P. v. Cervantes

Filed 3/30/21 P. v. Cervantes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
LUIS JAVIER CERVANTES,
Defendant and Appellant.
G057340
(Super. Ct. No. 15CF0911)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed as modified. Request for Judicial Notice. Granted.
Cynthia M. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D.
Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

-- 1 of 28 --

2
INTRODUCTION
Defendant Luis Javier Cervantes appeals from the judgment of conviction
entered after a jury found him guilty of forcible spousal rape, assault with intent to
commit a sexual offense during the commission of a first degree burglary, aggravated
assault, and unlawful taking of a vehicle. The trial court sentenced defendant to a
four-year prison term for aggravated assault, a two-year concurrent term for unlawful
taking of a vehicle, a consecutive 25-years-to-life term for forcible spousal rape pursuant
to the “One Strike” law (Pen. Code, § 667.61),1 made applicable by the jury’s finding that
the offense was committed during the commission of a first degree burglary, and a
concurrent life term for the assault with intent to commit a sexual offense.
We affirm the judgment with only one modification: The execution of
sentence on the assault with intent to commit a sexual offense during the commission of a
first degree burglary count should be stayed under section 667.61, subdivision (f) instead
of imposed as a concurrent term. None of defendant’s other contentions has merit.
Defendant’s one-strike sentence of 25-years-to life for forcible spousal rape
does not constitute cruel and/or unusual punishment under the Eighth Amendment to the
United States Constitution or the California Constitution. Defendant’s exclusion from
any entitlement to a youthful offender parole hearing under section 3051, pursuant to
subdivision (h) of that section, has a rational basis and does not violate his constitutional
right to equal protection. Even if defendant did not forfeit his contention the trial court
erred by failing to determine defendant’s ability to pay the assessments and fine, this
contention lacks merit. Defendant does not claim he will face significant consequences
from nonpayment of the fees and nothing suggests he will be unable to pay them off by
working in prison during his lengthy sentence.
1 All further statutory references are to the Penal Code unless otherwise specified.

-- 2 of 28 --

3
Because we modify the judgment to stay execution of sentence on the
assault with the intent to commit a sexual offense count, we do not need to decide
whether execution of sentence on that count should have been otherwise stayed under
section 654.
FACTS
Defendant and S.G. met in high school. After S.G. became pregnant with
the couple’s first son, they both dropped out of school and lived with defendant’s parents.
After S.G. became pregnant with their second son, defendant and S.G.’s relationship
started to change. Defendant started drinking alcohol, using drugs, and going out with
friends; defendant and S.G. argued.
After their second son was born in 2009, defendant and S.G. moved into
their own apartment. Defendant’s drinking triggered arguments which occurred with
greater frequency. Defendant and S.G. argued about defendant’s jealousy issues and S.G.
being on her phone too much and not paying attention to defendant. Notwithstanding
their increasingly frequent arguments, the couple married in 2011.
One evening in February 2012, defendant called the police after he and S.G.
had been arguing. The police arrived at the couple’s apartment around 10:30 p.m.
Defendant told the police officers that S.G. had been hitting him. The police told
defendant to stay that night at his mother’s apartment, which was a few doors down in the
same apartment complex, and that S.G. and their two young children should remain in the
apartment. The police warned that if they had to return, someone would be arrested.
S.G. went to bed with the children and woke up to the front door of the
apartment opening. S.G. saw defendant grabbing bags. She closed the door, but
defendant jumped into the apartment through the window and said he was there for his
belongings. S.G. told him to leave because the police had asked him to stay at his

-- 3 of 28 --

4
mother’s apartment and he had agreed. Defendant told S.G. that he felt like “fucking
[her] up.” He rushed toward S.G. and hit her in the face with his closed fist. S.G. hit
defendant back as she tried to break free and get out of the apartment. At some point, she
fell to the floor and defendant got on top of her and started to choke her. Defendant also
grabbed a wooden easel and broke it on her back when she tried to run out of the
apartment.
S.G. was eventually able to escape and ran to defendant’s parents’ house;
defendant’s mother called the police. Charges were filed against defendant, but S.G.
refused to testify against him because of her concern for their children and because
defendant would have been deported if he were convicted. After defendant was released
from jail, he and S.G. got back together and continued to live together with their children.
Their relationship temporarily improved. Defendant was not drinking and going out with
his friends. But once again, their relationship started to deteriorate.
In November 2014, defendant, S.G., and their children moved in with
S.G.’s mother. About three months after the move, S.G. asked defendant to move out of
the apartment. This request followed an incident during which defendant asked S.G. why
she was smiling while she texted on her cell phone; he told her he wanted to look at her
phone. S.G. agreed to show defendant her cellphone but told him that if he did not find
anything, she wanted him to move out. S.G. thereafter let defendant look at her phone;
he found nothing. S.G. told defendant she had had it with his jealously, that she had not
been cheating on him, and that he was moving out. Defendant agreed to leave. He did
not have a key to the apartment. S.G. told her mother what had happened and S.G.’s
mother agreed defendant should no longer live in the apartment.
For two weeks defendant and S.G. exchanged text messages which
included S.G. telling defendant “it’s over,” she was not going to go back to their
miserable life, and she did not love him. At some point, defendant texted he was coming
over to the apartment. During this time, because S.G. had a car and her mother did not

