Mandatory sentence of 15 years to life for oral copulation of a minor under the age of 10 years is not cruel and unusual punishment. Baker was convicted of the oral copulation of his six-year-old niece (Pen. Code, § 288.7, subd. (b)) and other sexual offenses. At sentencing the trial court stated the punishment was disproportionate to the crime, but noted it had no discretion to impose less than 15-years-to-life. On appeal, Baker argued his sentence was cruel and unusual under both the federal (Eighth Amend.) and state (Cal. Const., art. I, § 17) Constitutions. Held: Affirmed. A sentence is cruel or unusual under the state 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). Under Lynch, there are three inquiries used to evaluate the constitutionality of the sentence: (1) the nature of the offense and/or the offender; (2) a comparison of the sentence to punishments in the same jurisdiction for different offenses which are deemed more serious; and (3) a comparison of the sentence with the punishments prescribed for the same offense in other jurisdictions having the same/similar constitutional provision. Lewd conduct on a child is a very serious offense. Here, the minor was particularly vulnerable given her age and Baker violated a position of trust by committing three offenses against the minor. Although he had a relatively insignificant criminal history, this did not outweigh the seriousness of the offense. When compared to the sentences provided for similar and more serious sex offenses in California, it is clear the sentence is not excessive. Finally, when compared to punishments for analogous crimes in other states, California’s sentence for violating Penal Code section 288.7, subdivision (b), is not so disproportionate as to render the term unconstitutional.

The mandatory term of 15 years to life for oral copulation of a minor under 10 years of age is not cruel and unusual punishment under the federal Constitution. The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishment. The Eighth Amendment contains a narrow proportionality principle that forbids only extreme sentences that are grossly disproportionate to the crime. The analysis begins by comparing the gravity of the offense and the severity of the sentence. If this leads to an inference of gross disproportionality, the defendant’s sentence is then compared with the sentences received by other offenders in the same jurisdiction and with sentences imposed in other jurisdictions for the same offense. Here, there is no inference of gross disproportionality. Though Baker had a relatively insignificant criminal record and a low recidivism score on his STATIC-99R risk assessment, his three sexual offenses against the minor and his violation of a position of trust weigh against a finding of gross disproportionality.

A claim that a sentence is cruel and unusual punishment requires a fact specific analysis and must be raised in the trial court to preserve the issue on appeal. Although at sentencing the trial court identified a potential Eighth Amendment issue, it was trial counsel’s responsibility to object on that basis on both state and federal grounds in the trial court. This did not occur, thus forfeiting Baker’s claim. On appeal Baker argued that if a specific objection was required, his attorney was ineffective for having failed to make one. The Court of Appeal addressed Baker’s claim to show that trial counsel was not ineffective for failing to raise a meritless objection.

The trial court had the power to decide whether the mandatory prison term in this case was unconstitutional. In sentencing Baker, the trial court imposed the mandatory 15-year-to-life sentence but urged Baker to appeal on the grounds the sentence was cruel and unusual punishment. The trial court had the power to decide the required term was unconstitutional. But even if the trial court misunderstood the scope of its discretion, remand is not required because the indeterminate sentence is not cruel and unusual punishment as a matter of law.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D071383.PDF