Filed 2/26/21 P. v. Havellana CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN SCOTTY HAVELLANA,

Defendant and Appellant.

 D077137

 (Super. Ct. No. SCN385075)

APPEAL from a judgment of the Superior Court of San Diego County, 

Harry M. Elias, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Daniel 

Rogers and Matthew Mulford, Deputy Attorneys General, for Plaintiff and 

Respondent.

A jury convicted Steven Scotty Havellana of 19 sex offense counts, all 

committed against his two nieces, and the trial court sentenced him to 

195 years to life in prison. On appeal, Havellana contends (1) his pretrial 
2

motion to suppress was erroneously denied and he was prejudiced by the 

admission at trial of statements he made to police; (2) three counts of sodomy 

are not supported by sufficient evidence of penetration; and (3) his sentence 

amounts to cruel and unusual punishment or an abuse of the trial court’s 

discretion because it is more time than he can serve in a lifetime. We reject 

each of Havellana’s contentions and affirm the judgment.

FACTS

A. Information

A second amended information charged Havellana with three counts of 

sodomy with E. (Pen. Code, § 288.7, subd. (a); counts 1-3),1 three counts of 

forcible lewd act on a child, E. (§ 288, sub. (b)(1); counts 4-6), three counts of 

lewd act on a child, E. (§ 288, subd. (a); counts 7-9), four counts of oral 

copulation on a child 10 years or younger, J. (§ 288.7, subd. (b); counts 10-13),

attempted sexual intercourse with a child aged 10 or younger, J. (§ 288.7, 

subd. (a), 664; counts 14-15), and four counts of lewd act on a child, J. (§ 288, 

subd. (a); counts 16-19). With respect to the forcible lewd act and lewd act 

charges (counts 4-9 and 16-19), it was further alleged that Havellana has 

been convicted in the present case of committing a sex offense against more 

than one victim (§ 667.61, subds. (b), (c), (e) [penalty of 15 years to life]), the 

crimes were committed against more than one victim (§ 1203.066, subd. (a)(7)

[ineligibility for probation]), and he had substantial sexual conduct with 

victims under 14 years of age (§ 1203.066, subd. (a)(8) [ineligibility for 

probation]).

1 Statutory citations are to the Penal Code unless otherwise specified.
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B. Trial

1. Mother

Mother testified her daughters are J., born in June 2002, and E., born 

in June 2004. She also has two sons, older than the girls. Mother’s older 

sister (Aunt) had three sons with her first husband; her third son was close in 

age to J. Aunt divorced her first husband and in 2004 married Havellana. 

Mother lived within a three-minute walk from Aunt and Havellana, 

and their children spent lots of time at both houses, including having 

frequent sleepovers. Mother testified that she worked nights so she could be 

with her children during the day, and when she worked nights her children 

would stay at Aunt’s. Aunt was like a second mother to Mother’s children. 

Aunt and Havellana divorced in 2014.

In 2017, E. disclosed to Mother that she had been molested by her 

“Uncle Scotty” and her cousin A. (Aunt’s son and Havellana’s stepson). E. did 

not want anyone else to know about the abuse but agreed to talk to a 

counselor. Shortly after, J. disclosed to Mother that she knew what E. was 

going through because it happened to her too. J. was crying hysterically 

when she told Mother, and then J. threw up. 

2. E.

E., now age 15, testified her “Uncle Scotty” began touching her 

inappropriately when she was around seven years old. It happened so often 

over the years that “it was normal,” she “kind of just assumed every time” she 

went to Aunt’s house “that was going to happen.” 

At Aunt’s house, E. typically slept on the couch, wearing a nightgown 

and underwear. Havellana would wake her while she was sleeping, and 

would sometimes “flip[]” her onto her stomach, and would “kind of like 

hover[]” over her, without fully putting his weight on her, but enough of his 
4

weight that she, as “a weak little girl,” could not get up. She testified he 

would touch her vagina with his hands. He would put his penis on her “butt.” 

Sometimes he would put his penis in her “butt” and move it “like up and 

down.” When asked to clarify, she agreed that, by “butt,” she meant “the 

opening, the anus in [her] bottom, is . . . where he put it.” She recalled 

having pain, both in her anus, but also in her back from his weight on her. 

She testified this happened “a lot” when she slept on the couch, but also once 

or twice when she was sleeping in Aunt’s bedroom—“he put his penis in [her] 

anus.” 

E. testified Havellana never said anything to her while it was 

happening, and she would be quiet because she thought if he did not know 

she was awake, “it ma[d]e it a little better . . . because [she] just didn’t want 

him to know.” The next day, he would act “like nothing happened.” She 

never talked about it and worried that if she did she might get in trouble. E.

testified the sexual abuse happened consistently from when she was seven to 

10 years old. 

E. testified that she thought Havellana treated her and J. better than 

the other kids: he “would give [them] an extra cookie or something,” but she 

felt he “kind of favored [her] sister.” 

E. testified that, at the same time these things were happening with 

her uncle, her cousin—who was older than her, but “not a grownup”—also 

touched her inappropriately; these things happened in the same time frame, 

but never at the same time. The incidents always occurred “one-on-one.” 

E. testified that it was difficult to talk about these things, she never 

wanted to discuss them, and she tried hard not to think about them. 

E. did not understand what Havellana was doing to her until she had a 

sex education class in fifth grade. She was scared other people would know 
5

what happened to her. She did not know that similar things were happening 

to J. until much later—soon before she disclosed the abuse to her mother—

even though she and J. were “best friend[s]” who told each other “everything.”

3. J.

J., now age 17, testified that she, her younger sister E., and their older 

brother frequently went to Aunt and “Scotty’s” house and often spent the 

night. Aunt had a pool in the backyard and a pool table, and all the cousins 

would have fun hanging out and building forts in the living room. J. would 

typically sleep on the couch in the living room or in her cousins’ bedroom. 

J. testified that Havellana always treated her with “slight favoritism”—

letting her have extra snacks, stay up late, or watch a movie that she “wasn’t 

necessarily allowed to watch.” She testified she knew he favored her because 

“[she] was his little slave,” “sexually speaking” because she “performed the 

acts that he wanted [her] to do.” 

J. testified Havellana started touching her inappropriately when she 

was five years old. He would touch her vagina with his hands when she was 

in the bathtub. She said “he never like fully penetrated [her] during that 

period,” but “it was . . . weird,” and it was not how her mother or father would 

wash her in the bath, and even at age five, she felt that it “wasn’t normal.” 

The inappropriate behavior continued until she was somewhere around

10 years old, when she started going through puberty. J. testified it 

happened every time she went to his home for a sleepover. 

When J. was six or seven, Havellana would put his penis to her vagina. 

Sometimes it would happen in her cousins’ room and sometimes he would 

carry her from her cousins’ room to another place—his room, the living room, 

the garage (which had a bedroom built in), or the pool table. Most of the time 

it happened in the living room or his bedroom. He would position her body in 
6

different positions: sometimes “laying on [her] stomach towards the edge of 

the bed,” or “on [her] back,” or “on [her] side.” He would “just rub [his penis] 

around, like he would with his hands, like on the outside. And then there 

was a couple of times where he would like try to put it in.” She said she could 

feel pain when he tried to do this. He would rub his penis inside of the labia 

and touch her clitoris with his penis. 