-- 4 of 28 --

5
drive, S.G. would drive her mother to work for her midnight shift and bring the children
along with her. The day she received defendant’s text that he was going to come over to
the apartment, she and the children stayed overnight at a hotel after dropping S.G.’s
mother off at work.
On Wednesday, April 29, 2015, S.G. took the children with her when she
drove her mother to work. She was not worried that defendant would show up at the
apartment that night, so she and the children returned home around 12:40 a.m. After they
walked into the apartment, she told the children to go to bed and she sat down at the table
looking at her cell phone.
About 10 minutes later, S.G. got up to use the restroom. She noticed her
mother’s bedroom door was slightly open; she knew something was wrong because her
mother was allergic to their two cats and always kept her door closed. She could see the
bathroom door was also slightly open and the light was on. S.G. looked inside the
bedroom; once she closed the door, she saw defendant open the bathroom door. Holding
a knife in one hand, defendant placed his other hand on S.G.’s throat, shoved her against
the wall, and told her to “just shut the fuck up.” Defendant was sweating and shaking.
He smelled like garbage and appeared nervous.
Defendant looked at S.G. “from head to toe” and tried to tear her shirt off.
He told her to take her clothes off. She was afraid of him and did what he told her to do.
He told her to get on her knees and pushed her to bend over. She asked defendant, “Are
you going to rape me?” and defendant responded, “Yes.” Defendant tried to penetrate
S.G. but initially could not get an erection. She felt him use his fingers to penetrate her
and also felt that he had cut her vaginal area with a knife. After he got an erection and
ejaculated a minute or two later, S.G. told him she needed to use the restroom. He
thought about her request for a few minutes and then allowed her to use the bathroom
with the door open; he stood by the open bathroom door and told her he did not trust her.

-- 5 of 28 --

6
After she came out of the bathroom, he directed her to sit down on the
floor; she complied. Defendant also sat down on the floor. S.G. saw the knife on the
floor at his side. S.G. saw that defendant also had a BB gun, which resembled a firearm,
that he placed on the floor.
Defendant started talking about wanting to go to Tijuana and asked S.G. to
take him but then also said he did not trust her. He drank beer and appeared to be high
during this conversation that lasted around 30 to 40 minutes. Defendant told S.G. that he
wanted her to call the police and that his plan was once they arrived, he would go outside
with the BB gun so they would shoot him and thus he would commit suicide by police
officer.2 He also said he could commit suicide in the bathroom, but he did not want the
children to see that. More than once he told her he did not want to leave his children
without a mother.
Defendant asked S.G. to let him see her cell phone and S.G. gave it to him.
He asked her to unlock the phone, but she was unable to do so because she was shaking
so much; he became angry. Instead of unlocking the phone, she pressed the emergency
call button and the phone started to ring loudly. Defendant took the phone away from her
and removed the battery from the phone. He then hit S.G. four times with a closed fist.
She began to bleed heavily from her head.
Defendant opened the door to the living room and retrieved her car keys.
She asked him not to take the car, but he said he was going to take the car. He called his
brother, told him he “[f]ucked up,” and asked him to come and get S.G. Defendant then
left the apartment and drove away in S.G.’s car. S.G. walked outside the apartment,
called 911, and hid in the bushes until the authorities arrived. S.G.’s car was found in a
nearby city the following day.
2 Defendant had previously attempted to commit suicide in 2010 and 2013.

-- 6 of 28 --

7
PROCEDURAL HISTORY
Defendant was charged in an amended information with one count each of
forcible spousal rape in violation of section 262, subdivision (a)(1) (count 1); sexual
penetration by foreign object and force in violation of section 289, subdivision (a)(1)(A)
(count 2); assault with intent to commit a sexual offense during the commission of first
degree burglary in violation of section 220, subdivision (b) (count 3); aggravated assault
in violation of section 245, subdivision (a)(1) (count 4); and unlawful taking of vehicle in
violation of Vehicle Code section 10851, subdivision (a) (count 5).
As to counts 1 and 2, the amended information alleged, pursuant to sections
667.61, subdivisions (a) and (d)(4), that defendant committed those offenses during the
commission of a burglary as defined in section 460, subdivision (a), with the intent to
commit an offense specified in 667.61, subdivision (c). As to counts 1 and 2, it further
alleged, pursuant to section 667.61, subdivisions (b) and (e)(3), that in the commission of
those offenses, defendant personally used a dangerous and deadly weapon—a firearm—
in violation of sections 12022, 12022.3, 12022.5, and 12022.53.
As to count 4, the amended information contained a sentencing
enhancement allegation under section 12022.7, subdivision (a), and within the meaning
of sections 1192.7 and 667.5, that defendant personally inflicted great bodily injury on
S.G. in the commission of the aggravated assault.
The jury was unable to reach a verdict on count 2, and the trial court
declared a mistrial as to that count; the court later granted the prosecutor’s motion to
dismiss count 2. The jury found defendant guilty on the remaining counts and found the
additional allegations as to count 1 to be true; the jury did not find the sentencing
enhancement allegation as to count 4 to be true.
The trial court sentenced defendant to a prison term of 25 years to life on
count 1; pursuant to section 667.61, subdivision (f), the court stayed punishment as to the
personal use of a firearm allegation on count 1. As to count 3, the court imposed a

