Filed 8/27/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BONIFACIO CRUZ CADENA,

Defendant and Appellant.

 B281175

 (Los Angeles County

 Super. Ct. No. KA112281)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Robert M. Martinez, Judge. Affirmed in 

part and reversed in part with directions.

Judith Kahn, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Scott A. Taryle, and Viet H. Nguyen, Deputy 

Attorneys General, for Plaintiff and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of parts III–V of the Discussion post, at pp. 26–32.
2

A jury convicted defendant Bonifacio Cruz Cadena of 

six counts of lewd acts upon a child: three acts against each 

of his two nieces. (Pen. Code, § 288, subd. (a).)

1 The jury also 

found true the special circumstance allegation that he committed 

the acts against more than one victim. (§ 667.61, subds. (b) & 

(e).) Pursuant to the “One Strike” law (§ 667.61), the trial court 

sentenced him to an aggregate term of 30 years to life in state 

prison, consisting of consecutive 15-years-to-life terms on two 

counts—one for each victim—and concurrent 15-years-to-life 

terms on the remaining four counts.

Defendant contends the following: (1) There was no 

substantial evidence to support the finding that he committed 

more than two lewd acts on each victim; (2) His sentence 

violates the constitutional prohibition against cruel or unusual 

punishment; (3) His counsel was constitutionally deficient for 

failing to object to expert witness testimony on child sexual abuse 

accommodation syndrome; (4) The trial court should be afforded 

an opportunity to strike the multiple victim enhancement; 

and (5) The trial court miscalculated his presentence custody 

credit. We agree that the evidence supported findings as 

to only two lewd acts on each victim and that his sentence is 

unconstitutionally excessive. We therefore vacate the convictions 

on two counts, reverse the judgment, and direct the court to hold 

a new sentencing hearing. 

 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, defendant was 44 years old and married with two 

children. The four of them shared an apartment with defendant’s 

sister, his sister’s husband (Mario), and their five children, 

including twin sisters G. and M. All seven children slept in the 

living room, with G. and M. sharing a bed.

During the summer of 2014, when G. and M. were 11 

or 12 years old, the girls would sometimes wake up around 

3:00 a.m. to see defendant near their bed. Once, M. awoke to 

find defendant removing a blanket that covered her. Defendant 

told her that he was trying to kill a bug he had seen. On other 

occasions, G. and M. would awaken and find defendant touching

them over their clothes on their stomachs or their “vagina[s].”

2

This made G. feel “uncomfortable” because she had “never 

been touched there.” M. also felt “uncomfortable,” as well as 

“confused” because defendant had “always [been] respectful” 

toward them.

G. and M. conferred and learned that defendant had 

touched the other in the same way. They told their father, Mario, 

who then installed an inconspicuous video camera on the girls’

bed. The camera subsequently recorded video of someone’s arm 

and a hand touching and rubbing M. on top of her clothes in her 

 

2 Because the offensive touching occurred over the clothes 

of G. and M., the witnesses and counsel appear to have used 

the term “vagina” colloquially—albeit inaccurately—to refer 

generally to female genitalia or “ ‘private parts.’ ” (See People v. 

Paz (2017) 10 Cal.App.5th 1023, 1037; People v. Quintana (2001) 

89 Cal.App.4th 1362, 1367.) For the sake of consistency, we will 

use the term in the same way.
4

pubic area for about 12 seconds. The video does not show the 

perpetrator’s face. At trial, Mario said he recognized the arm in 

the video as defendant’s.

Mario confronted defendant and asked, “Why was he 

molesting [Mario’s] children?” According to Mario, defendant 

initially denied the accusation, but ultimately admitted to 

touching the girls, asked Mario to forgive him, and promised 

“that he was not going to do that anymore.” Mario agreed to 

forgive him.

Defendant continued to live in the apartment with the 

others, and did not touch the girls again. For a while, G. did not 

“really talk” to defendant. But they eventually began talking 

again.

More than one year after defendant last touched the girls, 

G. told a tutor at her middle school about the incidents.3 The 

tutor informed child protective services personnel, who contacted 

the police.

During a police interview, defendant admitted he had 

touched the girls on their legs or their vaginas one or two times, 

and only over their clothes. When asked why he touched them, 

defendant stated: “I didn’t have any intention of doing harm 

or anything, just, I don’t know, the devil came to my mind. I 

don’t know.” He stated that he regrets his actions and that he 

 

3 The tutor testified that G. told her that her uncle had 

raped her. G., however, denied that she had said this, and the 

prosecution did not rely on the tutor’s statement. Indeed, the 

prosecutor argued to the jury that defendant’s offensive touching 

was “through the clothing. There’s no testimony it was skin to 

skin.”
5

had asked Mario for forgiveness and said it would not happen 

again, and it has not. He and the girls, defendant stated, 

now talk and “get along well.” Defendant added that he has 

“changed” and “it won’t happen, not even with any other person.”

G. and M. testified about the touching incidents at trial. 

G. said that defendant touched her on her stomach or vagina 

“two to three times.” M. testified he touched her stomach and 

vagina “like, three or two times.” She described the touching 

as grabbing or rubbing. G. also said that defendant “hadn’t done 

anything to [them]” since Mario confronted him, and “everything 

was fine.” M. testified that she felt conflicted about the criminal 

prosecution because although defendant “did a wrong,” he “knew 

he did a wrong,” and he “accepts it.”

Dr. Jayme Jones, an expert on child sexual abuse, testified 

that child sexual abuse accommodation syndrome (CSAAS) 

is a model that provides insight into why children do or do not 

disclose sexual abuse. Dr. Jones described five components of 

CSAAS: (1) express or implied secrecy concerning the incident; 

(2) the child’s helplessness; (3) accommodation of the abuse; 

(4) delayed or partial disclosure; and (5) recanting. Dr. Jones 

did not interview G., M., or any of the witnesses in the case, and 

did not offer any opinion as to whether G. or M. was a victim of 

sexual abuse.

Defendant testified at trial that he did not touch the 

“private areas” of G. or M. He said he admitted doing so during 

the police interrogation because he understood it would help him 

“when [he went] to see the judge.” The hand that is shown in the 

video recording of someone touching M., he stated, was not his 

hand.
6

Defendant’s wife, children, and parents testified that 

defendant is a youth leader in their church, is respected by 

others, treats others with respect, and has never shown any 

tendency to touch children in a sexual manner. He has worked 

with children in a church choir for about 10 years and no one 

has alleged that he molested any of the children.