J. specifically recalled one incident when she was in her cousin’s bed, 

lying on her stomach and he was behind her, and he ejaculated on her back. 

She testified at that time she “had no idea what it was.” 

J. specifically recalled another incident when Havellana “had [her] put 

[her] hand on his penis and move it up and down and then he ejaculated.” 

She testified he put his hand on top of hers and “kind of direct[ed] [her] as to 

what [she] needed to do.” 

J. testified Havellana also “would just push [her] head down to [his 

penis] and . . . just put [her] mouth on it.” This happened “more than one 

time” and occurred when she was seven or eight years old. He also put his 

mouth on her vagina. 

J. testified the abuse occurred in a progression: first, Havellana put his 

fingers on her vagina in the bathtub, later he “put[] [her] vagina to his 

mouth,” and then he put his penis to her vagina. She also frequently 

observed him touching his penis with his hand. 

J. recalled watching a video in second or third grade about sexual 

assault, and she realized that was her “normalcy” and her “everyday life.” 

J. recalled one night, Havellana came into her cousins’ room but did not 

pick her up; instead he picked up her sister E. She testified, “I watched 

Scotty grab her, and I knew it happened to me, so I knew it was going to 

happen to her.” She did not talk about it with E. at the time. 
7

J. testified Havellana never discussed the behavior with her, never told 

her not to tell anybody or threatened her in any way. She did not want 

anyone to know what happened and wanted to “deal with it [her]self.” But on 

one occasion when E. told her she was going through something J. did not 

understand, J. told E., “You know, it happened to me too, so I do understand, 

I do, I get it.” 

J. testified that her cousin A. also molested her beginning when she 

was eight years old. She admitted previously telling A., “ ‘You robbed me of 

my youth and my innocence.’ ” J. testified she was “a thousand percent” 

confident that the incidents she testified about in this case were things that 

“Uncle Scotty did to [her].” 

4. Stipulated Evidence

Two stipulations were entered as evidence: first, Mother committed 

two separate petty theft offenses in 2016 and 2017; and second, A. was “held 

accountable” for his conduct with J. and E. in another court proceeding in 

2018 and 2019.

5. Detective Nevares

Detective Nevares of the Oceanside Police Department’s family 

protection unit testified he observed the forensic interviews of J. and E., 

which were conducted in January 2018. He also testified that he and his 

colleague Detective Baird interviewed Havellana in April 2018. A videotape 

of the interview was played for the jury.2 In the interview, Havellana

initially denied but then admitted having inappropriate contact with the 

2 The interview played for the jury was edited, with certain portions 

redacted pursuant to an order of the trial court, as discussed more fully in 

Discussion section I.A. post. Detective Nevares also testified that, when 

Havellana was arrested, his driver’s license was impounded; his license 

indicated that he was born in 1973. 
8

girls. He said it happened “less than 10 times,” and stated the first time it 

happened, he and J. were watching DVD’s and there was “just spooning” and 

“just some rubbing.” He admitted rubbing her “butt” but denied rubbing her 

breasts or vagina. She was “less than [10 years old]” at the time. 

He stated he gave all his children baths “the same way” with “a 

scrunchie and they’re all tickled.” 

Havellana admitted to “rubbing” and “grinding” with E., stating there 

was “[r]ubbing with my, uh, well, uh, my private, of course.” He stated he 

“just kind of touched her, but never-never in the private part. Maybe on the 

butt-butt-buttocks.” He stated he never did anything other than grind up 

against E. and stated it happened “so long ago” and he “wasn’t a monster.” 

He denied any penetration. 

He stated the behavior happened “more with [J.],” and described one 

time when his towel “fell off” and she was “curious” and “just stroked [his 

penis] for a little [while].” He stated he did not “actually ejaculate” because 

they were “distracted” or “interrupted,” which he said happened “[a] lot of 

times . . . .” He admitted “rub[bing]” J. “skin-to-skin” but denied putting his 

fingers inside her and said he “never penetrated.” 

He said E. never put her mouth on his penis, but he admitted he 

touched E.’s “private, her vagina, skin-to-skin,” “like once or something.” 

Havellana admitted he kissed J.’s “butt,” and said, “I’ve done like 

where I took some spit and just rubbed it [¶] . . . [¶] on my finger” and rubbed 

her anus and her vagina, but he denied putting his fingers inside her anus 

and denied putting his mouth on her vagina. He admitted he rubbed his 

penis on the outside of her vagina, touched her vagina with “a finger,” and 

put his penis in J.’s mouth “a couple times,” but also said it was just “one 

incident.” 
9

Detective Nevares asked Havellana if he was masturbating when he 

touched the girls, and Havellana said, “Yeah, well, I was hard and I mean, 

just aroused, of course.” He said, “yeah, and then—you know, some kind of 

distraction would come up or something, and I’ll just finish it off with a porn 

or something.” 

Havellana said this conduct occurred over the span of “a couple years” 

and reiterated it occurred more with J. 

Havellana told detectives he once saw his stepson A. “doing something 

weird” with J. She had her pants down and was bent over, and A. was 

pulling up his pants. Havellana asked them what was going on but claimed 

he did not know what A. was doing. 

Detective Nevares told Havellana he appreciated him talking to them 

and said he hoped Havellana felt better “getting it out.” Havellana told him 

he “always felt horrible [¶] . . . [¶] because there was always a devil on one 

shoulder . . . .” He said if J. and E. were there right now, he would apologize. 

Havellana wrote an apology letter to the girls, which was shared with 

the jury. In the letter, Havellana said: “Hey girls, I just want the two of you 

to know how sorry your uncle is. I know that we had many good times 

together like uncles and nieces should. I hope that we can ease all of the bad 

things that has happened in the past, or at least put it behind us. I just want 

the two of you to know I suffer every day for the bad things that I have done 

to the both of you, and I’ll always feel sorry for the horrible things that I’ve 

done. The two of you got bright futures ahead of you because both of you are 

beautiful and smart.” 

6. Dr. Jones

Doctor Jamie Jones, a clinical psychologist, testified as an expert 

regarding delayed disclosure by sexually abused children. Dr. Jones said she 
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had not met or evaluated any of the victims in the case and had not been 

provided discovery materials or other information about the case. She 

testified that delayed disclosure occurs when children who are assaulted do 

not immediately disclose what happened, and if they disclose at all, tend to 

do so years after the incident. Young children often do not understand what 

happened, so do not know what to report, and are raised to do what adults 

tell them to do. Because most child abuse happens in secret, it is an 

“unspoken message to the child that you’re not supposed to talk about it; if it 

was something to talk about, it would happen in front of everybody.” 

Dr. Jones testified that, when children are abused by someone they 

know, positive relationship factors prevent them from disclosing abuse. 

Children “have a wonderful ability to separate good from bad” and usually 

focus on the positive experiences rather than the negative ones. Children 

may also feel guilt or complicity in the behavior, which prevents them from 

disclosing the abuse. 