-- 7 of 28 --

8
concurrent term of life in prison with the possibility of parole. On count 4, the court
imposed the upper prison term of four years and imposed a sentence of two years on
count 5, to run concurrently to the prison term imposed on count 4.
The trial court imposed the following fees and fines: (1) a mandatory state
restitution fine of $300 pursuant to section 1202.4; (2) a $40 court operations assessment
fee per convicted count pursuant to section 1465.8; and (3) a criminal conviction
assessment fee of $30 per convicted count under Government Code section 70373,
subdivision (a)(1).
The trial court did not impose the $300 sex offense fine pursuant to section
290.3 and waived the cost of the probation report, citing defendant’s inability to pay.
Defendant appealed.
REQUEST FOR JUDICIAL NOTICE
Defendant filed a request, pursuant to rule 8.252 of the California Rules of
Court and Evidence Code sections 452, subdivision (c) and 459, subdivision (a), that this
court take judicial notice of legislative history including: (1) Legislative Counsel’s
Digest of Senate Bill No. 260 (2013-2014 Reg. Sess.) section 1; (2) Senate Committee on
Public Safety, Senate Bill No. 1402 (2005-2006 Reg. Sess.) March 24, 2006;
(3) Assembly Committee on Public Safety, Senate Bill No. 26X (1993-1994 Reg. Sess.)
August 15, 1994; (4) Bill Analysis, Senate Bill No. 26X (1993-1994 Reg. Sess.) May 25,
1994; (5) Senate Committee on Judiciary, Assembly Bill No. 1029 (1993-1994
Reg. Sess.) May 16, 1994; (6) Senate Committee on Judiciary, Senate Bill No. 26X
(1993-1994 Reg. Sess.) February 2, 1994; and (7) Assembly Third Reading, Assembly
Bill No. 1029 (1993-1994 Reg. Sess.) January 31, 1994. The Attorney General has not
filed an opposition to defendant’s request. Defendant’s request is granted.

-- 8 of 28 --

9
DISCUSSION
I.
DEFENDANT’S ONE STRIKE SENTENCE OF 25 YEARS TO LIFE ON COUNT 1 DOES NOT
CONSTITUTE CRUEL AND/OR UNUSUAL PUNISHMENT UNDER EITHER THE FEDERAL OR
CALIFORNIA CONSTITUTIONS.
Defendant contends his sentence of 25 years to life on count 1, imposed by
application of section 667.61, violates the state constitution’s prohibition on cruel or
unusual punishment (Cal. Const., art. I, § 17) and the federal constitution’s prohibition on
cruel and unusual punishment (U.S. Const., 8th Amend.). Section 667.61, sometimes
referred to as the One Strike law (People v. Anderson (2009) 47 Cal.4th 92, 99),
“mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that
are committed under one or more ‘aggravating circumstances’ . . . . [Citations.] The
purpose of the One Strike law is ‘to ensure serious and dangerous sex offenders would
receive lengthy prison sentences upon their first conviction,’ ‘where the nature or method
of the sex offense “place[d] the victim in a position of elevated vulnerability.”’” (People
v. Alvarado (2001) 87 Cal.App.4th 178, 186 (Alvarado).) Specified sex offenses under
section 667.61 include spousal rape. (§ 667.61, subd. (c)(2).) Circumstances enhancing
a sentence to 25 years to life include “commit[ting] the present offense during the
commission of a burglary of the first degree . . . with an intent to commit an offense
specified in subdivision (c) [spousal rape].” (§ 667.61, subd. (d)(4).)
Defendant did not raise his constitutional challenges at the sentencing
hearing. Although the argument may be deemed forfeited, “[n]onetheless, we shall reach
the merits under the relevant constitutional standards, in the interest of judicial economy
to prevent the inevitable ineffectiveness-of-counsel claim.” (People v. Norman (2003)
109 Cal.App.4th 221, 229-230.)

-- 9 of 28 --

10
A.
California Constitution
1.
The Law
Article I, section 17 of the California Constitution prohibits infliction of
“[c]ruel or unusual punishment.” A prison sentence might violate this prohibition 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.’” (People v. Dillon (1983) 34 Cal.3d
441, 478.) A defendant has a “considerable burden” to show a punishment is cruel or
unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
“The doctrine of separation of powers is firmly entrenched in the law of California, and a
court should not lightly encroach on matters which are uniquely the domain of the
Legislature. Perhaps foremost among these are the definition of crime and the
determination of punishment.” (Ibid.) It is therefore only in the “‘rarest of cases’” that a
court may declare a punishment mandated by the Legislature to be “‘unconstitutionally
excessive.’” (People v. Meneses (2011) 193 Cal.App.4th 1087, 1093.)
We use a three-part test to determine whether a particular sentence is
disproportionate to the offense for which it is imposed. First, we examine “the nature of
the offense and/or the offender, with particular regard to the degree of danger both
present to society.” (In re Lynch (1972) 8 Cal.3d 410, 425.) Second, we compare the
punishment imposed with punishments prescribed by California law for more serious
offenses. (Id. at pp. 426-427.) Third, we compare the punishment imposed with
punishments prescribed by other jurisdictions for the same offense. (Id. at pp. 427-429.)
In applying the three-part test, we consider the “‘totality of the circumstances’”
surrounding the commission of the offense. (People v. Rhodes (2005) 126 Cal.App.4th
1374, 1389.) The importance of each part of this test depends on the facts of the case.
(People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)

