667.61, subd. (b)(9). The jury convicted 

DeLeon on two counts—one against C.M. and one against S.M. The jury

found true the aggravating factors that DeLeon committed one of those 

crimes against more than one victim, and the victims were under the age of 

14. The trial court therefore applied the One Strike law and imposed an 

indeterminate sentence of 25 years to life on each count. (See § 667.61, 

subds. (e)(4), (j)(2), (o); see also People v. Alvarado (2001) 87 Cal.App.4th 178, 

186 [“Section 667.61 mandates indeterminate sentences of . . . 25 years to life 

for specified sex offenses that are committed under one or more ‘aggravating 

circumstances,’ such as when the perpetrator . . . sexually victimizes more 

than one person”].) 

In DeLeon’s original appeal, we remanded the case for resentencing 

because “the trial court ‘incorrectly believed that consecutive sentencing,” 
10

rather than imposing concurrent sentences, “was mandatory.” (DeLeon I,

supra, 2021 WL 5446280 at p. *20.) On remand, the trial court confirmed it 

understood that imposing a consecutive sentence was discretionary here, and 

then re-imposed the two consecutive sentences, for an aggregate sentence of 

50 years to life. We therefore turn to DeLeon’s arguments that the One 

Strike law is unconstitutional as applied to him here.

2. Article I, Section 17 of the California Constitution

a. Nature of the Offense and of the Offender 

We begin our discussion with the three-pronged analysis required by 

our state Constitution, whose protections exceed the federal standard. “ ‘A 

look at the nature of the offense includes a look at the totality of the

circumstances, including motive, the way the crime was committed, the 

extent of the defendant’s involvement, and the consequences of defendant’s 

acts. A look at the nature of the offender includes an inquiry into whether 

“the punishment is grossly disproportionate to the defendant’s individual 

culpability as shown by such factors as his age, prior criminality, personal 

characteristics, and state of mind.” ’ ” (Reyes, supra, 246 Cal.App.4th at 

p. 87.) 

Based on the record at trial in this case, the considerations described in 

Reyes do not indicate a grossly disproportionate punishment. DeLeon was an 

adult in his late 30’s when he repeatedly molested his wife’s young 

granddaughters over a period of years, starting when they were 10 and 6 

years old and living in DeLeon’s home. The “sexual abuse of children plainly 

is a grave and serious crime and few crimes . . . are more despicable because 

of the life-long consequences to the victims.” (See People v. Christensen

(2014) 229 Cal.App.4th 781, 806 [lewd conduct on a child “may have lifelong 

consequences to the well-being of the child”]; Baker, supra, 20 Cal.App.5th at 
11

p. 724 [“ ‘There exists a strong public policy to protect children of tender 

years’ ”].)

DeLeon attempts to rely on In re Rodriguez (1975) 14 Cal.3d 639

(superseded by statute as explained in In re Palmer, supra, 10 Cal.5th at 

p. 975), but that case presented a very different set of facts. By the time the 

defendant in Rodriguez filed his habeas corpus petition, he had already 

served 22 years in prison based on an indeterminate sentence of one-year to 

life on a single count of lewd conduct. The court found that 22 years of 

imprisonment was disproportionate to the petitioner’s conduct because only a

single incident of lewd conduct was involved, which “caused no physical harm 

to the victim” and “lasted only a few minutes.” The petitioner “was only 26 

years old at the time of the offense,” and his “conduct was explained in part 

by his limited intelligence” (with an IQ of 68), “his frustrations brought on by 

intellectual and sexual inadequacy, and his inability to cope with these 

problems.” (Rodriguez, at pp. 653–655.) 

DeLeon presents a stark contrast. DeLeon was a trusted family 

member and caretaker for the victims he molested—his wife’s 

granddaughters, who lived under the same roof. DeLeon was well past age 

26 when he committed his crimes. The record lacks evidence that he had any 

cognitive deficits that were somehow connected to his crimes.

Any sexual abuse of a child in isolation is a serious offense. 