A jury found defendant guilty of six counts of lewd acts

upon a child and found true the special circumstance allegation 

that he committed the acts against more than one victim. (Pen. 

Code, §§ 288, subd. (a), 667.61, subds. (b) & (e).)

According to a probation officer’s report submitted in 

connection with the sentencing hearing, defendant had been 

convicted in 1991, when he was 21 years old, of driving under 

the influence of alcohol, and driving with a suspended license. 

(Veh. Code, §§ 14601.1, subd. (a), 23152, subds. (a) & (b).)

Defendant had no other criminal history prior to the convictions 

in this case.

The probation report includes a statement by Mario to 

the probation officer “that he, his daughters, and his family have 

forgiven the defendant” and that “the defendant should not go to 

prison.” Mario added that “his daughters have had an evaluation 

and two counseling sessions and both are fine.”

The trial court sentenced defendant under the One Strike 

law (§ 667.61) to an aggregate term of 30 years to life in 

state prison, consisting of consecutive 15-years-to-life terms on 

two counts, one for each victim, and concurrent 15-years-to-life 

terms on the remaining four counts.

Defendant timely appealed.
7

DISCUSSION

I. No Substantial Evidence Supported Two of the 

Lewd Conduct Counts

Defendant was convicted of three counts of lewd conduct 

involving each child, for six total counts. Yet G. and M. testified 

that each child was only touched “two or three” times, or “two 

to three” times. Defendant contends evidence that he touched the 

children two or three times each does not support a conviction for 

touching either one a third time. The Attorney General does not 

appear to disagree, but argues additional evidence supported the 

convictions.

Subdivision (a) of section 288 makes it a felony to “willfully 

and lewdly commit[] any lewd or lascivious act . . . upon or with 

the body, or any part or member thereof, of a child who is under 

the age of 14 years, with the intent of arousing, appealing to, 

or gratifying the lust, passions, or sexual desires of that person 

or the child.” “The elements of section 288, subdivision (a) 

are: (1) a lewd touching[,] (2) of a child under 14 years of age[,] 

(3) with the intent of sexual arousal.” (People v. O’Connor (1992) 

8 Cal.App.4th 941, 947.)

“In considering a claim of insufficiency of evidence, a 

reviewing court 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. Earp 

(1999) 20 Cal.4th 826, 887.) To support each count of lewd 

and lascivious conduct alleged in an information, the “victim . . . 

must describe the kind of act or acts committed” and “the number 

of acts committed with sufficient certainty . . . (e.g., ‘twice a 
8

month’ or ‘every time we went camping’).” (People v. Jones

(1990) 51 Cal.3d 294, 316.)

Here, because testimony by the girls that defendant

touched each of them two or three times is certain as to 

only two instances of unlawful conduct, not three, it supports 

convictions on only two counts each. For the jury to have found 

defendant guilty of a third count of lewd conduct as to either 

G. or M. there had to have been other evidence of such conduct. 

In addition to G. testifying that defendant touched her 

stomach or vagina “two or three” times, M. testified that she 

saw defendant “like, reaching over my, like, twin sister, I guess, 

trying to touch her or something.” The Attorney General argues 

that this testimony supports defendant’s conviction on a third 

count for committing a lewd act upon G. We disagree. It is 

unclear whether M. was describing one of the two instances of 

lewd touching that G. had already related or a third instance. 

And M. did not testify that defendant actually touched G., only 

that he was “trying” to touch her “or something.” Even if he had 

touched her on this occasion, nothing in M.’s testimony indicated 

he did so lewdly, with the intent of arousing, appealing to, or 

gratifying his lust, passions, or sexual desires.

After M. testified that defendant touched her vagina 

twice, the prosecutor asked, “What about your stomach? Do 

you remember ever talking about that?” M. replied, “I don’t 

remember exactly. But I remember he would, like, touch me. 

But the thing is, I don’t remember where because, like, I was 

tired. So I was asleep.” The Attorney General argues that this 

testimony supports a third touching incident, and a lewd or 

lascivious touching may occur when one touches any part of a 

child’s body. We do not disagree, but, again, M. testified only 
9

that she was touched somewhere other than her vagina, but said 

nothing about the nature of that touching. Not every touch by a 

man who once touched a girl lasciviously is itself lascivious.

Both girls testified that they would sometimes awaken to 

see defendant standing over them, looking at them. The Attorney 

General argues that a rational juror could conclude from this 

evidence that defendant committed lewd acts upon each child 

before they woke up, i.e., on occasions other than those to which 

they testified. We disagree. Like the nonspecific or attempted 

touching described by the girls, ominous staring does not itself 

constitute evidence of lascivious touching.

We conclude the evidence supports defendant’s convictions 

on only two counts of lewd or lascivious conduct as to each 

child, and will order that the third conviction as to each child be 

vacated.

II. Defendant’s Indeterminate Life-Maximum Sentence 

is Unconstitutionally Excessive

Defendant contends that his 30-years-to-life sentence 

violates California’s constitutional prohibition against cruel or 

unusual punishment.4 (Cal. Const., art. I, § 17.) We agree.

 

4 Defendant did not raise this argument below. Although 

that failure would ordinarily forfeit the argument on appeal, 

we exercise our discretion to address the argument because it 

presents an important question of law that requires no further 

factual development in the trial court. (See In re Sheena K.

(2007) 40 Cal.4th 875, 887–889; People v. Andrade (2015) 

238 Cal.App.4th 1274, 1310; People v. Williams (1998) 17 Cal.4th 

148, 161–162, fn. 6.)
10

When, as here, a defendant contends that his sentence is 

unconstitutionally excessive, “[t]he judicial inquiry commences 

with great deference to the Legislature. Fixing the penalty 

for crimes is the province of the Legislature, which is in the 

best position to evaluate the gravity of different crimes and 

to make judgments among different penological approaches.”