-- 10 of 28 --

11
Defendant’s argument his sentence was constitutionally disproportionate is
solely based on the first part of the test. Considering “the nature of the offense and/or the
offender, with particular regard to the degree of danger both present to society” (In re
Lynch, supra, 8 Cal.3d at p. 425), we note that forcible rape, as well the other offenses
identified in section 667.61, subdivision (c), are horrible crimes in and of themselves.
Committing such crimes in the course of committing first degree burglary justifies the
enhanced sentence. In Alvarado, supra, 87 Cal.App.4th at pages 199 to 201, the court
held an indeterminate life sentence under section 667.61, subdivisions (b) and (e)(2) for
committing rape during the course of a burglary did not constitute cruel or unusual
punishment under the California Constitution. In People v. Estrada (1997)
57 Cal.App.4th 1270, 1277, 1282, and People v. Crooks (1997) 55 Cal.App.4th 797,
803-809, the courts held enhanced sentences of 25 years to life in prison under section
667.61, subdivisions (a), (c), and (d) for committing forcible rape during the commission
of a burglary with the intent to commit forcible rape did not constitute cruel or unusual
punishment under the California Constitution.
Defendant argues that although the forcible spousal rape offense committed
in this case constituted a serious crime, his 25-year-to-life sentence is disproportionate
when the nature of the offense and offender are considered. Notwithstanding the
Legislature’s decision to include spousal rape in the qualifying offenses subject to
increased punishment, defendant argues his punishment is disproportionate because a
rape of an estranged spouse, such occurred in this case, does not involve “the archetypal
rape during a home invasion” involving “non-spousal situations where the rapist was, at
most, an acquaintance to the victim.” He further argues the crime was the product of a
24-year-old’s immaturity in dealing with jealousy issues and problems with substance
abuse. Defendant also cites S.G.’s statements presented at the sentencing hearing
requesting he be given a lighter sentence as support for his argument the offense here is
less serious, warranting a lighter sentence.

-- 11 of 28 --

12
Defendant’s contention of disproportionality is without merit. The
Legislature has determined that rape in violation of section 261 and forcible spousal rape
in violation of section 262 be punished in the same manner. (§§ 264, subd. (a), 667.61;
see People v. Hillard (1989) 212 Cal.App.3d 780, 784 [“It is evident that the Legislature
added Penal Code section 262 for the sole purpose of eliminating the marital exemption
for forcible spousal rape, and not to define a new and separate offense, apart from rape by
a stranger, of spousal rape”].) Furthermore, “[t]he purpose of the One Strike law is ‘to
ensure serious and dangerous sex offenders would receive lengthy prison sentences upon
their first conviction,’ ‘where the nature or method of the sex offense ‘place[d] the victim
in a position of elevated vulnerability.’” (Alvarado, supra, 87 Cal.App.4th at p. 186.)
Here, defendant’s commission of forcible spousal rape occurred in a
context that placed S.G. in a position of elevated vulnerability. The trial evidence
showed while S.G. was out dropping her mother off at work in the middle of the night,
defendant snuck into S.G.’s apartment and hid in the bathroom until S.G. returned to the
apartment and the children settled down to sleep. He thereafter suddenly emerged from
the bathroom, grabbed her throat, and shoved her into the wall before telling S.G. that he
was going to rape her, which he then did at knifepoint. The record does not show
defendant and S.G.’s marital status or relationship rendered S.G. less vulnerable or this
offense less violent or traumatic.
Although defendant may have been immature and struggled with substance
abuse, there is no evidence of or contention that defendant had a mental defect. In
Alvarado, supra, 87 Cal.App.4th at pages 199 to 200, the appellate court rejected the
defendant’s cruel and/or unusual challenge to his sentence and stated in part:
“Defendant’s troubled background, lack of a criminal record, and sincere remorse may
militate for a more lenient punishment. However, his age [18 years], substance abuse,
and ‘immature dependent personality disorder’ do not suggest that he failed to grasp the
nature and consequences of his conduct and thereby further support more lenient

-- 12 of 28 --

13
treatment. Despite defendant’s age, substance abuse, and disorder, he fully recognized
and acknowledged the magnitude of his conduct immediately after being caught.
Moreover, the callous and opportunistic nature of his sexual assault against a neighbor he
knew to be particularly vulnerable seems to us precisely the sort of sexual offense that
warrants harsh punishment.”
Here, defendant was 24 years old, several years over the age of the
majority, at the time he committed the offense. The record shows he understood the
nature and consequences of his conduct as evidenced by his call to his brother stating he
had “fucked up” and his flight in S.G.’s car. That S.G. requested a lighter sentence for
the offense does not render the offense less serious, or the sentence cruel or unusual
punishment. Under the totality of the circumstances, defendant’s 25-years-to-life
sentence was not disproportionate with regard to the nature of the offense or the offender.
Defendant does not argue that either the second part (a comparison of the
punishment imposed with other punishments prescribed by California law for more
serious offenses) or the third part (a comparison of the punishment imposed with
punishments prescribed by other jurisdictions for the same offense) of the test shows
defendant’s 25-years-to-life sentence is disproportionate to his offense. (In re Lynch,
supra, 8 Cal.3d at pp. 426-429.)
B.
United States Constitution
The Eighth Amendment to the United States Constitution states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” For noncapital cases, the Eighth Amendment contains a
proportionality principle, but it is “‘narrow.’” (Ewing v. California (2003) 538 U.S. 11,
20.) The appropriate standard for determining whether a particular sentence for a term of
years violates the Eighth Amendment is gross disproportionality. That is, “[t]he Eighth
Amendment does not require strict proportionality between crime and sentence. Rather,