For young children who are frequently abused, it can be difficult for 

them to later distinguish one event from the next, and they may be unable to 

accurately identify how many times the abuse happened, or identify details 

distinguishing one event from another. 

7. Havellana

Havellana testified in his defense. He claimed he was falsely accused 

of molesting his nieces “because of what [A.] did to them” and “because [he] 

didn’t stop [A.]” He acknowledged that, in the videotaped interview, he 

admitted to “spoon[ing]” and “grind[ing]” on the girls, but he claimed he did 

not do those things. He said he “was making up lies.” 

Havellana stated that, on the morning of the interview, his roommate 

told him the police were there, and he became nervous. He went into his 
11

backyard “and smoked some marijuana” to calm down, but smoking 

marijuana made it “hard to hold a conversation.” 

Havellana claimed he was completely unaware police wanted to talk to 

him about J. and E.’s allegations, and when he heard the allegations, he 

thought of a time he caught A. and J. inside the garage bedroom, when A.

“was behind her mounted to her.” He testified that, in retrospect, he should 

have told J.’s father about the incident, but he did not tell anyone about the 

incident because he was protecting his son. He testified that the apology 

letter he wrote had nothing to do with his own actions, but rather was about 

not stopping A.’s behavior. 

8. Closing Arguments

The prosecutor argued that the girls’ testimony and Havellana’s own 

statements to the police collectively demonstrated he was guilty on all 

charged counts. Defense counsel argued it was not plausible that Havellana 

could have abused the girls in secrecy for so long in the family’s small, 

crowded house, and further argued the girls’ accounts of the abuse were not 

credible. Defense counsel argued that Havellana falsely confessed to protect

his son. 

C. Verdict and Sentencing

The jury delivered guilty verdicts on all counts and found true all 

allegations. The trial court sentenced Havellana to a total term of 195 years 

to life in prison. 
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DISCUSSION

I.

Motion to Suppress Statements to Police

A. Additional Background

As previously noted, Detectives Nevares and Baird interviewed 

Havellana after he was arrested and transported to the Oceanside Police 

Department. At the outset of the interview, detectives asked Havellana for 

his full name, birthdate, and address. After they chatted briefly, Detective 

Nevares read Havellana his rights:

“[Detective] Nevares: . . . Prior to us, even talking about 

anything [¶] . . . [¶] . . . I got to, administratively, I’ve got to 

tell you this. You, you have the right to remain silent. Um, 

any statements you make may be used against you. You 

have the right to the presence of an attorney, either 

retained or appointed free of charge before and during any 

questioning. Do you understand these due rights?

“Havellana: Uh, sure, yeah. Can you repeat it again?

“[Detective] Nevares: You have the right to remain 

silent [¶] . . . [¶] [a]nd you have the right to the presence of 

an attorney.

“Havellana: Okay.

“[Detective] Nevares: Okay? So I—I need to hear a yes. 

Do you understand those rights?

“Havellana: Yes, yes.”

After this admonition, detectives told Havellana that “being a good 

dad” and “paying for child support and all that other stuff . . . tells a lot about 

[his] character.” Detective Baird told Havellana he wanted to discuss why 

Havellana was “here” (at the police station) and asked Havellana if he 

wanted to talk to police about it. Havellana responded, “Yeah, sure . . . .” 
13

The detectives informed Havellana his nieces had reported he sexually 

molested them in his house and garage at night. Havellana denied touching 

the girls in a sexual manner and claimed he was “stunned” and “baffled.” 

Detectives told Havellana, “obviously [he was] under arrest” and “with 

absolute certainty [they knew] that something happened,” but they wanted to 

give him an opportunity “to explain things . . . from [his] perspective.”

Detective Baird asked, “[W]as it like every day, 100 times, all the time, like 

they’re trying to say? Or was it more like a couple incidental interactions?” 

Havellana stated that “if anything it was just like minor.” Detective Baird 

then compared Havellana’s position to being in “a train at the top of a hill”:

“[Detective] Baird: . . . [W]hat I want you to imagine right 

now is . . . you’re in a train at the top of a hill. You’re under 

arrest, so that train is going down that hill. And it’s 

picking up speed as it gets closer and closer to the bottom. 

We’ve already done—my partner [Nevares] here has done a 

very thorough investigation, and like I said, the reason 

you’re under arrest and this isn’t a hey, you’re free to go at 

the end of this type of conversation, is because of this 

thorough investigation. All that investigating really put a 

lot of speed into that train going to the bottom of the hill, 

and now we’ve at least gotten you to the point where you’re 

opening up a little bit, and what I want you to realize, 

when that train gets to the bottom of the hill, if you throw 

some brakes on it, if you tell us everything that really 

happened, it can slow down, you can safely make that turn 

and move on with life. But if you hold onto some truths, or 

you’re not forthcoming about everything, that train is going 

to crash, and this is going to be part of your future instead 

of part of your past. If you tell us everything right now—

because we’re already here, you’re already under arrest. 

The gig’s up. Everything moves into your past, and you 

move forward. You know what? Shit happened, it was 

minor, like you said, it wasn’t anything crazy, but it’s now 

in our past and you can move forward and never have to 

think about it again, just look, I made a mistake, it was 

stupid, and I don’t have to think about it ever again. But 
14

when you don’t say everything and when you hold things 

back, that is when it becomes part of your future, because 

more information comes out, and then you get rearrested 

for new charges. Then you get, you know, put through the 

system a second time, and you have to keep going through 

the ringer because instead of it being the past and you just 

tell us what’s up and paint the real picture, it’s going to be 

part of your future, and it’s something you’re always going 

to have to sweat, and we don’t want you to have to do that. 

And so you were saying that it was just—it was minor, but 

would—would you say it was in excess of like 100 times, or 

would you say it was 10 or less than that? 

“Havellana: I’d say it was like less than 10 times. 

“[Detective] Nevares: . . . That’s what we figured . . . . [T]o 

be honest with you, these . . . girls want to move past 

everything, too. . . . [T]hey don’t want anything to do with 

it, you know? And I’m just trying to button up some stuff. 

That’s why we . . . didn’t take you in a patrol car, right? 

This isn’t like a formal [¶] . . . [¶] crazy, crazy thing, you 

know what I’m saying? You know . . . we don’t go after 

people in . . . suits, right? We go out for them in uniforms 

and in patrol cars, right? And so I’m just trying to close 

some loose ends, get . . . these girls some closure so that 

we’re done, and you’ll never have to see me again, I’ll never 

have to see you again, but I need to . . . finish out this 

report and get this thing taken care of. You understand 

what I’m saying? And so [¶] . . . [¶] that’s why I appreciate 

you being honest with us, you know, because all I want to 

do is make sure that it’s documented[,] what happened, and 

it doesn’t happen ever again. You understand me? 

“Havellena: . . . I totally understand you, sir. 

“[Detective] Nevares: So tell me what happened?” 

Havellana then proceeded to make the admissions discussed ante in 

Facts, Section B.5.

