A 15-years-to-life sentence for sexual penetration of a child 10 years or younger (Pen. Code, § 288.7, subd. (b)) is not a cruel and unusual punishment. Gomez was convicted of several crimes involving the molestation of his girlfriend’s daughter, which occurred over several years when the victim was between 3 and 8 years old. He was sentenced to 15 years to life for the section 288.7, subdivision (b) conviction. He appealed, arguing that the sentence constitutes cruel and unusual punishment because it is disproportionate to his criminal culpability and history and to punishments for other similar crimes. Held: Affirmed (but remanded for resentencing for other issues in unpublished portion). A sentence may be cruel and/or unusual 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. The court must examine the nature of the offense (such as the way the crime was committed, the extent of defendant’s involvement, and the consequences of his actions) as well as the nature of the offender (such as his individual culpability, age, prior criminality, personal characteristics, and state of mind). Here, Gomez was in a position of a father figure to the young girl, used the trust placed in him by other family members, and instilled fear by threats of harm to the girl and her family in order to commit these crimes. Gomez argued that a 15-years-to-life sentence is equal to that imposed for second degree murder and greater than the sentences for first degree robbery, forcible rape, or forcible sodomy. However, it is within the prerogative of the Legislature to determine that sex offenses against young children are deserving of longer sentences.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/G055352.PDF