(People v. Martinez (1999) 76 Cal.App.4th 489, 494.) “Yet 

legislative authority remains ultimately circumscribed by 

the constitutional provision forbidding the infliction of cruel 

or unusual punishment, adopted by the people of this state as 

an integral part of our Declaration of Rights. It is the difficult 

but imperative task of the judicial branch, as coequal guardian 

of the Constitution, to condemn any violation of that prohibition.” 

(In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).)5

Punishment is unconstitutionally cruel or unusual “if 

it is grossly disproportionate to the offense as defined or as 

committed, and/or to the individual culpability of the offender.” 

(People v. Dillon (1983) 34 Cal.3d 441, 450 (Dillon) (plur. opn. 

of Mosk, J.).) Stated differently, if the punishment “is so 

disproportionate to the crime for which it is inflicted that 

it shocks the conscience and offends fundamental notions of 

human dignity,” it is unconstitutionally excessive. (Lynch, 

supra, 8 Cal.3d at p. 424; see People v. Leonard (2007) 

40 Cal.4th 1370, 1426–1427.) 

 

5 Our Supreme Court is currently considering whether 

a habeas petitioner’s sentence of life with the possibility of 

parole for a minor’s commission of kidnapping for robbery 

is unconstitutionally disproportionate. (In re Palmer (2019) 

33 Cal.App.5th 1199, review granted July 31, 2019, S256149.) 
11

Courts have found such disproportionality by: 

(1) examining “the nature of the offense and/or the offender, 

with particular regard to the degree of danger both present to 

society”; (2) comparing the punishment with punishments for 

more serious crimes in the same jurisdiction; or (3) comparing 

the punishment with punishments for the same offense in other 

jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425–428; accord,

Dillon, supra, 34 Cal.3d at p. 478 (plur. opn. of Mosk, J.).) 

Any one of these methods “can be sufficient to demonstrate that a 

particular punishment is cruel and unusual.” (People v. Mendez

(2010) 188 Cal.App.4th 47, 64–65.)

The nature of the offense is evaluated based upon “ ‘the 

facts of the crime in question’ [citation]—i.e., the totality of the 

circumstances surrounding the commission of the offense in the 

case at bar, including such factors as its motive, the way it was 

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

consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479

(plur. opn. of Mosk, J.).)

The inquiry into the nature of the offender “focuses 

on the particular person before the court, and asks 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.” (Dillon, 

supra, 34 Cal.3d at p. 479 (plur. opn. of Mosk, J.).)

Two cases are particularly instructive: In re Rodriguez

(1975) 14 Cal.3d 639 (Rodriguez) and People v. Baker (2018) 

20 Cal.App.5th 711 (Baker). In Rodriguez, a habeas corpus 

petitioner had committed statutory rape when he was 19 years 

old and two years later was arrested for molesting a child. (In re 

Rodriguez, supra, 14 Cal.3d at p. 644, fn. 6.) He was diagnosed 
12

a “ ‘sexual psychopath’ ” and committed to a state hospital. 

(Ibid.) He eventually escaped from the institution with another 

patient, whom he later married. (Ibid.) Less than two years 

later, he and his wife were driving in their car when they saw 

a six-year-old girl roller skating. (Id. at p. 643, fn. 5.) He put 

the girl in the car, and “drove to a less public place where [he] 

fondled the child’s private parts.” (Ibid.) “[C]urious citizens 

investigated the parked car, [and] found that the child’s skirt 

was raised above her knees and that petitioner’s trousers were 

unzipped.” (Id. at pp. 643–644, fn. 5) A medical “examination 

showed no penetration of the sexual organs of the victim.” 

(Id. at p. 644, fn. 5.) The petitioner was convicted of violating 

section 288, and sentenced to prison for an indeterminate term 

of one year to life. By the time the Supreme Court decided his 

habeas corpus petition, he had served 22 years of that term. 

The Court issued the writ and directed the petitioner be released 

from custody because the time he had served exceeded that 

permitted under the cruel or unusual punishment proscription 

of the California Constitution. (Id. at p. 656.)

In considering the nature of the offense, the Rodriguez

Court acknowledged that the petitioner’s crime was “by no 

means ‘trivial,’ ” but explained that its commission involved 

no violence or weapon, caused no physical harm to the victim, 

and “lasted only a few minutes.” (Rodriguez, supra, 14 Cal.3d 

at pp. 654–655.) The petitioner also “attempted none of 

the dangerous offenses sometimes associated with violations 

of section 288.” (Id. at p. 655.) Regarding the offender, the 

Court observed that the petitioner “was only 26 years old” when 

he committed the crime, and his conduct could be “explained in 

part by his limited intelligence, his frustrations brought on by 
13

intellectual and sexual inadequacy, and his inability to cope with 

these problems.” (Ibid.)

6 The petitioner also had “no history of 

criminal activity apart from problems associated with his sexual 

maladjustment.” (Ibid.)

The Rodriguez Court also compared the petitioner’s 

punishment with sentences under California law for more 

serious crimes and the punishment for similar crimes in other 

states, and found both comparisons supported its conclusion 

that the petitioner’s punishment constituted cruel and unusual 

punishment. (Rodriguez, supra, 14 Cal.3d at pp. 655–656.)

In Baker, the court upheld a 15-years-to-life sentence 

for one count of oral copulation of a six-year-old girl, in violation 

of section 288.7, subdivision (b),

7 and two counts of lewd acts 

in violation of section 288, subdivision (a). (Baker, supra, 

20 Cal.App.5th at p. 715.) The defendant was a 50-year-old 

uncle of the victim. (Id. at p. 716.) While the defendant was 

visiting with the victim’s family, he brought the victim into 

bed with him, rubbed her stomach, pulled down her underwear, 

licked her “ ‘on the middle,’ ” and asked her if it felt good. (Id.

 

6 The petitioner had an I.Q. of 68 and was “functionally 

illiterate and unskilled.” (Rodriguez, supra, 14 Cal.3d at p. 644, 

fn. 6.) He asserted that he was led to commit his crime against 

the six-year-old girl because he discovered “that his wife was 

sterile,” which “frustrated his intense desire to have children.” 

(Ibid.)

7 Section 288.7, subdivision (b) provides: “Any person 

18 years of age or older who engages in oral copulation . . . with 

a child who is 10 years of age or younger is guilty of a felony and 

shall be punished by imprisonment in the state prison for a term 

of 15 years to life.” 
14

at pp. 716–717.) The victim said, “ ‘No, it’s gross.’ ” The 

defendant then kissed the victim on her mouth with a “ ‘lick 

kiss.’ ” (Ibid.) The victim pulled a blanket over her face. (Id. at 

p. 716.) The defendant said he was sorry, and they went to sleep. 

