1 Filed 5/27/15 P. v. Everett CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (El Dorado)

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THE PEOPLE, Plaintiff and Respondent,

v. DAVID CHARLES EVERETT, Defendant and Appellant. C076770 (Super. Ct. No. P13CRF0231)

Defendant David Charles Everett was char ged and convicted of 12 sex offenses against a child under the age of 10, his girlfri end’s niece. The trial court sentenced him to an aggregate term of 210 years to life in state prison. On appeal, defendant contends the sentence constitutes cruel and unusual punishment under the state and federal Constitutions because it cannot possibly be completed in his lifetime. We di sagree and affirm the judgment.2 FACTUAL AND PROCEDUR AL BACKGROUND
Because of the nature of the claim on a ppeal, we need not re cite in detail the substantive facts underlying defendant’s convictions. Defendant lived, for a time, with his girlfriend and members of her extended family, including her niece, Jane Doe (the victim). Over a period of several months,
while he lived in the same house as the vic tim and after he moved out of the house, defendant sexually molested the victim by s odomizing her, orally copulating her, having her orally copulate him, penetrating her va gina with his finger, attempting to penetrate her vagina with his penis, ha ving her masturbate him, and ejaculating in her anus and
mouth. Defendant committed these acts when he and the victim were alone and when other family members were home. He sexually molested her at different times and in multiple rooms and locations thro ughout the house. He did so whether she protested or

not. Defendant told the victim not to tell a nyone because “he thought he was going to get in big, big trouble.” Although the victim was initially afraid to report the molestation because she did not want defendant to get angr y with her or hurt her, she eventually told a sibling, who then reported it to their mother. Defendant was charged by information with five counts of intercourse or sodomy with a child under the age of 10 (Pen. Code, § 288.7, subd. (a) — counts 1, 3, 4, 5, and 9), five counts of oral copulation or penetr ation with a child under the age of 10 (Pen. Code, § 288.7, subd. (b) — counts 2, 6, 7, 8, and 10), and two counts of lewd and
lascivious acts with a child und er the age of 14 (Pen. Code, § 288, subd. (a) — counts 11 and 12). He was tried by a jury and found guilty as charged.
The trial court sentenced defendant to an aggregate term of 210 years to life comprised as follows: a determinate term of eight years for count 11, plus a consecutive determinate term of two years for count 12, consecutive indeterminate terms of 25 years3 to life each for counts 1, 3, 4, 5, and 9, and c onsecutive indeterminat e terms of 15 years to life each for counts 2, 6, 7, 8, and 10. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends his sent ence of 210 years to life ca nnot possibly be completed
in his lifetime and thus constitutes cruel a nd unusual punishment in violation of the federal and state Constitutions. (U.S. Const ., 8th Amend.; Cal. C onst., art. I, § 17.) 1 Acknowledging his failure to specifically obj ect on those grounds below, defendant asks us to either deem the objection adequately ma de or consider the issue in any event to forestall a subsequent claim of ineffective as sistance of counsel. “[A]lthough [defendant] has technically forfeited the issue on appeal because he did not raise the objection below ( People v. DeJesus (1995) 38 Cal.App.4th 1, 27), we ‘shall reach the merits under the relevant constitutional standards, in the in terest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.’ ( People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)” ( People v. Russell (2010) 187 Cal.App.4th 981 , 993.) We find the claim
lacks merit. Defendant’s claim rests entirely on a lega l theory put forward in the concurring and dissenting opinions of th e late California Supreme Court Justice Stanley Mosk. Justice Mosk opined that a sentence that cannot possibly be completed in one’s lifetime amounts to cruel or unusual punishment b ecause it “makes a mockery of the law” ( People v. Hicks (1993) 6 Cal.4th 784, 797) and “can serve no rational legislative

1 A punishment violates th e Eighth Amendment of the Unite d States Constitution if it is “ ‘grossly disproportionate to th e severity of the crime.’ ” ( Ewing v. California (2003) 538 U.S. 11, 21 [155 L.Ed.2d 108, 117].) A punishment ma y amount to cruel or unusual punishment under article I, section 17 of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” ( In re Lynch (1972) 8 Cal.3d 410, 424.)4 purpose, under either a retributive or a utilitarian theory of punishment.” ( People v. Deloza (1998) 18 Cal.4th 585, 601 .) In Justice Mosk’s vi ew, the “maximum sentence that should be imposed is one a defendant is able to serve: life imprisonment.” ( Id. at p. 602.) Defendant properly concedes that Jus tice Mosk’s theory “h as never commanded a majority of the California Supreme Court, nor has it been accepted in the federal courts.”
As we stated in People v. Retanan (2007) 154 Cal.App.4th 12 19, 1231, “ ‘ “[N]o opinion has value as a precedent on poin ts as to which there is no ag reement of a majority of the court. [Citations.]” [Citations .] Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion [in Deloza ], it has no precedential value.’ Accordingly, there is no authority for defe ndant’s argument.” We have respectfully disagreed that a sentence in excess of an ordinary human lifespan in otherwise appropriate circumstances is cruel or u nusual merely because of its length. ( People v.
Haller (2009) 174 Cal.App.4t h 1080, 1089-1090; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) We do so again here. In light of defendant havi ng been convicted of multip le sex offenses against a child, and absent any precedential authority supporting the argument, we conclude the sentence imposed does not violate eith er the federal or state Constitutions.5 DISPOSITION The judgment is affirmed.

RENNER , J.

We concur:

NICHOLSON , Acting P. J.

HULL , J.