Cumulatively, DeLeon’s offenses were a grave violation of trust. DeLeon’s 

multiple acts of molestation of multiple children are also more aggravated 

than the single incident in Rodriguez, and DeLeon’s conduct occurred over an 

extended period of time. (See Baker, supra, 20 Cal.App.5th at pp. 715, 727 

[15 years to life sentence for single count of oral copulation of six year old was 

not cruel or unusual; the nature of the offense was significantly more 
12

aggravated than the offense in Rodriguez].) The jury convicted DeLeon of 

two acts of continuous sexual abuse of two young children under the age of 

14. As our Supreme Court has recognized, persons convicted of sex crimes 

against multiple victims under the One Strike law “ ‘are among the most 

dangerous’ from a legislative standpoint.” (People v. Wutzke, supra, 28 

Cal.4th at pp. 930–931; see also People v. Estrada (1997) 57 Cal.App.4th 

1270, 1282 [“The penalty for a single offense cannot be properly compared to 

the penalty for multiple offenses”].) 

The trial court imposed a very severe sentence, but the record reflects 

that the court reflected on that fact in deciding to impose it. While there 

appears to have been no lasting physical harm to the children, continuous 

sexual abuse does not require such harm. (See § 288.5.) The offense 

“provide[s] ‘additional protection’ for victims of child molestation by assuring 

that ‘resident’ child molesters and others who repeatedly abuse a child over a 

prolonged period of time would not escape prosecution because of difficulties 

in pleading and proving with sufficient precision the dates, times, and 

particular nature of each molestation.” (People v. Rodriguez (2002) 28 

Cal.4th 543, 549.) Section 288.5 defines a criminal offense that is related to 

but different from pre-existing crimes concerning sexual abuse of minors and 

imposes a range of appropriate potential sentences (6, 12, or 16 years).

2

(People v. Alvarez (2002) 100 Cal.App.4th 1170, 1177.) 

2 For the first time in his reply brief, DeLeon suggests that because 

“recurring access” is an element of section 288.5, any justification for 

increased punishment based on the multi-year span of his offenses would 

have been an impermissible dual use of the facts. Of course, it is an 

established rule of review that appellate courts do not ordinarily consider 

issues raised for the first time in a reply brief. (American Indian Model 

Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 275–

276.) In any event, DeLeon’s suggestion is without merit. DeLeon received
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DeLeon’s argument that there was no evidence he used force to abuse 

his wife’s young granddaughters is similarly without merit. Preying upon 

children in their own home is an insidious form of abuse. “[C]hildren are 

‘uniquely susceptible’ to such abuse as a result of their dependence upon 

adults, smaller size, and relative naiveté. [Citation.] . . . [A]lso . . . young 

victims suffer profound harm whenever they are perceived and used as 

objects of sexual desire. [Citation.]” (People v. Martinez (1995) 11 Cal.4th 

434, 443–444.) Tragically, DeLeon’s conduct was apparently undeterred even 

by the presence of other family members living in the same house. The fact 

that continuous sexual abuse is listed among other One Strike offenses that 

do require an element of force is consistent with the legislative purpose of 

imposing significant penalties against resident child molesters. 

Here, C.M. “feared” that DeLeon “might get mad” if she told him to stop

inappropriately touching her. S.M. tried to “black out” the abuse and did not 

want to tell anyone about it; she was afraid that something might happen to 

her or other members of her family. Again, DeLeon was a trusted family 

member and lived in the same home in which the young victims lived. The

victims’ fear, reflected in the record, was heightened by their vulnerability. 

b. Punishments for More Serious Offenses in California

In order to argue that his sentence is out of proportion to his crimes, 

DeLeon compares his mostly over-the-clothes touching against C.M. and S.M.

(though he acknowledges that “one instance was described as having his 

hand inside C.M.’s pajamas”) with offenses involving “more serious” crimes,

such as assault with intent to commit rape, pimping or pandering for 

increased punishment not because of a dual use of the same facts but rather

based on the legislative determination that multiple acts of sexual 

molestation against multiple children described in section 288.5 require such 

punishment.
14

prostitution, or crimes involving sexual penetration or sodomy, which may 

have shorter terms. Courts rejected similar arguments in Baker, supra, 20 

Cal.App.5th at pages 727–729, and Reyes, supra, 246 Cal.App.4th at pages 

88–89. “ ‘Punishment is not cruel or unusual merely because the Legislature 

may have chosen to permit a lesser punishment for another crime. Leniency 

as to one charge does not transform a reasonable punishment into one that is 

cruel or unusual.’ ” (Baker, at p. 727.) “[T]he punishment under the One 

Strike law ‘is precisely tailored to fit crimes bearing certain clearly defined 

characteristics.’ ” (Reyes, at p. 89 [upholding sentence of life without the 

possibility of parole for forcible oral copulation and forcible rape during the 

commission of a burglary under the One Strike law].) 