-- 13 of 28 --

14
it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.
[Citations.]” (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy,
J.), citing Solem v. Helm (1983) 463 U.S. 277, 288.) Successful challenges based on
gross disproportionality are “‘exceedingly rare’” and appear only in an “‘extreme’” case.
(Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
The companion cases of Ewing v. California, supra, 538 U.S. 11 and
Lockyer v. Andrade, supra, 538 U.S. 63, demonstrate the very narrowness of the Eighth
Amendment’s disproportionality principle. Gary Ewing was sentenced to a term of
25 years to life under California’s Three Strikes law for stealing three golf clubs priced at
$399 each, as petty theft with a prior conviction for theft. (Ewing v. California, supra, at
pp. 18, 20.) The United States Supreme Court applied the principles of gross
disproportionality and deference to legislative policy choices to conclude that Ewing’s
sentence of 25 years to life “is not grossly disproportionate and therefore does not violate
the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Id. at
pp. 30-31.) Leandro Andrade was sentenced under California’s Three Strikes law to two
consecutive terms of 25 years to life on two counts of petty theft with prior theft-related
convictions. (Lockyer v. Andrade, supra, at p. 68.) On habeas corpus review, the United
States Supreme Court rejected Andrade’s claim that his sentence violated the prohibition
against cruel and unusual punishment, holding “it was not an unreasonable application of
our clearly established law for the California Court of Appeal to affirm Andrade’s
sentence of two consecutive terms of 25 years to life in prison.” (Id. at p. 77.)
If terms of 25 years to life and 50 years to life are not “‘grossly
disproportionate’” (Harmelin v. Michigan, supra, 501 U.S. at p. 1001 (conc. opn. of
Kennedy, J.) to the crime of petty theft with prior theft convictions, then a sentence of
25 years to life is not grossly disproportionate to the crime of forcible spousal rape during
the commission of first degree burglary. Defendant’s sentence therefore does not violate
the Eighth Amendment to the United States Constitution.

-- 14 of 28 --

15
II.
ASSAULT WITH INTENT TO COMMIT RAPE IN THE COMMISSION OF A FIRST DEGREE
BURGLARY CHARGED IN COUNT 3 IS NOT A LESSER INCLUDED OFFENSE OF FORCIBLE
SPOUSAL RAPE CHARGED IN COUNT 1.
Defendant contends his conviction on count 3 for assault with the intent to
commit rape must be stricken because it is a lesser included offense of his conviction of
spousal rape by force. Defendant’s contention is without merit.
“While section 654 prohibits multiple punishment, it is generally
permissible to convict a defendant of multiple charges arising from a single act or course
of conduct. [Citations.] However, a ‘judicially created exception to this rule prohibits
multiple convictions based on necessarily included offenses. [Citations.]’ [Citation.] [¶]
When a defendant is found guilty of both a greater and a necessarily lesser included
offense arising out of the same act or course of conduct, and the evidence supports the
verdict on the greater offense, that conviction is controlling, and the conviction of the
lesser offense must be reversed. [Citations.] If neither offense is necessarily included in
the other, the defendant may be convicted of both, ‘even though under section 654 he or
she could not be punished for more than one offense arising from the single act or
indivisible course of conduct.’” (People v. Sanders (2012) 55 Cal.4th 731, 736.)
“‘Under California law, a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually alleged
in the accusatory pleading, include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.’” (People v. Breverman
(1998) 19 Cal.4th 142, 154, fn. 5.)
Here, defendant argues that count 3 is a lesser included offense of count 1
by application of the elements test. “The elements test is satisfied if the statutory
elements of the greater offense include all of the statutory elements of the lesser offense,
such that all legal elements of the lesser offense are also elements of the greater.

-- 15 of 28 --

16
[Citation.] In other words, ‘“[I]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.”’
[Citations.] Under the accusatory pleading test, a lesser offense is included within the
greater charged offense if the facts actually alleged in the accusatory pleading include all
of the elements of the lesser offense.” (People v. Bailey (2012) 54 Cal.4th 740, 748.)
In this case, as the jury was instructed, to find defendant guilty of forcible
spousal rape as charged in count 1, the prosecution had to prove (1) defendant had sexual
intercourse with S.G.; (2) he and S.G. were married to each other at the time of the
intercourse; (3) S.G. did not consent to the intercourse; and (4) defendant accomplished
the intercourse by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to S.G. or to someone else.
As to count 3, the jury was instructed that to find defendant guilty of assault
with intent to commit rape in the commission of first degree burglary in violation of
section 220, subdivision (b), the prosecution had to prove (1) defendant did an act that by
its nature would directly and probably result in the application of force to a person;
(2) defendant did that act willfully; (3) when defendant acted, he was aware of facts that
would lead a reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; (4) when defendant acted, he had
the present ability to apply force to a person; (5) when defendant acted, he intended to
commit rape; and (6) when defendant acted, he was committing a first degree burglary.
Under the elements test, the assault offense charged as count 3 is not a
lesser included offense of forcible spousal rape charged as count 1 because count 3
includes the required element that the assault be committed in the commission of first
degree burglary, an element that is not required to prove forcible spousal rape.
Although defendant does not expressly analyze the accusatory pleading
test, he contends that because the amended information contained the One Strike
allegation that defendant committed the forcible spousal rape offense during the