(Id. at p. 717.) The next morning, the child told her mother about 

the incident, and the mother contacted the sheriff’s department. 

(Id. at p. 716.) The defendant’s DNA was found on a genital 

swab from the victim, and saliva was found in the crotch of her 

underwear. (Ibid.) The victim told a social worker that “she 

kept thinking about what happened and felt ‘disgusting.’ ” (Id.

at p. 717.)

In evaluating the nature of the offense in Baker—oral 

copulation of a six-year-old child—the court began by noting 

that there is “ ‘a strong public policy to protect children of tender 

years.’ ” (Baker, supra, 20 Cal.App.5th at p. 724.) Although

the child victim “was not physically harmed,” she had told a 

“social worker she felt ‘disgusting’ and kept thinking about what 

had happened, indicating at least some level of psychological 

harm.” (Id. at p. 725.) The court considered that the child “was 

particularly vulnerable given her age, and the defendant abused 

a position of trust to commit the offense.” (Ibid.) The court also 

found significant the fact that the defendant “perpetrated not one 

but three sexual acts against [the victim]. He touched her vagina, 

orally copulated her, and then kissed her mouth. Although 

the three acts took place within a short period of time, Baker 

did not stop the molestation immediately and proceeded to kiss 

her on the mouth after she said the oral copulation felt ‘gross.’

[The victim] had to pull a blanket over her face to make him 

stop.” (Ibid.)
15

The Baker court distinguished Rodriguez, stating that the 

facts before it “are significantly more aggravated than those in 

Rodriguez.” (Baker, supra, 20 Cal.App.5th at p. 727.) “Whereas 

Rodriguez was convicted of unspecified fondling of a six-year-old 

child, Baker was convicted of oral copulation—conduct that the 

Legislature has since made clear is more heinous. [Citations.] 

And Baker was convicted of not one but three separate sexual 

acts against [his victim].” (Id. at p. 726.) The court also stated 

that it did not appear that the defendant had a low I.Q., was 

“illiterate or unskilled, or [was] coping with problems of sexual 

inadequacy.” (Ibid.)

We turn now to the instant case. 

When evaluating the constitutionality of an indeterminate 

sentence, “it is the maximum term prescribed by the statute . . . 

which must survive constitutional scrutiny.” (Lynch, supra,

8 Cal.3d at pp. 416–417.) Therefore, we must determine whether

defendant’s indeterminate life-maximum sentence withstands 

constitutional scrutiny in this case, without regard to the fact 

that defendant may be eligible for parole after serving 30 years 

of his term. (See ibid.; Baker, supra, 20 Cal.App.5th at p. 723.)

Defendant was sentenced under the One Strike law, which 

the Legislature “enacted to ensure serious and dangerous sex 

offenders would receive lengthy prison sentences upon their 

first conviction.” (People v. Palmore (2000) 79 Cal.App.4th 1290, 

1296.) The Legislature “targeted” the law at those who “prey[]

on women and children, cannot be cured of [their] aberrant

impulses, and must be separated from society to prevent 

reoffense.” (People v. Wutzke (2002) 28 Cal.4th 923, 929–930.) 

“Almost all of the enumerated crimes involve the use of force 

or fear.” (Id. at p. 930.) Indeed, the only enumerated crimes
16

that do not require such use are the crimes of continuous sexual 

abuse of a child (§ 288.5) and the crime defendant committed

in this case—lewd and lascivious acts in violation of section 288, 

subdivision (a). (§ 667.61, subd. (c)(8) & (9).) 

Commission of an enumerated crime is not enough to 

trigger a 15-years-to-life term under the One Strike law; the 

enumerated crime must also involve at least one additional 

circumstance, such as the perpetrator kidnapping the victim,

committing the sexual offense during a burglary, using 

a dangerous or deadly weapon or firearm, tying or binding 

the victim, administering a controlled substance to the victim,

or, as in this case, committing the offense “against more than 

one victim.”8 (§ 667.61, subd. (e); see People v. Luna (2012) 

209 Cal.App.4th 460, 471.)

Defendant does not challenge—and we do not address—

the constitutionality of the One Strike law in the abstract or 

even of life sentences imposed under that law for violations 

of section 288, subdivision (a).

9 Indeed, as the Rodriguez

 

8 The One Strike law also provides for 25-years-to-life 

sentences if certain other or additional circumstances exist. 

(§ 667.61, subd. (a).)

9 Courts have upheld sentences imposed under the 

One Strike law under circumstances involving more heinous 

crimes. (See, e.g., People v. Reyes (2016) 246 Cal.App.4th 

62, 68-70, 87-88 [defendant committed forcible rape and 

oral copulation against a minor during a burglary]; People v. 

Alvarado (2001) 87 Cal.App.4th 178, 200 [forcible rape during 

burglary]; People v. Crooks (1997) 55 Cal.App.4th 797, 806–807 

[forcible rape while armed with a deadly weapon during a 

burglary].) 
17

Court observed, “section 288 encompasses conduct for 

which [a] life [sentence] might be a permissible punishment 

in some cases.” (Rodriguez, supra, 14 Cal.3d at p. 647.) 

But a statutory punishment that may be permissible in the 

abstract, “is nevertheless constitutionally impermissible if it 

is disproportionate to the defendant’s individual culpability.” 

(Dillon, supra, 34 Cal.3d at p. 480 (plur. opn. of Mosk, J.).) Thus, 

although life sentences for violating section 288, subdivision (a),

may be permissible under the One Strike law “in some cases,” 

they may be unconstitutionally “excessive in others.” (Rodriguez, 

supra, 14 Cal.3d at p. 647.) Defendant contends that his life 

sentence in this case is excessive. 