Defense counsel moved in limine to exclude Havellana’s statements to 

the police. As relevant to the issues on appeal, Havellana argued that (1) the 
15

questions regarding his birthdate and address were incriminating and made 

before detectives administered an admonition under Miranda v. Arizona 

(1966) 384 U.S. 436 (Miranda), (2) Havellana did not understand or 

intelligently waive his Miranda rights, and (3) his incriminating statements 

were involuntary “due to the deception, leniency and threats” of the 

detectives and due to the detective’s “impermissibl[e] attempt[] to soften 

Mr. Havellana up by complimenting . . . his character.”3

The prosecutor countered that, in the interview, Havellana expressed 

he understood his rights and then spoke freely with officers about the 

charged incident. Even if some of the officers’ statements were misleading, 

they were not impermissible because they were not coercive and not 

reasonably likely to produce an untrue statement, and the officers’ urging 

Havellana to tell the truth did not make the confession involuntary. 

The trial court ruled (1) the statements made prior to the Miranda

admonition were not incriminating, with the exception of Havellana’s 

birthdate and address, which the court ordered to be stricken; (2) the preMiranda statements made by the officers were not improper softening up;

(3) the Miranda admonition was sufficient and Havellana waived his rights;

and (4) during the course of the interview, Havellana was not improperly 

3 Havellana also argued the interrogation used an improper “two-step” 

interrogation tactic under Missouri v. Seibert (2004) 542 U.S. 600, 620-621, 

but he does not reassert that argument on appeal. 
16

threatened, coerced, or told he would receive leniency, such as to render his 

statements involuntary.4

Havellana now contends his pretrial suppression motion was 

erroneously denied, his statements to detectives should have been excluded 

at trial, and the error was prejudicial. He contends the record does not 

support the conclusion his statements were made after a knowing, intelligent 

waiver of his Miranda rights or that his statements were voluntarily given. 

B. Applicable Law

The Fifth Amendment guarantees that “[n]o person shall 

be . . . compelled in any criminal case to be a witness against himself.” (U.S. 

Const., 5th Amend.) In Miranda, the United States Supreme Court held that 

“without proper safeguards the process of in-custody interrogation of persons 

suspected or accused of crime contains inherently compelling pressures which 

work to undermine the individual’s will to resist and to compel him to speak 

where he would not otherwise do so freely. In order to combat these 

pressures and to permit a full opportunity to exercise the privilege against 

self-incrimination, the accused must be adequately and effectively apprised of 

his rights and the exercise of those rights must be fully honored.” (Miranda, 

supra, 384 U.S. at p. 467.) A person questioned by law enforcement after 

being “taken into custody” must first be warned that he or she has the right 

to remain silent, that any statements that he or she makes may be used 

4 With respect to the detective’s train analogy, the trial court remarked, 

“While I may not be enamored with the manner in which they did it, I don’t 

find the nature of those statements are sufficient to have so overridden the 

defendant’s willingness or opportunity to talk that he was either doing so 

because he was coerced or doing so because he thought something more 

lenient would happen.” 
17

against the person, and that he or she has a right to the presence of an 

attorney, either retained or appointed. (Id. at p. 444.) 

“ ‘To establish a valid Miranda waiver, the prosecution bears the 

burden of establishing by a preponderance of the evidence that the waiver 

was knowing, intelligent, and voluntary under the totality of the 

circumstances of the interrogation.’ ” (People v. Duff (2014) 58 Cal.4th 527, 

551 (Duff).) 

In addition, “[b]oth the state and federal Constitutions bar the 

prosecution from introducing a defendant’s involuntary confession into 

evidence at trial.” (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).) 

“As with Miranda waivers, the People bear the burden of establishing by a 

preponderance of the evidence the voluntariness of a confession.” (Duff, 

supra, 58 Cal.4th at p. 551.)

“In reviewing the trial court’s denial of a suppression motion on 

Miranda and involuntariness grounds, ‘ “ ‘we accept the trial court’s 

resolution of disputed facts and inferences, and its evaluations of credibility, 

if supported by substantial evidence. We independently determine from the 

undisputed facts and the facts properly found by the trial court whether the 

challenged statement was illegally obtained.’ ” ’ [Citations.] Where, as was 

the case here, an interview is recorded, the facts surrounding the admission 

or confession are undisputed and we may apply independent review.” (Duff, 

supra, 58 Cal.4th at p. 551.)

C. Analysis

The parties do not dispute that Havellana was interrogated by police 

detectives while in custody after his arrest and Miranda therefore applies. 

(Miranda, supra, 384 U.S. at p. 478 [for the Miranda rule to apply, there 
18

must be an interrogation by a police officer (or the officer’s agent) while the 

suspect is in police custody].)

The record supports the trial court’s determination that Havellana’s 

waiver of his Miranda rights was “ ‘knowing, intelligent, and voluntary under 

the totality of the circumstances of the interrogation.’ ” (Duff, supra, 

58 Cal.4th at p. 551.) After brief, introductory questions, police detectives 

advised Havellana he had the right to remain silent, that any statements he 

made may be used against him, and that he had a right to counsel, either 

retained or appointed free of charge, during any questioning. (See Miranda, 

supra, 384 U.S. at p. 444.) When asked if he understood these rights, 

Havellana replied, “[Y]eah,” and then asked, “Can you repeat it again?” After 

the detective reiterated he had the right to remain silent and the right to the 

presence of an attorney, Havellana stated, “Okay,” and when directly asked if 

he understood his rights, responded, “Yes, yes.” The record demonstrates 

Havellana adequately understood his rights. He expressed understanding 

before asking for the statement to be repeated, and then reiterated his 

understanding. He requested no additional information and did not express 

any confusion regarding his rights.5 Although he did not expressly articulate 

5 In a footnote in his opening brief, Havellana mentions his use of 

marijuana prior to making his statements. Havellana did not argue his 

marijuana use rendered his confession involuntary in the trial court, and 

does not develop this argument on appeal. It is therefore forfeited. (People v. 

Polk (2010) 190 Cal.App.4th 1183, 1194 [“unless a defendant asserts in the 

trial court a specific ground for suppression of his or her statements to police 

under Miranda, that ground is forfeited on appeal, even if the defendant 

asserted other arguments under the same decision”]; People v. Koenig (2020) 

58 Cal.App.5th 771, 796, fn. 30 [arguments raised in a footnote on appeal are 

forfeited]; see also People v. Jackson (1989) 49 Cal.3d 1170, 1189 [a 

defendant’s voluntary ingestion of alcohol or drugs alone does not establish a 

lack of capacity to waive Miranda rights].) 
19

his desire to waive his rights, he willingly talked and continued answering 

detectives’ questions during the interview. When asked directly if he wanted 

to discuss why he was arrested and in custody, Havellana responded 

affirmatively. At no point during this interview did Havellana ask to stop 

talking, invoke his right to an attorney, or express an unwillingness to 

continue answering questions. “Law enforcement officers are not required to 

obtain an express waiver of a suspect’s Miranda rights prior to a custodial 

interview. [Citation.] Rather, a valid waiver of Miranda rights may, as here, 

be inferred from the defendant’s words and actions.” (People v. Cunningham

(2015) 61 Cal.4th 609, 642 (Cunningham).) Havellana’s statements and 

actions here—including his willingness to answer the detectives’ questions, 

after being advised of and stating he understood his rights—establish an 

implied waiver of his Miranda rights. (Ibid.; People v. Gonzales (2012) 

54 Cal.4th 1234, 1269 [“Here, the videotape provides substantial evidence 

supporting the trial court’s finding of an implied waiver. The court’s ruling 

was also legally correct.”].) 