-- 16 of 28 --

17
commission of a first degree burglary, for purposes of analyzing lesser included offenses,
count 1 as pleaded includes the first degree burglary element, which renders count 3 a
lesser included offense of count 1.
It is well established that sentencing enhancement allegations are not
considered part of an offense for the purpose of determining lesser included offenses.
(People v. Wolcott (1983) 34 Cal.3d 92, 100-101 (Wolcott).) It is also well established
that alternative sentencing allegations like those under the One Strike law are not
considered traditional sentencing enhancement allegations but rather part of an
“‘alternative sentencing scheme.’” (People v. Woods (2015) 241 Cal.App.4th 461, 479,
fn. 14 (Woods).)
In Woods, supra, 241 Cal.App.4th at page 480, the appellate court
considered whether an allegation made pursuant to the One Strike law is to be considered
together with the substantive charge to allege a single offense for purposes of
determining lesser included offenses under the accusatory pleading test and concluded it
is not. The court noted: “Although technically not an ‘enhancement’ allegation, an
allegation of specific facts that would place the defendant on notice that he is subject to
the alternative sentencing scheme of the One Strike law is similar to an ‘enhancement’ in
ways that are significant for purposes of making determinations as to whether an
instruction on a lesser included offense is required.” (Ibid.)
In analyzing whether One Strike allegations should be considered in
applying the accusatory pleading test, the Woods court cited Wolcott in which the
Supreme Court explained its reasons for adopting the rule that traditional sentencing
enhancement allegations should not be considered to be part of the accusatory pleading
for purposes of defining lesser included offenses. (Woods, supra, 241 Cal.App.4th at
p. 480.) The appellate court also cited People v. Anderson, supra, 47 Cal.4th at pages
102 to 103, in which the Supreme Court noted the similarity between the factual
allegations necessary for application of the One Strike law and the factual allegations

-- 17 of 28 --

18
necessary for statutory sentencing enhancements. (Woods, supra, 241 Cal.App.4th at
p. 481.)
In Woods, supra, 241 Cal.App.4th at page 482, the court noted that in the
case before it, the One Strike allegations against the defendant operated in the same way
that the enhancement allegation operated in Wolcott, as a review of the verdict forms
confirmed. The verdict forms in Woods demonstrated the step-by-step procedure by
which the jury was charged with first determining the defendant’s guilt on the substantive
offense of forcible rape, without regard to any One Strike qualifying allegation. (Woods,
supra, 241 Cal.App.4th at p. 482.) Only after the jury determined the defendant was
guilty of forcible rape did the jury determine whether the One Strike allegation was true.
(Ibid.)
Similarly, here, the verdict forms demonstrate that the jury was first asked
to determine defendant’s guilt of the substantive crime of forcible spousal rape without
regard to whether that crime was committed during the commission of a first degree
burglary. Only after the jury determined defendant’s guilt on the forcible spousal rape
count did the jury consider whether defendant committed that offense in the commission
of a first degree burglary. (See Wolcott, supra, 34 Cal.3d at p. 101 [“This orderly, step-
by-step procedure would become muddled if evidence of the enhancement must be
considered in determining guilt of a lesser offense”].)
We agree with Woods that the Wolcott rule governing sentencing
enhancements applies to One Strike law allegations, meaning “we do not consider the
sentencing allegation for purposes of determining whether the accusatory pleading
describes a greater offense in such a way that all the elements of a lesser offense are
included.” (Woods, supra, 241 Cal.App.4th at p. 482.) Therefore, as in Woods, absent
the One Strike allegation that defendant committed forcible spousal rape during the
commission of first degree burglary, the forcible spousal rape count simply does not

-- 18 of 28 --

19
encompass the lesser offense of assault with the intent to commit a sexual offense in the
commission of a burglary. (See Woods, supra, 241 Cal.App.4th at p. 482.)
III.
THE TRIAL COURT ERRED BY FAILING TO STAY EXECUTION OF SENTENCE ON COUNT 3
UNDER SECTION 667.61, SUBDIVISION (f).
Defendant argues count 3 must be stayed pursuant to section 667.61,
subdivision (f) because count 3 “imposed punishment based on a burglary that was also
the sole triggering circumstance for the one-strike sentence on Count 1.” Subdivision (f)
of section 667.61 provides: “If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided in subdivision (a),
(b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those
circumstances shall be used as the basis for imposing the term provided in subdivision
(a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the
punishment authorized under any other provision of law, unless another provision of law
provides for a greater penalty or the punishment under another provision of law can be
imposed in addition to the punishment provided by this section. However, if any
additional circumstance or circumstances specified in subdivision (d) or (e) have been
pled and proved, the minimum number of circumstances shall be used as the basis for
imposing the term provided in subdivision (a), (j), or (l) and any other additional
circumstance or circumstances shall be used to impose any punishment or enhancement
authorized under any other provision of law.” (Italics added.)
Defendant argues: “The trial court imposed a term of 25 years to life on
Count 1, for rape occurring during commission of a burglary pursuant to section 667.61,
subdivisions (a), (c)(1) and (d)(4). [Citation.] In addition, the court imposed a life
sentence on Count 3 for assault with intent to commit rape during the commission of a
burglary pursuant to section 220, subdivision (b). [Citation.] Because Count 3 imposed
punishment based on a burglary that was also the sole triggering circumstance for the