Regarding the nature of the offense, we observe 

that defendant’s offenses were, like the offense committed in 

Rodriguez, “by no means ‘trivial’ ” (Rodriguez, supra, 14 Cal.3d 

at pp. 654–655), and that although “lewd conduct on a child 

may not be the most grave of all offenses, . . . its seriousness 

is considerable” (People v. Christensen (2014) 229 Cal.App.4th 

781, 806 (Christensen)). The offenses were, however, far less 

serious than the petitioner’s conduct in Rodriguez and the 

defendant’s actions in Baker. Defendant committed the crimes 

by touching the girls’ private parts above their clothes; he did 

not touch their skin.10 By contrast, the petitioner in Rodriguez

 

10 Although a lewd or lascivious act under section 288 does 

not require a touching of the victim’s skin (People v. Martinez

(1995) 11 Cal.4th 434, 444), the Legislature has determined 

that touching a victim’s sexual organs over the victim’s clothes 

should not be punished as harshly as touching the victim’s skin 

directly. (Compare § 243.4, subds. (a)–(d) & (f) [felony sexual 

battery requires the touching of the victim’s skin] with § 243.4, 
18

“fondled the child’s private parts” (Rodriguez, supra, 14 Cal.3d

at p. 643, fn. 5); and the defendant in Baker rubbed the victim’s 

stomach, orally copulated her, and gave her “a ‘lick kiss.’ ” 

(Baker, supra, 20 Cal.App.5th at p. 717.) He did not transport 

the girls to another location, as the petitioner did in Rodriguez,

or bring them into bed with him, as in Baker. (Rodriguez, 

supra, 14 Cal.3d at p. 643, fn. 5; Baker, supra, 20 Cal.App.5th 

at p. 716). He did not use a weapon, force, fear, threats, or 

intimidation. The six-year-old victims in both Rodriguez and 

Baker were also considerably younger than G. and M., justifying 

greater punishment for crimes committed against them. (See, 

e.g., §§ 288.7, subds. (a) & (b) [sexual offenses against children 

10 years of age or younger punishable by up to life in prison], 

1170.72 [the age of victim under 11 years may be considered 

an aggravating circumstance in sentencing].)

There is no evidence of defendant’s motive or intent 

other than his statements to police that he did not “have any 

intention of doing harm or anything.” Nor is there any evidence 

that defendant planned to escalate his behavior beyond the 

over-the-clothes touchings he committed or that he “attempted 

[any] of the dangerous offenses sometimes associated with

violations of section 288.” (Rodriguez, supra, 14 Cal.3d at p. 655.) 

By contrast, the defendant in Baker ended his molestation only 

when the victim “pull[ed] a blanket over her face to make him 

stop” (Baker, supra, 20 Cal.App.5th at p. 725), and the petitioner 

in Rodriguez was found with his trousers unzipped and his 

 

subd. (e)(2) [sexual battery by touching “through the clothing 

of the victim” is a misdemeanor]; see People v. Dayan (1995) 

34 Cal.App.4th 707, 716.) 
19

victim’s skirt raised when “curious citizens” intervened 

(Rodriguez, supra, 14 Cal.3d at pp. 643–644, fn. 5).

The only evidence of the duration of any instance of 

touching is the video recording in which the touching lasted

about 12 seconds. Even if each instance lasted that long, the 

sum of the instances encompassed less than one minute, which 

is less than the “few minutes” that the fondling “episode” took 

in Rodriguez. (Rodriguez, supra, 14 Cal.3d at p. 655.) 

Significantly, there is no substantial evidence that 

defendant harmed the girls physically or psychologically.11 

Although G. and M. said they felt “uncomfortable” when 

they realized what had occurred, there is no evidence that 

defendant, in contrast to the defendant in Baker, inflicted 

any “level of psychological harm” on the victims. (Baker, 

 

11 The probation officer’s report states that “[t]he crime 

involved great violence, great bodily harm, threat of great bodily 

harm or other acts disclosing a high degree of cruelty, viciousness 

or callousness.” The record does not support this statement. 

We do not suggest that the defendant’s acts were without 

harm. Defendant’s offensive touching of G. and M. violated, 

at least, their rights to privacy and their interest in bodily 

autonomy and security. (See Rest.3d Torts, Intentional Torts 

to Persons (Tent. Draft No. 1, 2015) § 101, com. b [right not 

to suffer offensive physical contact with one’s body is “rooted 

in fundamental interests in autonomy, or freedom of choice 

over one’s body”]; Civ. Code, § 1708.5, subd. (f) [sexual battery 

includes “contact that offends a reasonable sense of personal 

dignity”]; Sacks, Intentional Sex Torts (2008) 77 Fordham L.Rev. 

1051, 1074 [“[d]ignitary harm is presumed to flow from 

interference with bodily autonomy”].)
20

supra, 20 Cal.App.5th at p. 725.) Indeed, according to Mario, 

the girls have had counseling and “both are fine.”

The Attorney General nevertheless suggests that the 

girls may have suffered psychological damage, and points to 

Dr. Jones’s testimony regarding the effects of child abuse on 

some victims. Dr. Jones, however, did not interview G. or M.

and expressed no opinion as to whether they had been abused 

or would suffer any ill effects of defendant’s conduct. The 

Attorney General’s assertion is thus speculative.

In considering the nature of the offense, the fact that 

defendant committed his crimes multiple times against 

two victims is, of course, significant and justifies a penalty 

more harsh than if defendant had committed fewer instances 

or against one victim only. (See Christensen, supra, 

229 Cal.App.4th at p. 808 [“ ‘penalties for single offenses . . . 

cannot properly be compared to those for multiple offenses’ ”].) 

Without diminishing the seriousness of multiple instances and 

victims involved, however, even when the occurrences of brief, 

over-the-clothes touchings are considered cumulatively, in light 

of all other circumstances in this case, the “degree of danger” 

that defendant’s crimes “present to society” (Lynch, supra, 

8 Cal.3d at p. 425) is not greater than the petitioner’s conduct 

in Rodriguez.

Regarding the nature of the offender, there is little 

in the record to suggest that defendant remains a danger to 

society. Unlike the petitioner in Rodriguez—who was caught 

with his trousers unzipped and his victim’s skirt raised—and 

the defendant in Baker—who stopped molesting his victim only 

when she covered herself with a blanket—there is no evidence 

that defendant intended to commit any act more serious than
21

the acts he committed. Upon being confronted by Mario with 

the evidence of his conduct, defendant expressed remorse, asked 

for forgiveness, and promised never to do it again—a promise

he kept. There is no evidence that he had ever committed any 

wrongful act toward others, including any of the children in his 

charge as a church choir leader for more than 10 years. He has 

no record of any prior criminal activity other than his convictions

26 years earlier for driving with a suspended license and driving 

under the influence. During his police interview, he insisted he 

has changed and vowed that he would never commit such acts 

again against anyone—a credible assertion in light of his kept 

promise to Mario made more than one year earlier.