Havellana alternatively argues his statements were involuntary in 

light of a combination of factors, including the detectives’ alleged improper

“ ‘softening up,’ ” use of deception, and what Havellana contends were 

“deceptive inferences of leniency” amounting to an implied promise of 

favorable treatment.

“The test for the voluntariness of a custodial statement is whether the 

statement is ‘ “the product of an essentially free and unconstrained choice” ’ 

or whether the defendant’s ‘ “will has been overborne and his capacity for 

self-determination critically impaired” ’ by coercion.” (Cunningham, supra, 

61 Cal.4th at p. 642.) “Relevant considerations include ‘ “the crucial element 

of police coercion [citation]; the length of the interrogation [citation]; its 
20

location [citation]; its continuity” as well as “the defendant’s maturity 

[citation]; education [citation]; physical condition [citation]; and mental 

health.” ’ ” (Id. at pp. 642-643.)

The record here establishes that Havellana’s will was not overborne 

and his statements were not coerced. Relying primarily on People v. 

Honeycutt (1977) 20 Cal.3d 150, Havellana contends the detectives employed 

improper “ ‘softening up’ ” tactics because, at the outset of the interview, they 

told him he was a good dad with good character because he provided financial 

support to his ex-wife for the children. In Honeycutt, the detectives engaged 

in a good cop/bad cop or “Mutt and Jeff” routine, “where one officer acts 

aggressively and hostile while a second officer, when alone with the suspect, 

seeks to gain his confidence by disapproving his partner’s behavior.” (Id. at 

p. 160, fn. 5.) The defendant was initially hostile to one detective, calling him 

racial epithets and spitting on him. (Id. at p. 158.) After that detective left, 

another detective, who had known the defendant for about 10 years, had a 

30-minute unrecorded discussion with the defendant—without administering 

Miranda warnings. (Ibid.) They discussed past events and former 

acquaintances, and the detective made disparaging comments about the 

victim. (Id. at pp. 158-161.) The Honeycutt court found the use of these 

coercive strategies before a Miranda advisement rendered the subsequent 

waiver involuntary, stating that “[w]hen the waiver results from a clever 

softening-up of a defendant through disparagement of the victim and 

ingratiating conversation, the subsequent decision to waive without a 

Miranda warning must be deemed to be involuntary.” (Id. at p. 160.) 

Havellana’s reliance on Honeycutt is misplaced, as the decision “has 

been limited to its facts” by our Supreme Court. (People v. Krebs (2019) 

8 Cal.5th 265, 306.) “That holding finds no application in this case: 
21

[detectives] did not disparage the victims, engage in conversations that could 

be fairly characterized as ‘ingratiating,’ or fail to give defendant Miranda

warnings before he confessed.” (Ibid.; see also People v. Molano (2019) 

7 Cal.5th 620, 661-662 [rejecting defendant’s claim that detectives used 

improper softening up tactics during transportation of arrestee from state 

prison to local facility, despite their disparagement of the victim and 

appealing to defendant’s desire to mend his relationship with his children]; 

People v. Gurule (2002) 28 Cal.4th 557, 602 [declining to apply Honeycutt

when there was no evidence “that the manner in which [the police] engaged 

in small talk overbore defendant’s free will”]; People v. Kelly (1990) 51 Cal.3d 

931, 954 [finding Honeycutt “clearly distinguishable” when “[n]o misconduct 

of [the type described in Honeycutt] occurred here”].) Havellana was not 

initially hostile with the detectives or unwilling to talk, and the detectives did 

not have or exploit a prior relationship with him. No improper softening up 

occurred when the detectives—in a recorded conversation—briefly engaged in 

small talk regarding his character and provision of financial support to his 

family. The detectives’ actions, apparently designed to build rapport with 

Havellana, were not impermissible. (People v. McCurdy (2014) 59 Cal.4th 

1063, 1081, 1086-1087 [asking about the suspect’s “upbringing, his decision to 

join the Navy, and his hobbies” was held to be permissible “to establish a 

rapport”]; People v. Williams (2010) 49 Cal.4th 405, 447 (Williams) [“Nor is it 

inherently coercive for an interrogator to attempt to form a rapport with the 

suspect.”].) 

Havellana also contends that detectives improperly used deception 

during the interrogation by suggesting they had not previously spoken to his 

ex-wife and stating that “ ‘[t]his isn’t formal.’ ” “In assessing allegedly 

coercive police tactics, ‘[t]he courts have prohibited only those psychological 
22

ploys which, under all the circumstances, are so coercive that they tend to 

produce a statement that is both involuntary and unreliable.’ ” (People v. 

Smith (2007) 40 Cal.4th 483, 501 (Smith).) Here, the detectives stated that 

the situation was not “like a formal [¶] . . . [¶] crazy thing” where the police 

“go after” a suspect “in uniforms and in patrol cars.”6 But by this point, 

Havellana had already been told he was under arrest, and he had already 

begun to make damaging statements—albeit in a manner that attempted to 

minimize his conduct. Even if the reference to the situation not being 

“formal” at this stage was ambiguous, the circumstances Havellana 

emphasizes do not amount to coercion which renders his statements 

involuntary. (See People v. Chutan (1999) 72 Cal.App.4th 1276, 1280

[subterfuge is not necessarily impermissible and is not the same as coercive 

conduct].) Similarly, any failure by the detectives to acknowledge they had 

talked to Havellana’s ex-wife, who worked in an administrative role at the 

police station, was inconsequential and Havellana does not explain the 

purported significance of it.7 Any deception in this regard was not likely to 

produce a false confession. (Williams, supra, 49 Cal.4th at p. 443 [deception 

may not be of the type reasonably likely to produce an untrue statement].) 

Finally, the detectives’ suggestion that they were awaiting results from “the 

lab” does not assist Havellana. During the interrogation, detectives twice 

6 The detectives interrogating Havellana were not in uniform. 

7 Havellana states in his opening brief that the detectives “pretended not 

to know appellant’s ex-wife, who worked at their police station,” but he does 

not provide a record citation establishing that the detectives did in fact know 

her. More importantly, Havellana never explains why this fact is material 

even assuming it is true—not in his opening brief and not in his reply brief, 

even after the People pointed out that any evasiveness regarding the ex-wife 

was immaterial. 
23

made vague reference to receiving “a call . . . from the lab” earlier that 

morning. At trial, Detective Nevares acknowledged there was no physical 

evidence and the references to the lab were “a ruse.” These statements were 

not coercive and did not render Havellana’s Miranda waiver involuntary. 

(People v. Farnam (2002) 28 Cal.4th 107, 182 [false statements by police that 

defendant’s fingerprints had been found on victim’s wallet did not render 

defendant’s confession involuntary]; Smith, supra, 40 Cal.4th at p. 505 [false 

statement by detectives that a gunshot residue test showed that the 

defendant had fired a gun recently was not so coercive as to produce an 

involuntary or unreliable statement].) 

