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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered 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. 10NF2074)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James 

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

cruel 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 all 

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, the trial court found true allegations appellant 

had previously 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 court imposed consecutive terms 

of 25 years to life on each of the underlying counts. It 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. 
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Appellant argues his sentence is cruel and unusual under the state and 

federal Constitutions. (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 eligible for parole. He asserts 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). He 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 directed 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. (Manduley v. Superior Court (2002) 

27 Cal.4th 537, 552.) Evolving 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 offenders 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-tolife sentence imposed on juvenile offender is the functional equivalent of LWOP and thus 

violates the Eighth Amendment].) However, since appellant was an 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.4th 585, 600-602 (conc. opn. of Mosk, J.).) But 

concurring opinions are not the law (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-

1383), and as appellant acknowledges, the United States and California Supreme Courts 

have upheld the constitutionality of lengthy indeterminate sentences that have been 
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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 not 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 pornography 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 murder, assault with a firearm and 

gang-related offenses. Although he served time 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 responsibility for his actions. 

Appellant 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 theoretical 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, 1089-1090; 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. 
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Mesa (1975) 14 Cal.3d 466, 471), we will modify the abstract 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 restitution 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.