Even if we assume that defendant testified falsely that he 

did not commit the crimes at all, the record demonstrates that 

defendant was far less of a danger to society than the petitioner 

in Rodriguez, who, in addition to fondling a six-year-old girl 

for which he was imprisoned, was convicted of statutory rape, 

arrested for child molestation, diagnosed a sexual psychopath, 

and an escapee from a state hospital. (Rodriguez, supra, 

14 Cal.3d at pp. 643–644, fns. 5 & 6.)

Based on all the facts and circumstances concerning 

the nature of the offenses and the offender, a sentence of life 

in prison for this defendant for the crimes committed in this 

case shocks our conscience and offends fundamental notions 

of human dignity. The sentence therefore violates California’s 

constitutional prohibition against cruel or unusual punishment. 

(Lynch, supra, 8 Cal.3d at p. 424.) 

Our conclusion is further supported by the second method

for determining disproportionality: comparing defendant’s 

punishment with the punishment for more serious offenses under
22

California law. (See Lynch, supra, 8 Cal.3d at p. 426.) Here, 

defendant touched the victims’ genitalia over their clothes while 

they slept. Because there were two victims, the court sentenced 

him under the One Strike law to indeterminate terms with a 

maximum of life in prison. By comparison, one who is convicted 

of raping children under 14 years of age when the children are 

incapable of resisting because they are asleep or intoxicated 

may be sentenced to a term of three, six, or eight years per crime. 

(§§ 261, subd. (a)(3) & (4), 264, subd. (a).) The One Strike law

does not apply to such crimes, so even its commission against 

two victims would result in no more than a 16-year determinate 

term, assuming the upper term is imposed on each count and 

the two terms run consecutively. The punishment is the same 

for rape of a spouse and sodomy when the victims are likewise 

incapable of resisting. (§ 262, subd. (a)(2) & (3); § 286, subds. (f) 

& (g).) Assault of a minor with intent to commit certain sex 

offenses—including rape, sodomy, oral copulation, or sexual 

penetration—is punishable by five, seven, or nine years in prison. 

(§ 220, subd. (a)(2).) Pimping or pandering a child under the age 

of 16 years old for prostitution is punishable by up to eight years 

(§§ 266h, subd. (b)(2), 266i, subd. (b)(2)), and abducting a minor 

for prostitution is punishable by no more than three years. 

(§§ 266a, 18.) Sexual penetration or sodomy with a child under 

14 years and more than 10 years younger than the perpetrator 

is punishable by up to eight years (§§ 286, subd. (c)(1), 289, 

subd. (j)), and one who restrains a minor and commits a sexual 

battery that involves touching the skin of the minor’s sexual

organs where the defendant has been previously convicted of the 

same crime is punishable by no more than four years in prison. 

(§ 243.4, subds. (a), (f), (g)(1) & (j).) Incest between an uncle and 
23

niece is punishable by a maximum of three years. (§§ 285, 18.) 

None of the foregoing crimes is punishable under the One Strike 

law or subject to a life sentence even if committed on multiple 

occasions and against multiple victims. 

Although the One Strike law imposes the same 

punishment for numerous other sexual offenses, such offenses 

are generally far more serious than the crimes defendant 

committed, particularly in light of the brief over-the-clothes 

touching manner in which he committed them. Under the 

One Strike law, for example, 15-years-to-life terms are imposed 

when the crimes of rape, sexual penetration, sodomy, and oral 

copulation are committed with the use of force, violence, or fear 

of immediate bodily injury, and when rape is forcibly committed 

in concert with others. (§ 667.61, subd. (c).) Strikingly, rape, 

sexual penetration, sodomy, and oral copulation are not subject 

to punishment under the One Strike law if they occur because 

the victim is unconscious, asleep, or intoxicated, or the 

perpetrator has threatened the victim with arrest or deportation

(see §§ 261, subd. (a)(3), (4) & (7), 262, subd. (a)(2), (3) & (5),

286, subds. (f), (i) & (k), 667.71, subd. (c)), but defendant’s 

over-the-clothes touching of G. and M. while they slept subjected

him to the heightened punishment. 

The Attorney General points out that if defendant had 

been previously convicted of committing a lewd act on a child 

and then committed a subsequent act, he “could have faced 

a 25-year-to[-]life sentence.” (See §§ 667.61, subds. (a), (c)(8) 

& (d)(1), 667.71, subds. (a) & (c)(4).) The greater sentence 

under this hypothetical, however, depends upon a prior 

conviction for a sex offense. Such a sentence might thus be 

justified by the fact that the perpetrator, having already been 
24

convicted of a sex offense, had “not been deterred by more 

conventional approaches to punishment.” (Ewing v. California

(2003) 538 U.S. 11, 24–25 [upholding “Three Strikes” law because 

the state has a valid interest in “incapacitating criminals who 

have already been convicted of at least one serious or violent 

crime”].) Here, however, defendant had never been convicted 

of a sex offense. The comparison to the punishment one would 

receive as a recidivist sexual offender, therefore, is inapt. 

Based on our comparison of defendant’s punishment with 

lesser punishments imposed for more serious crimes involving 

sexual behavior, defendant’s punishment is unconstitutionally 

disproportionate.

12

We now turn to the remedy. Under the authority of 

section 1260, some courts have modified an unconstitutional 

sentence to impose a certain and constitutional punishment. 

(See People v. Schueren (1973) 10 Cal.3d 553, 561-562 [where 

defendant was charged with a crime for which the maximum 

penalty was 14 years in prison and convicted of a lesser crime 

for which he was sentenced to an unconstitutional indeterminate 

maximum-life term, court reduced the sentence to the maximum 

permitted under the charged crime]; Dillon, supra, 34 Cal.3d 

 

12 Because our conclusion is supported by the first 

two methods identified in Lynch, we need not undertake 

the third method, a comparison of defendant’s punishment 

with the punishment for similar crimes in other jurisdictions. 