-- 19 of 28 --

20
one-strike sentence on Count 1, the sentence on Count 3 should have been stayed
pursuant to section 667.61, subdivision (f). The court’s imposition of a concurrent life
term on Count 3 is therefore unauthorized and must be reversed.”
In support of his argument, defendant cites People v. Rodriguez (2012)
207 Cal.App.4th 204, 215 (Rodriguez), in which the appellate court held the trial court
erred by imposing a life term for kidnapping during a carjacking (§ 209.5) after the trial
court imposed a One Strike sentence for forcible rape that “effectively relied on this
offense” in violation of subdivision (f) of section 667.61. The Rodriguez court explained:
“For purposes of imposing a 25-year-to-life sentence on an offense under section 667.61,
subdivision (a), part of the applicable One Strike law, section 667.61, subdivision (e)(1)
provides that a special circumstance is established when ‘the defendant kidnapped the
victim of the present offense in violation of Section 207 [(simple kidnapping)], 209
[(kidnapping to commit robbery)], or 209.5 [(kidnapping during a carjacking)].’ In
connection with appellant’s sex crimes (counts 3-8, 11), the jury found that appellant had
‘kidnapped the victim of the present offense in violation of . . . section 207 or 209.5.’
Because this finding necessarily encompassed appellant’s conviction under count 1,
section 667.61, subdivision (f), part of the applicable One Strike[] law barred the
imposition of separate punishment on count 1, as section 209.5 neither imposes greater
punishment than the One Strike law nor provides for additional punishment.”
(Rodriguez, supra, 207 Cal.App.4th at pp. 215-216.)
The Attorney General argues Rodriguez, supra, 207 Cal.App.4th 204, was
wrongly decided, arguing that section 667.61, subdivision (f) does not affect sentencing
on any other counts except the count punished by application of the One Strike law and
only limits the imposition of additional punishment on the One Strike sentence itself.
We agree with the Rodriguez court’s statutory analysis. After finding
defendant guilty of forcible spousal rape, the jury found defendant had committed that
offense in the commission of first degree burglary. Because this finding necessarily

-- 20 of 28 --

21
encompassed defendant’s conviction under count 3 for assault with the intent to commit
rape in the commission of first degree burglary in violation of section 220,
subdivision (b), section 667.61, subdivision (f) bars the imposition of separate
punishment on count 3; section 220, subdivision (b) neither imposes greater punishment
than the One Strike law nor provides for additional punishment. The trial court therefore
erred by failing to stay execution of punishment on count 3. In light of our conclusion,
we do not need to decide whether execution of punishment on count 3 would otherwise
be appropriate pursuant to section 654.
IV.
SECTION 3051, SUBDIVISION (h) DOES NOT VIOLATE EQUAL PROTECTION.
Section 3051 provides that a person who was under 25 years of age when
an offense is committed is entitled to a youth offender parole hearing at a particular point
during his or her term. (Id., subd. (b)(1)-(3).) At such a hearing, “in reviewing a
prisoner’s suitability for parole . . . [the Board of Parole Hearings] shall give great weight
to the diminished culpability of juveniles as compared to adults, the hallmark features of
youth, and any subsequent growth and increased maturity of the prisoner in accordance
with relevant case law.” (§ 4801, subd. (c).)
Subdivision (h) of section 3051, however, provides that the benefit
provided under section 3051 does not apply to cases “in which sentencing occurs
pursuant to . . . Section 667.61,” and thus is not available to defendant who was
sentenced under the One Strike law.
Defendant contends that section 3051, subdivision (h)’s exclusion of those
sentenced under the One Strike law from the youthful offender parole hearing benefit
violates his constitutional rights to equal protection. For the reasons we explain,
defendant’s argument lacks merit.
“Both the state and federal Constitutions extend to persons the equal
protection of law.” (People v. Chatman (2018) 4 Cal.5th 277, 287, citing U.S. Const.,

-- 21 of 28 --

22
14th Amend.; Cal. Const., art. I, § 7, subd. (a).) “The concept of equal treatment under
the laws means that persons similarly situated regarding the legitimate purpose of the law
should receive like treatment.” (People v. Morales (2016) 63 Cal.4th 399, 408
(Morales).) “[E]qual protection of the law is denied only where there is no ‘rational
relationship between the disparity of treatment and some legitimate governmental
purpose.’ [Citation.] . . . This standard of rationality does not depend upon whether
lawmakers ever actually articulated the purpose they sought to achieve. Nor must the
underlying rationale be empirically substantiated. [Citation.] While the realities of the
subject matter cannot be completely ignored [citation], a court may engage in ‘“rational
speculation”’ as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the
record.’ [Citations.]” (People v. Turnage (2012) 55 Cal.4th 62, 74-75.) So long as there
is “‘“any reasonably conceivable state of facts that could provide a rational basis”’” for
the disparity, “[e]qual protection analysis does not entitle the judiciary to second-guess
the wisdom, fairness, or logic of the law.” (Id. at p. 74.)
“A meritorious equal protection claim requires a showing that (1) the state
has adopted a classification that treats two or more similarly situated groups in an
unequal manner, and (2) the classification does not bear a rational relationship to a
legitimate state purpose when, as in this case, the classification is not based on race,
gender, or some other criteria calling for heightened scrutiny. [Citations.] ‘Under the
equal protection clause, we do not inquire “whether persons are similarly situated for all
purposes, but ‘whether they are similarly situated for purposes of the law challenged.’”
[Citation.]’ [Citation.] And, under rational relationship scrutiny, the claim fails if there
are ‘“‘“plausible reasons”’”’ for the classification.” (In re O.C. (2019) 40 Cal.App.5th
1196, 1210-1211; see Morales, supra, 63 Cal.4th at p. 408; Johnson v. Department of
Justice (2015) 60 Cal.4th 871, 881 [“To mount a successful rational basis challenge, a
party must ‘“negat[e] every conceivable basis”’ that might support the disputed statutory