Given DeLeon’s position of trust relative to his wife’s granddaughters, 

and the duration and extent of his misconduct, this is just not one of the 

“rarest of cases” where the sentence mandated by statute is 

unconstitutionally excessive. (People v. Martinez (1999) 76 Cal.App.4th 489, 

494; see Baker, supra, 20 Cal.App.5th at p. 730 [“A comparison of the 

mandatory 15-year-to-life sentence under section 288.7, subdivision (b) to the 

punishments for similar and more serious sex offenses in California does not 

suggest this is that ‘rarest of cases’ in which ‘the length of a sentence 

mandated by the Legislature is unconstitutionally excessive’ ”].)

c. Punishment for Similar Offenses in Other States

Finally, DeLeon’s comparison of his sentence to sentences available in 

other states is likewise unavailing. DeLeon argues that his sentence is cruel 

or unusual because, of the seven states that have “continuous abuse 

statutes,” only California and two other states have “a mandatory 
15

enhancement elevating a determinate term to a life sentence based on there 

being multiple victims.”3

The fact that not every state has a punishment framework to address 

offenders who target more than one child victim over a period of time does 

not compel the conclusion that it is unconstitutionally cruel or unusual. 

(People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California’s

constitutional proscription against cruel or unusual punishment “does not 

require California to march in lockstep with other states in fashioning a 

penal code. It does not require ‘conforming our Penal Code to the “majority 

rule” or the least common denominator of penalties nationwide.’ ” (Ibid.) 

Only “when there appears a significant disproportion between a challenged 

penalty and that imposed for the same crime by our sister states” should the 

penalty be deemed suspect. (People v. Wingo (1975) 14 Cal.3d 169, 179.) 

DeLeon has not satisfied his burden to show that his sentence under the One 

Strike law is excessive in comparison to the same offense in other 

jurisdictions. In sum, we reject DeLeon’s contentions that his sentence 

constitutes cruel or unusual punishment in violation of the California 

Constitution.

3. The Eighth Amendment 

DeLeon has not established his sentence constitutes cruel and unusual 

punishment under the Eighth Amendment either. As the court explained in 

Baker, supra, 20 Cal.App.5th at page 733, we “begin an Eighth Amendment 

analysis ‘by comparing the gravity of the offense and the severity of the 

sentence.’ [Citation.] ‘This analysis can consider a particular offender’s 

3 DeLeon identifies seven states as having “continuing abuse” statutes: 

Arizona, Delaware, Hawaii, Maryland, North Dakota, Tennessee, and Texas.

He identifies Texas and North Dakota as the other two states with a multiple 

victims enhancement.
16

mental state and motive in committing the crime, the actual harm caused to 

his victim or to society by his conduct, and any prior criminal history.’ 

[Citation.] Only in the rare case in which this threshold comparison leads to 

an ‘ “inference of gross disproportionality’ ” do we proceed to ‘compare the 

defendant’s sentence with the sentences received by other offenders in the 

same jurisdiction and with the sentences imposed for the same crime in other 

jurisdictions.’ ”

For the reasons explained above, a comparison of the relevant factors in 

this case does not lead to “an inference of gross disproportionality.” DeLeon

engaged in multiple sexual offenses against multiple, young, vulnerable 

victims, abusing his position of trust to do so. DeLeon has not shown that his

sentence violates the Eighth Amendment.

DISPOSITION

The judgment is affirmed. 
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_________________________

Markman, J.*

We concur:

_________________________

Stewart, P.J.

_________________________

Miller, J.

People v. DeLeon (A166290)

* Judge of the Alameda Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.