(See People v. Norman (2003) 109 Cal.App.4th 221, 230 

[disproportionality need not be established under each Lynch

technique].) We also need not determine whether defendant’s 

punishment violates the Eighth Amendment to the United States 

Constitution
25

at p. 489 (plur. opn. by Mosk, J.) [where Court held that the 

defendant’s sentence for first degree murder was constitutionally 

excessive, it reduced the sentence to the punishment for second 

degree murder].)

Generally, however, appellate courts have declined to 

direct imposition of a particular sentence and simply remanded 

with directions to resentence the defendant in light of the views 

expressed in the reviewing court’s opinion. (See, e.g., People v. 

Keogh (1975) 46 Cal.App.3d 919, 935 [56-year sentence for four 

forgery convictions was unconstitutional; court “remanded for 

resentencing in light of the views expressed in [the] opinion”];

People v. Speight (2014) 227 Cal.App.4th 1229, 1249 [de facto life 

sentence for juvenile reversed; court remanded case for a new 

sentencing hearing without explicit direction]; People v. Mendez, 

supra, 188 Cal.App.4th at p. 68 [same]; In re Nunez (2009) 

173 Cal.App.4th 709, 739 [same].)

Here, defendant contends that we should remand with 

directions to resentence defendant based upon the determinate 

terms specified for violating the crime he committed without 

regard to the unconstitutionally applied One Strike law. That

is, the court should sentence defendant under section 288, 

subdivision (a), to three, six, or eight years for each of the 

four counts for which there is substantial evidence, taking into 

account appropriate aggravating and mitigating circumstances 

and exercising its discretion as to whether such terms shall run 

concurrently or consecutively. Although the Attorney General 

had an opportunity to respond to this point in supplemental 

briefing, he offered no alternative. We do not disagree with 

the defendant’s proposed remedy, but decline to mandate it. 

Although upon remand, the trial court may not impose 
26

punishment under the One Strike law for the reasons set forth 

above, we otherwise defer sentencing decisions to the trial court 

to be made in accordance with the views we have expressed. 13

III. Defendant Was Not Denied Ineffective Assistance of 

Counsel For Failing to Object to CSAAS Evidence

Defendant contends that his trial counsel’s performance 

was constitutionally deficient because counsel failed to object to 

Dr. Jones’s testimony on CSAAS as irrelevant and prejudicial.

We reject this contention because defendant has failed to 

establish that any deficiency in counsel’s performance was

prejudicial.

“To prevail on a claim of ineffective assistance of counsel, 

a defendant ‘ “must establish not only deficient performance, i.e., 

representation below an objective standard of reasonableness, 

but also resultant prejudice.” ’ ” (People v. Maury (2003) 

30 Cal.4th 342, 389.) To establish prejudice, “the record must 

demonstrate ‘a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would 

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” (Ibid.) 

Courts need not determine whether counsel’s performance was 

deficient before examining whether defendant has established 

 

13 In addition to supplemental briefs regarding the cruel 

or unusual punishment question, we requested and received 

supplemental briefs addressing questions regarding the 

court’s decision to impose consecutive 15-years-to-life terms 

for two of the four counts. Because of our conclusion that 

the indeterminate life-maximum terms are unconstitutional

as applied here, we need not reach these additional issues. 
27

prejudice as a result of any alleged deficiency. (Strickland v. 

Washington (1984) 466 U.S. 668, 697; People v. Cox (1991) 

53 Cal.3d 618, 656.)

Testimony regarding CSAAS is inadmissible to prove that 

child abuse occurred. (People v. Patino (1994) 26 Cal.App.4th 

1737, 1744; People v. Bowker (1988) 203 Cal.App.3d 385, 393

(Bowker).) It may, however, be “ ‘admissible for the limited 

purpose of disabusing a jury of misconceptions it might hold 

about how a child reacts to a molestation.’ ” (People v. Wells

(2004) 118 Cal.App.4th 179, 188 (Wells).) “For instance, where 

a child delays a significant period of time before reporting 

an incident or pattern of abuse, an expert could testify that 

such delayed reporting is not inconsistent with the secretive 

environment often created by an abuser who occupies a position 

of trust. Where an alleged victim recants his story in whole 

or in part, a psychologist could testify on the basis of past 

research that such behavior is not an uncommon response for 

an abused child who is seeking to remove himself or herself from 

the pressure created by police investigations and subsequent 

court proceedings.” (Bowker, supra, 203 Cal.App.3d at p. 394.) 

Although the admissibility of CSAAS evidence is dependent 

upon the need, as shown by the evidence, to disabuse jurors of 

misconceptions and myths about reactions to child abuse, the 

prosecutor may offer CSAAS evidence during the case-in-chief

once the victim’s credibility has been placed in issue. (People v. 

Patino, supra, 26 Cal.App.4th at p. 1744; Couzens & Bigelow, 

Sex Crimes: Cal. Law and Procedure (The Rutter Group 2016) 

Trial, § 12.8(d), p. 12-38.)

When expert CSAAS evidence is admissible, the “evidence 

must be tailored to address the specific myth or misconception 
28

suggested by the evidence.” (Wells, supra, 118 Cal.App.4th 

at p. 188.) It must also be “limited to discussion of victims 

as a class . . . and [may] not extend to discussion and diagnosis 

of the witness in the case at hand.” (People v. Roscoe (1985) 

168 Cal.App.3d 1093, 1100.) Lastly, the jury must be instructed 

“that the expert’s testimony is not intended and should not 

be used to determine whether the victim’s molestation claim is 

true.” (Bowker, supra, 203 Cal.App.3d at p. 394.)14 

Defendant and the Attorney General disagree as to 

whether any objection to Dr. Jones’s testimony about CSAAS

would have been sustained. In particular, they dispute whether 

there was any evidence that the victims displayed any behavior, 

such as delaying their disclosure of the abuse or failing to call 

out for help when the lewd conduct occurred, that would have 

made Dr. Jones’s testimony regarding CSAAS relevant. We need 

not decide these issues because even if an objection would have 

had merit and defense counsel was constitutionally deficient 

for failing to assert it, defendant has failed to show a reasonable 

probability that, if Dr. Jones’s testimony was excluded, the result 

of the proceeding would have been different.

