Filed 9/20/13 P. v. Bacha CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.

SAMMY BACHIR BACHA , Defendant and Appellant. G046373 (Super. Ct. No. 1 0 NF2 074 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, J ames E dward Rogan, Judge. Affirmed as modified.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Upon being convicted of multiple child sex crimes, appellant was sentenced

to an indeterminate prison term of 180 years to life under the Three Strikes law. He2

contends that because he will not be able to serve his sentence within his lifetime, it is

cru el and unusual as a matter of law. He also makes an unopposed request that we modify the abstract of judgment to reflect the trial court’s ruling on the issue of victim
restitution. We grant the request to amend the abstract and affirm the judgment in al l other respects.
FACTS

We need not set forth a detailed statement of facts to resolve appellant’s sentencing claim because, as he admits, it involves a “pure question of law” and is “not
fact

- based.” Suffice it to say, the record shows appellant repeatedly sexually molested his girlfriend’s daughter when she was 10 and 11 years old. He was convicted of six
counts of lewd conduct with a child and one count of attempting to commit a lewd act on a child. (Pen. Code, §§ 288, subd. (a), 664.) 1 As to four of the counts, the jury found appellant had substantial sexual conduct with the victim , thus prohibiting a grant of probation . ( § 1203.066 , subd. (a)(8) .)

In a bifurcated proceeding, t he trial court found true allegations appellant had previou sly been convicted of one serious felony and six violent “strike” felonies. ( § 667, subds. (a), (d), (e)(2)(A).) The court also found appellant had served a prior prison term. ( § 667.5, subd. (b).)

Pursuant to the Three Strikes law, the trial cou rt imposed consecutive terms
of 25 years to life on each of the underlying counts . I t then added a five

- year term for the prior serious felony conviction , bringing appellant’s total term of imprisonment to 180

years to life.

I

1 All further statutory references are to the Penal Code.3 Appellant argues hi s sentence is cruel and unusual under the state and
federal C onstitution s . ( Cal. Const., art. I, § 17; U.S. Const. 8th Amend. ) We disagree.

Appellant ’s argument is based on the undeniable truth that he will die in prison before he is eli gible for parole. He a sserts that no matter what crimes he committed in this case or others, his sentence is unconstitutional as a matter of law because it effectively amounts to a term of life in prison without the possibility of parole (LWOP). H e objects to the label attached to his sentence , arguing it offends the notion of human dignity to call his sentence “indeterminate , ” when everyone knows his death will precede his parole eligibility date.

Appellant’s call for greater truth in sentencing is d irected to the wrong branch of government. While the judiciary has the constitutional authority to declare a particular criminal sentence cruel and unusual , the power to determine the appropriate penalty for crimes lies within the legislative branch. ( Ma nduley v. Superior Court (2002) 27 Cal.4th 537, 552.) E volving standards of human decency have led to a ban on certain types of punishment for certain types of offenders. For example, the United States Supreme Court has determined that juvenile offender s cannot be sentenced to death or
LWOP. ( Roper v. Simmons (2005) 543 U.S. 551 ; Miller v. Alabama (2012) 567 U.S. __ [ 132 S.Ct. 2455 ] ; see also People v. Caballero (2012) 55 Cal.4th 262, 272 [110

- year

- to

life sentence imposed on juvenile offender is the functional equivalent of LWOP and thus violates the Eighth Amendment] .) However, since appellant was a n adult at the time he committed his present offenses , he does not fall within the ambit of these decisions.

The only shred of support for appellant’s position is a concurring opinion in which Justice Mosk decried multicentury sentences as being oblivious to life expectancy tables. ( People v. Deloza (1998) 18 Cal.4 th 585, 600

- 602 (conc. opn. of Mosk, J.).) But concurring opinions are not the law ( People v. Byrd (2001) 89 Cal.App.4 th 1373, 1382

- 1383), and as appellant acknowledges, the United States and California Supreme Courts have upheld the constitutionali ty of lengthy indeterminate sentences that have been4

imposed pursuant to the Three Strikes law. (See, e.g., Lockyer v. Andrade (2003) 538 U.S. 63 [50 years to life]; People v. Ayon (1996) 46 Cal.App.4th 385 , overruled on other grounds in People v. Deloza , supra, 18 Cal.4th at pp. 593

- 595 [ 225 years to life ]; People v. Cartwright (1995) 39 Cal.App.4th 1123 [375 years to life].)

The upshot of these decisions is that extensive criminality may be met with strict and sometimes severe punishment. Appellant n ot only engaged in serious and repeated sexual misconduct with the victim in this case, he abused his position of trust as the boyfriend of her mother and exhibited a high degree of cruelty and callousness by making her taste his semen, exposing her to por nography and telling her he liked her
more than he liked her mother. His lengthy criminal record extends back to when he was a juvenile and includes convictions for attempted m urder, assault with a firearm and

gang

- related offenses. A lthough he served ti me in prison for these crimes, that obviously did not deter him from committing the offenses for which he was currently convicted. And at sentencing, he tried to lay some of the blame for what happened at his girlfriend’s
feet , rather than taking full res ponsibility for his actions.

A ppellant has demonstrated the necessary propensities to warrant a lengthy prison sentence. ( Rummel v. Estelle (1980) 445 U.S. 263, 284

- 285.) The fact his sentence exceeds his life expectancy is fodder for theoret ical musing, but it does not, either in the abstract or as applied to his particular circumstances, render his sentence
unconstitutional under current legal standards. ( People v. Haller (2009) 174 Cal.App.4th 1080, 1089

- 109 0 ; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230

- 1231; People v. Byrd, supra , 89 Cal.App.4th at pp. 1382

- 1383.)
II At sentencing, the trial court retained jurisdiction for the limited purpose of determining restitution. ( § 1202.4, subd. (f).) However, the abstract of judgment states restitution is to be determined by the Department of Corrections and Rehabilitation. As the court’s oral pronouncement of judgment prevails over the clerical record ( People v.5

Mesa (1975) 14 Cal.3d 466, 471), we will modify the abstrac t of judgment to reflect the
trial court ’s decision to retain jurisdiction on the issue of restitution.
DISPOSITION The judgment is modified to provide that the trial court retains jurisdiction
to set the amount of r estitution pursuant to section 1202.4. The clerk of the trial court is directed to prepare an amended abstract of judgment reflecting this modification and send a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.