Havellana’s contention that the detective’s train analogy amounted to 

an implied promise of leniency, rendering his statements inadmissible, also is 

unpersuasive. “ ‘[W]here a person in authority makes an express or clearly 

implied promise of leniency or advantage for the accused which is a 

motivating cause of the decision to confess, the confession is involuntary and 

inadmissible as a matter of law.’ [Citation] An improper promise ‘must be 

causally linked’ to the defendant’s confession to warrant exclusion under the 

Fifth Amendment.” (People v. Wall (2017) 3 Cal.5th 1048, 1066.) “The 

requisite causal connection between promise and confession must be more 

than ‘but for’: causation-in-fact is insufficient.” (People v. Benson (1990) 

52 Cal.3d 754, 778.) As set forth ante, the detectives stated Havellana was 

under arrest, so the “train” he was in was going down a hill and picking up 

speed, and if he “[told officers] everything that really happened” he could 

“turn [the corner]” and “move on with life,” but if he was not forthcoming, he 

may be subject to rearrest for future charges. There were no promises of 

leniency, express or implied, that rendered his subsequent admissions and 

confession involuntary and inadmissible. The detectives did not state or 
24

suggest that he would receive leniency or favorable treatment. On the 

contrary, the detectives emphasized Havellana was “already under arrest” 

and would not be “free to go” at the end of the conversation and stated, “[t]he 

gig [is] up.” Our Supreme Court has “made clear that investigating officers 

are not precluded from discussing any ‘advantage’ or other consequence that 

will ‘naturally accrue’ in the event the accused speaks truthfully about the 

crime.” (People v. Ray (1996) 13 Cal.4th 313, 340.) “[M]erely advising a 

suspect that it would be better to tell the truth, when unaccompanied by 

either a threat or a promise, does not render a confession involuntary.” 

(People v. Davis (2009) 46 Cal.4th 539, 600; see Linton, supra, 56 Cal.4th at 

p. 1178 [“There was nothing coercive in the officers urging defendant to tell 

the truth and informing defendant of the obvious point that the sooner he 

told the truth, the sooner the interview would finish.”].) 

Havellana’s reliance on People v. Cahill (1994) 22 Cal.App.4th 296

(Cahill) is misplaced. In Cahill, the interrogating officer provided the 

defendant a detailed, “materially deceptive” account of the law of murder and 

suggested the defendant could avoid a charge of first degree homicide if he 

admitted to his role in the killing. (Id. at p. 315; see also id. at p. 314 [“[t]he 

clear implication of [officers’] remarks [was] that defendant would be tried for 

first degree murder unless he admitted that he was inside the house and 

denied that he had premeditated the killing”].)8 Unlike Cahill, the detectives 

here were not impermissibly implying that Havellana would receive lenient 

treatment in exchange for a confession. Nor were the statements threatening 

or intimidating. (See People v. Holloway (2004) 33 Cal.4th 96, 117

[“suggesting that defendant might benefit in an unspecified manner” was not 

8 The detectives omitted reference to the felony-murder doctrine. 

(Cahill, supra, 22 Cal.App.4th at p. 315.) 
25

improper]; People v. Spears (1991) 228 Cal.App.3d 1, 27 [a detective’s postMiranda comments to a defendant that it was “ ‘time [he] got this off [his] 

chest’ ” was not improper].) 

Havellana additionally argues he had no experience with law 

enforcement interrogation and may not have “understood the implications of 

the officers’ questioning.” The record does not support the contention that he 

did not understand the situation and interrogation. As discussed, the 

detectives provided complete and accurate Miranda warnings, and Havellana 

expressed his understanding through his words and actions. “[T]he fact that 

he lacked experience with the criminal justice system did not invalidate his 

waiver or render his subsequent statements involuntary in the circumstances 

here.” (People v. Suarez (2020) 10 Cal.5th 116, 161.) 

In sum, based on the totality of the circumstances, we conclude 

Havellana knowingly and voluntarily waived his Miranda rights, and his 

statements to the police were voluntary and not the result of coercion, 

deception, or promises of leniency.

II.

Sufficiency of the Evidence Claim

Havellana contends his convictions in counts 1 through 3 for sodomy by 

a person over the age of 18 with a child 10 years of age or younger (§ 288.7, 

subd. (a)) must be reversed for insufficient evidence. Havellana claims E.’s 

“generic, conclusory description was insufficient to prove the element of 

penetration beyond a reasonable doubt.” We disagree.

Havellana was charged with three separate counts of sodomy with E.: 

first time in the living room (count 1), last time in the living room (count 2), 

and one time in Havellana’s bedroom (which he shared with Aunt) (count 3). 

On those counts, the jury was instructed that the prosecution was required to 
26

prove that E. was 10 years of age or younger, that Havellana was over 18, 

and Havellana engaged in an act of sodomy, which is “any penetration, no 

matter how slight, of the anus of one person by the penis of another person. 

Ejaculation is not required.” (CALCRIM No. 1127.)9

In response to Havellana’s challenge to the sufficiency of the evidence 

supporting his conviction, we must determine “ ‘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.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) We must 

“determine whether [the record] discloses substantial evidence—that is, 

evidence that is reasonable, credible, and of solid value—from which a 

reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt. [Citations.] The standard of review is the same in cases in which the 

People rely mainly on circumstantial evidence. [Citation.] ‘Although it is the 

duty of the jury to acquit a defendant if it finds that circumstantial evidence 

is susceptible of two interpretations, one of which suggests guilt and the 

9 After the jury retired to deliberate, they sent a note, asking, “Definition 

of [s]odomy requires penetration. If the victim’s orifice is too small for 

‘success,’ does ‘thrusting’ constitute penetration? Is contact enough for slight 

penetration?” In response, the trial court instructed the jury: “Sodomy 

requires something more than penetration of the buttocks, but does not 

require penetration past the anal verge or into the anal canal. Sexual 

penetration requires penetration of the tissues that surround and encompass 

the lower border of the anal canal—that is, it requires penetration past the 

buttocks and into the perianal area but does not require penetration beyond 

the perianal folds or anal margin. Mere penetration of the buttocks is not 

sufficient to establish penetration of the anal opening. ‘An intrusion into the 

space between a person’s buttocks, while perhaps a necessary step on the 

path to intrusion of the anal opening, is not, in itself, an intrusion into the 

anal opening.’ ” Havellana does not contend the jury was erroneously 

instructed.
27

other innocence [citations], it is the jury, not the appellate court which must 

be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” (People v. 

Stanley (1995) 10 Cal.4th 764, 792-793.) “A reversal for insufficient evidence 

‘is unwarranted unless it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. 

Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) 

Evidence supports the jury determination that Havellana sodomized E.

on (at least) the three charged occasions. Fifteen-year-old E. testified 

Havellana would wake her while she was sleeping on the couch, “flip[]” her 

onto her stomach, and “kind of like hover[]” over her so that she could not get 

up. She testified that sometimes he would put his penis “on [her] butt” and 

other times he would put it “in” (italics added). E. stated that, when she said 

he put his penis “in [her] butt,” she meant “the anus in [her] bottom.” She 

described having pain in her anus afterward. She testified this happened “a 

lot” when she slept on the couch in the living room, but also at least once 

when she was sleeping in Aunt’s bedroom—“he put his penis in [her] anus.” 

E. testified the sodomy occurred consistently from when she was age seven to 

10 years old. 

Contrary to Havellana’s argument, E.’s testimony is sufficient to 

establish he sodomized her on (at least) three occasions. (People v. Paz (2017) 

10 Cal.App.5th 1023, 1040 (Paz) [testimony of a single witness may be 

substantial evidence to support a verdict].) Sodomy is “ ‘sexual conduct 

consisting of contact between the penis of one person and the anus of another 

person’ ” where “ ‘[a]ny sexual penetration, however slight, is sufficient.’ ” (Id. 

at p. 1030, quoting § 286, subd. (a) [defining sodomy].) “[S]exual penetration” 

is “ ‘the act of causing the penetration, however, slight, of the . . . anal 

opening.’ ” (Paz, at p. 1033, quoting § 289, subd. (k)(1) [sexual penetration].) 
28

The term “anal opening” is broadly defined to include “the perianal folds 

[that] radiate from the anus [and] comprise the outer boundary of the anus.” 

(Paz, at p. 1037.) Thus, while penetration of only the buttocks is insufficient 

to constitute sodomy, penetration past the buttocks and into the perianal 

area is all that is required; penetration beyond the perianal folds or anal 

margin is not required. (Id. at pp. 1037-1038 & fn. 13; see People v. Quintana

(2001) 89 Cal.App.4th 1362, 1366-1371 [addressing sexual penetration of the 

vagina].) E.’s testimony distinguished between the times Havellana put his 

penis “on [her] butt” and when he put it “in,” and emphasized he put it “in” 

“the anus in [her] bottom,” and this caused her pain “in [her] anus.” It 

happened “a lot” on the couch in the living room and at least once in the 

bedroom, on a consistent basis when she was between the ages of seven and 

10. E.’s testimony thus supports the three separate charges of sodomy: first 

time in the living room (count 1), last time in the living room (count 2), and in 

the bedroom (count 3). 

Havellana claims E.’s testimony was shaped by the prosecutor’s use of 

the term “ ‘inside the anus.’ ” We reject Havellana’s suggestion that E.’s 

testimony regarding penetration was not her own, but rather was influenced 

by the prosecutor’s terminology during questioning. E. was 15 years old at 

the time of trial. She clearly testified “yes,” when asked, “[s]o the opening, 

the anus in your bottom, is that where he put it?” In Paz, the Court of 

Appeal “caution[ed] prosecutors not to use vague, euphemistic language and 

to ask follow[-]up questions where necessary.” (Paz, supra, 10 Cal.App.5th at 

p. 1038.) That is what occurred here. We reject Havellana’s claim that the 

prosecutor influenced E.’s testimony, or that E.’s testimony does not 

constitute substantial evidence of penetration. We therefore reject 
29

Havellana’s argument that insufficient evidence supports the three sodomy 

convictions. (Zamudio, supra, 43 Cal.4th at p. 357.)

III.

Cruel and Unusual Punishment

A. Additional Background

A probation officer prepared a report in anticipation of sentencing. 

Using the Static-99R (SARATSO) risk assessment analysis, the probation 

officer estimated that Havellana’s relative risk of reoffending was below 

average.10 The probation officer identified one possible circumstance in 

mitigation, that Havellana had no prior criminal record (Cal. Rules of Court, 

rule 4.423(b)(1)), and two possible circumstances in aggravation, the manner 

in which the crimes were carried out indicates planning (id., rule 4.421(a)(8)) 

and the charged counts captured conduct including the first and last 

occurrences of each specific offense, while the entirety of the conduct occurred 

more than twice (id., rule 4.408(a)). The probation officer recommended 

imposing a total prison term of 20 years plus 240 years to life. 

The prosecution submitted a sentencing statement arguing additional

factors in aggravation should be considered by the court: the victims were 

particularly vulnerable as they were under the age of 10 (Cal. Rules of Court, 

rule 4.421(a)(3)); the manner in which the crimes were carried out over the 

span of years indicated some level of grooming, which indicated some 

planning, sophistication, or professionalism (id., rule 4.421(a)(8)); and the 

defendant took advantage of a position of trust or confidence to commit the 

offenses, abusing his nieces when they were entrusted to be in his home (id., 

rule 4.421(a)(11)). The prosecution identified a single mitigating factor, that 

10 SARATSO stands for state authorized risk assessment tools for sex 

offenders.
30

Havellana had no prior criminal record. (Id., rule 4.423(b)(1).) The 

prosecution requested that the court impose a total sentence of 285 years to 

life in state prison. 

At sentencing, Havellana asserted numerous objections, including

objections on constitutional due process and cruel and unusual punishment 

grounds. The trial court indicated that, based on the forcible sexual offense 

charges, Havellana was statutorily ineligible for probation (§ 1203.066, 

subd. (a)(7), (8)), and stated that even if the court had discretion to grant 

probation, it would decline to do so based on the nature of the offenses. The 

trial court further indicated that the forcible sexual offenses by statute were 

mandatory consecutive (§ 667.6, subds. (d), (e)(5)), and stated that even if the 

court had discretion to grant concurrent sentences on those offenses, it would 

decline to do so, based on the factor in aggravation “as it relates to a violation 

of [a] position of trust.” 

The trial court sentenced Havellana to consecutive 25-years-to-life 

terms on counts 1, 2, and 3 (for violations of § 288.7, subd. (a)) (comprising 

three consecutive 25-years-to-life terms), consecutive 15-years-to-life terms 

on counts 10-13 (for violations of § 288.7, subd. (b)) and counts 16-19 (for 

violations of § 288, subd. (a)) (comprising eight consecutive 15-years-to-life 

terms), and imposed terms on counts 4-9 and 14-15, but stayed them 

pursuant to section 654, for a total term of 195 years to life in prison.

Havellana now contends his 195-years-to-life sentence constitutes cruel 

and unusual punishment in violation of both the California and United 

States Constitutions. (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)

B. Analysis

“Whether a punishment is cruel and/or unusual is a question of law 

subject to our independent review, but underlying disputed facts must be 
31

viewed in the light most favorable to the judgment.” (People v. Palafox (2014) 

231 Cal.App.4th 68, 82.)

The Eighth Amendment of the United States Constitution forbids only 

sentences that are “grossly disproportionate” to the crime. (Ewing v. 

California (2003) 538 U.S. 11, 20 (Ewing).) This proportionality principle is 

narrow when applied in noncapital cases.11 (Ibid.) Under the California 

Constitution, a punishment is cruel or unusual “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.” (In re Lynch (1972) 8 Cal.3d 410, 424; see People v. Wilson

(2020) 56 Cal.App.5th 128, 167 (Wilson).)