Defendant’s defense at trial was that he did not touch G.

or M. as alleged. As defendant argues, this is a “he-said-she-said” 

case in which defendant “denied the molestation” occurred. 

 

14 In the instant case, the jury was instructed: “Jayme 

Jones’[s] testimony about [CSAAS] is not evidence that . . . 

defendant committed any of the crimes charged against him. 

[¶] You may consider this evidence only in deciding whether 

or not [the] complaining witnesses’ conduct was not inconsistent 

with the conduct of someone who has been molested, and in 

evaluating the believability of their testimony.”
29

The evidence that defendant committed the lewd acts, however, 

was compelling. Not only did G. and M. testify that defendant 

had touched their vaginas, but Mario testified that defendant 

admitted to him that he did so, and that he asked Mario 

for forgiveness. And, during his police interview, defendant 

admitted touching and rubbing the girls’ legs and “vagina[s].”

At trial, defendant denied that he made the admission 

to Mario. The denial, however, was impeached with his 

statements to police officers about his conversation with Mario. 

An officer asked him, “when your good friend told you that 

you touched the girls’ vaginas, what did you say?” Defendant 

responded: “I asked for forgiveness. I said, forgive me and it 

won’t happen again. It won’t happen again. I told him like that. 

He knows that I asked for forgiveness and I told him it wouldn’t 

happen again.” The defendant’s response corroborates Mario’s 

testimony regarding the conversation.

Defendant also asserted that he made his admissions 

during the police interview because the officer told him “if I 

wanted to go home, when I came to see the judge, that I should 

do—that I should state there so the judge would believe me.” 

Although this testimony is unclear, it suggests that defendant 

made the admission because the officer told him the admission 

would benefit him when he appeared before “the judge.” The 

transcript of the interview, however, does not support this 

suggestion. Indeed, it was only after defendant had admitted 

touching the girls that he and an officer discussed what would 

happen next. Defendant wanted to know if he was “going to 

get out or what?” The officer told defendant that they will “take 

this to court” and the “court decides what’s going to happen.” 

Defendant then asked for the officer to “help” him. The officer 
30

said that she asked defendant “to tell [her] the truth about 

what happened,” so that she could “explain to the judge, to 

the attorneys what happened.” She would “explain it all” and 

then the “court decides what’s going to happen” and whether 

defendant would “get out or not.” Defendant again asked for 

help and promised the officer “that it won’t happen again.” 

There is nothing to indicate that the officers told or suggested 

to defendant to admit to touching the girls as a means of gaining 

favor before a judge.

Even if the evidentiary prerequisites to CSAAS evidence 

were lacking in this case and, therefore, Dr. Jones’s testimony 

should have been excluded as irrelevant, her testimony was 

limited to the discussion of child abuse victims generally and 

how their seemingly paradoxical behavior can be explained 

by the CSAAS model; she specifically testified that she had 

not interviewed any victims or witnesses in this case and she 

was not in court to render an opinion as to whether G. or M. 

are victims of sexual abuse. The prosecutor did not mention 

Dr. Jones’s testimony in his arguments to the jury, and the 

jury was instructed that her “testimony about [CSAAS] is not 

evidence that . . . defendant committed any of the charged crimes 

against him”; they could “consider this evidence only in deciding 

whether or not [the] complaining witnesses’ conduct was not 

inconsistent with the conduct of someone who has been molested, 

and in evaluating the believability of their testimony.” We 

assume the jury followed this instruction. (See People v. Wilson

(2008) 44 Cal.4th 758, 798.) 

In light of the overwhelming evidence that defendant 

had touched the girls in the manner alleged in counts 1, 2, 4, 

and 5, the lack of support for defendant’s defense, the nature 
31

of Dr. Jones’s testimony, the absence of any reference to her 

testimony during closing arguments, and the court’s instruction 

regarding the limited purpose of the testimony, there is no 

reasonable probability that defendant would have obtained a 

more favorable result if the testimony had been excluded. 

Defendant further argues that Dr. Jones indicated that 

the touching that occurred in this case “was ‘equal’ to ‘a full-on 

penetration of a penis and a vagina,’ ” and thus suggested the 

defendant “was a rapist.” The argument is without merit. In 

the pages defendant cites for this argument, Dr. Jones merely 

testified that in terms of the traumatic impact on a child, the 

closeness of the relationship between the child and the abuser 

tends to be more important than the nature of the abuse. She

also testified that even a “minimal amount of abuse” that does 

not involve sexual penetration can have an effect on the child. 

Nothing in the record suggests that Dr. Jones stated or implied 

that defendant’s touching was equal to sexual penetration or that 

defendant was a rapist.

IV. Court Must Correct Custody Credits

Cadena contends he is entitled to three additional days 

of presentence custody credit because the court miscalculated 

the days that he spent in actual custody. The Attorney General 

concedes the point, and points out the actual number is

four additional days, not three. We agree defendant is entitled 

to four additional days. 

When calculating conduct credit, the court must take into 

account the days of arrest and sentencing, as well as all days in 

between spent in custody. (People v. Bravo (1990) 219 Cal.App.3d 

729, 735.) Defendant was in custody from April 12, 2016 to 

February 22, 2017, which is 317 days, but he was awarded only 
32

313 days of custody credit. He is entitled to the additional 

four days.

V. Defendant’s Argument For Trial Court Discretion 

to Strike the One Strike Law Special Circumstance 

is Moot

Defendant argues that the policies underlying 

recent statutory amendments that grant to trial courts the 

authority to strike or dismiss firearm enhancements under 

section 12022.53 (Stats. 2017, ch. 682, § 2), or prior convictions 

under the Three Strikes law (Stats. 2018, ch. 1013, § 1), should 

be applied to permit the court the same power to strike the 

special circumstance findings under the One Strike law. This 

issue, however, is mooted by our holding that the One Strike law 

was applied in an unconstitutional manner in this case, and that 

defendant should be sentenced under section 288, subdivision (a). 
33

DISPOSITION

The convictions on counts 3 and 6 are vacated based 

on insufficiency of evidence and the sentence is vacated 

as unconstitutionally excessive. The judgment is otherwise 

affirmed. The superior court shall hold a new sentencing 

hearing in accordance with the views expressed herein.

CERTIFIED FOR PARTIAL PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.