“Lynch describes three ‘techniques’ to determine whether a sentence is 

so disproportionate to the crime as to constitute cruel or unusual 

punishment. [Citation.] We first consider ‘the nature of the offense and/or 

the offender, with particular regard to the degree of danger both present to 

society.’ [Citation.] Next, we compare the sentence to ‘punishments 

prescribed in the same jurisdiction for different offenses which, by the same 

test, must be deemed more serious.’ [Citation.] Finally, we compare the 

sentence ‘with the punishments prescribed for the same offense in other 

jurisdictions having an identical or similar constitutional provision.’

[Citation.] The weight afforded to each prong may vary by case. [Citation.] 

‘Disproportionality need not be established in all three areas.’ ” (People v. 

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

11 We reject Havellana’s contention his sentence should be analyzed 

under Coker v. Georgia (1977) 433 U.S. 584. As that case concerns 

disproportionality of a sentence of death for the crime of rape of an adult 

woman, it is inapt here. 
32

Here, the nature of the offenses—sexual offenses committed against 

young children—is of considerable seriousness. California courts have long 

recognized “a strong public policy to protect children of tender years.” (People 

v. Olsen (1984) 36 Cal.3d 638, 646.) “Along a spectrum ranging from murder, 

mayhem, and torture on one end to petty theft on the other, ‘lewd conduct on 

a child may not be the most grave of all offenses, but its seriousness is 

considerable.’ ” (Baker, supra, 20 Cal.App.5th at pp. 724-725.)

Havellana acknowledges the crimes in this case “were no doubt 

serious,” but contends they are not as serious as first degree murder, which 

he observes carries a sentence of “only 25 years to life.”12 Havellana

contends the sentence imposed serves no legitimate penal purpose and is 

disproportionate to the crimes committed. Citing Ewing, supra, 538 U.S. at 

pages 29-30, he argues that “life sentences of this sort are primarily intended 

to target those who have not only displayed much more egregious forms of 

criminal behavior but who have also shown a clear unwillingness to conform 

to society’s norms by pursuing a life of crime despite repeated criminal 

sanctions.”13 Havellana neglects, however, that he was convicted and 

sentenced not for a single offense, but for three separate counts of sodomy of 

a child aged 10 or younger, four separate counts of oral copulation with a 

child aged 10 or younger, and four separate counts of committing a lewd act 

12 Havellana argues, he “could have killed someone and received a lesser, 

or the same sentence,” and he “could have raped someone with force and 

received a lesser, or the same sentence.” 

13 In Ewing, the Supreme Court found defendant’s sentence of 25 years to 

life in prison imposed for the offense of felony grand theft under California’s 

“Three Strikes” law was not grossly disproportionate and did not violate the 

Eighth Amendment’s prohibition on cruel and unusual punishments. 

(Ewing, supra, 538 U.S. at pp. 30-31.)
33

on a child under the age of 14. (He was also convicted on six additional 

charges of committing a lewd act or a forcible act on a child and two 

additional charges of attempted sexual intercourse with a child aged 10 or 

younger, but the trial court stayed imposition of sentences on those crimes.)

The convictions demonstrate that Havellana repeatedly committed severe 

and numerous sexual offenses on multiple vulnerable victims, over the course 

of several years, while the vulnerable victims were entrusted in his care. 

Courts have upheld similar sentences under similar circumstances. (People 

v. Andrade (2015) 238 Cal.App.4th 1274, 1309-1310 [upholding sentence of 

195 years to life comprised of 13 consecutive terms of 15 years to life, for sex 

crimes against five victims]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 

531-532 [upholding sentence of 129 years for 25 sex crimes against a single 

victim]; Wilson, supra, 56 Cal.App.5th at pp. 140, 170 [upholding sentence of 

45 years to life for four sex offense counts against two victims]; see also 

Baker, supra, 20 Cal.App.5th at pp. 722-733 [upholding sentence of 15 years 

to life for single count of oral copulation with a child 10 years or younger 

against a single victim].)

Moreover, as this court noted in Baker, many states other than 

California impose harsh penalties, including life in prison, for sexual offenses 

committed against children. (Baker, supra, 20 Cal.App.5th at pp. 730-731.) 

We are therefore not persuaded by Havellana’s contentions regarding the 

disproportionality of the sentence imposed.

Havellana further contends the trial court abused its discretion when it 

“[ran] multiple counts consecutive to each other to impose a sentence 

equivalent to several life times, where the court had discretion to do 

otherwise, based upon the one aggravating factor for a defendant who had no 

prior criminal history, had lower than average risk of re-offending, had no 
34

evidence of committing any offenses in the past five years, and exhibited no 

behavior reflecting he is a danger to society in general.” Havellana does not 

dispute that the trial court had authority to impose consecutive terms for the 

counts but contends its decision to do so “exceeds the bounds of reason.” 

We review a trial court’s sentencing decision for abuse of discretion. 

(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) We find 

no abuse of discretion on this record.14 We have already rejected Havellana’s 

constitutional challenge to the sentence and likewise reject his contention 

that the sentence imposed “exceeds the bounds of reason.” As noted, many 

states impose indeterminate life sentences for crimes of sexual abuse of a 

child. Havellana was convicted of committing 19 separate sexual offenses 

against two child victims. Havellana continues to misplace his focus on 

factors favorable to him without recognizing the severity and numerosity of 

the crimes committed. He incorrectly claims only one aggravating factor was 

applicable here, acknowledging only the violation of a position of trust (Cal. 

Rules of Court, rule 4.421(a)(11)), and focuses on circumstances in mitigation 

(including his lack of prior criminal history). But the record indicates at least 

three aggravating factors were present here: the victims were particularly 

vulnerable as they were under the age of 10 (Cal. Rules of Court, 

rule 4.421(a)(3)); the manner in which crimes were carried out, over the span 

of years, indicated some level of grooming, which indicated some planning, 

14 Because we conclude Havellana has not established a constitutional 

violation, we decline to consider the Attorney General’s additional argument 

that, under People v. Franklin (2016) 63 Cal.4th 261, 278, the elderly parole 

provision set forth in section 3055 “ ‘supersede[s] the statutorily mandated’ 

sentence.” As such, we deny Havellana’s request for judicial notice of 

statistics regarding the elderly parole program and life expectancy in 

California prisons. 
35

sophistication, or professionalism (id., rule 4.421(a)(8)); and the defendant 

took advantage of a position of trust or confidence to commit the offenses, 

taking advantage of his nieces when they were entrusted to be in his home 

(id., rule 4.421(a)(11)). Moreover, as the probation officer observed, the 

charged crimes reflected only a minor fraction of the incidences of sexual 

assault detailed by the victims in this case. (Id., rule 4.421(a) [listing factors 

in aggravation relating to the crime], rule 4.408 [listing of factors is not 

exhaustive or exclusive].) The trial court expressly referenced “the factor [in] 

aggravation as it relates to a violation of position of trust” as the “most 

significant” and additionally referenced “the nature of the particular offenses 

in this case.” It is clear from the record that the trial court considered the 

appropriate legal authority and the circumstances of the crimes and 

thoughtfully exercised its discretion in tailoring the sentence imposed here.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.