-- 22 of 28 --

23
disparity”].) “We review an equal protection claim de novo.” (People v. Laird (2018)
27 Cal.App.5th 458, 469.)
Defendant argues that section 3051 reaches almost all youthful offenders
who draw life terms or long determinate sentences, including first degree murderers, but
excludes One Strikers under subdivision (h). Even if we assume for purposes of this
opinion that section 3051, subdivision (h) creates a classification of similarly situated
groups, we conclude there is a rational basis for treating those classes differently, and that
the statute, therefore, does not violate equal protection.
Disagreement has arisen in the appellate courts regarding whether a rational
basis exists for treating One Strikers differently than other youthful offenders who have
long sentences. In People v. Edwards (2019) 34 Cal.App.5th 183, 197 (Edwards), the
appellate court held: “We see no rational relationship between the disparity of treatment
and a legitimate governmental purpose. Certainly, the crimes punished by the One Strike
law are heinous, and the crimes in this case are among the most awful in our judicial
system short of murder. But United States Supreme Court and California Supreme Court
precedent has already determined that these defendants ‘“are categorically less deserving
of the most serious forms of punishment than are murderers.”’ [Citation.] Because the
Legislature made youthful-offender parole hearings available even for first degree
murderers (except those who committed murder as an adult and received an LWOP
sentence), there is no rational basis for excluding One Strike defendants from such
hearings.”
In People v. Williams (2020) 47 Cal.App.5th 475, 492, review granted
July 22, 2020, S262229 (Williams), the appellate court disagreed with the Edwards
court’s conclusion there is “no ‘“conceivable basis”’ supporting the disputed statutory
disparity for such offenders as compared to murderers.” The Williams court, concluding
that section 3051, subdivision (h) had a rational basis, stated: “[W]e believe that the
threat of recidivism by violent sexual offenders—as demonstrated by the Legislature’s

-- 23 of 28 --

24
enactment of several comprehensive statutory schemes to curb such recidivism among
such offenders—provides a rational basis for the Legislature’s decision to exclude one
strikers from the reach of section 3051. (See Johnson v. Department of Justice, supra,
60 Cal.4th at p. 881 [noting a court of review may engage in ‘“‘“rational speculation”’”’
as to the justifications for the Legislature’s decision, even if that assumption has no
foundation in the record]; see also Turnage, supra, 55 Cal.4th at pp. 74-75 [noting the
standard of rationality neither ‘depend[s] upon whether lawmakers ever actually
articulated the purpose they sought to achieve,’ ‘[n]or must the underlying rationale be
empirically substantiated’]; People v. Luna (2012) 209 Cal.App.4th 460, 471 [observing
that § 667.61 ‘“was enacted to ensure serious and dangerous sex offenders would receive
lengthy prison sentences upon their first conviction”’]; § 667.61, subds. (a), (c) & (d)
[requiring a punishment of 25 years to life to any person who engages in one or more
‘circumstances’ during the commission of various qualifying felony sex crimes].) [¶]
Given the deferential standard we apply in determining rationality for equal protection
purposes [citation], and given our view that the risk of recidivism provides a rational
basis for the Legislature to treat violent felony sex offenders sentenced under the one
strike law differently than murderers or others who commit serious crimes, we reject
defendant’s equal protection challenge to subdivision (h) of section 3051.” (Id. at p. 493;
see People v. Acosta (2021) 60 Cal.App.5th 769, 781 [finding a rational basis for section
3051, subdivision (h)’s exclusion of young adult LWOP offenders].)3
3 Applying the reasoning and analysis of Williams, supra, 47 Cal.App.5th 475, the
appellate court in People v. Moseley (2021) 59 Cal.App.5th 1160, 1162, 1170 also found
section 3051, subdivision (h)’s exclusion of defendants sentenced under the One Strike
law to have a rational basis: “Though the Edwards court found that section 3051’s
exclusion of one strike offenders does not have a rational basis, we find otherwise when
comparing youthful sex offenders to youthful murderers. [Citation.] Indeed, there are
significant public safety concerns that support the exclusion of these sex offenders from
youth offender parole consideration, including recidivism. The United States Supreme
Court explained, ‘[w]hen convicted sex offenders reenter society, they are much more
likely than any other type of offender to be rearrested for a new rape or sexual assault.’

-- 24 of 28 --

25
We agree with the reasoning of Williams and find that a rational basis exists
for section 3051, subdivision (h)’s exclusion of youthful offenders sentenced under the
One Strike law from the benefits afforded other youthful offenders under section 3051.
V.
THE TRIAL COURT’S IMPOSITION OF THE RESTITUTION FINE AND ASSESSMENT FEES.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
defendant contends the trial court erred by ordering him to pay a restitution fine, criminal
conviction assessment fees, and court operations assessment fees after finding defendant
did not have the ability to pay the $300 fine under section 290.3. He argues the
assessments must be stricken because he lacks the ability pay them and the restitution
fine must be stayed until the prosecution proves he has the ability to pay the fine.
Defendant’s argument is without merit.
Even if defendant had not forfeited the issue, Dueñas is distinguishable. In
Dueñas, the defendant was indigent, homeless and the mother of two young children.
(Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) She also suffered from cerebral
palsy. (Id. at p. 1160.) When she was a teenager, her driver’s license was suspended
after she failed to pay $1,088 in assessments imposed in connection with three juvenile
citations she had received. (Id. at p. 1161.) The defendant was unable to have her
driver’s license reinstated because she could not afford to pay the assessments. (Ibid.)
(McKune v. Lile (2002) 536 U.S. 24, 33.) Our Legislature has long expressed special
concern for recidivism among sex offenders. For example, certain sex offenders are
required to register for life after release from custody (§ 290 et seq.), and the ‘One Strike’
law was enacted precisely to ensure that violent sex offenders ‘be separated from society
to prevent reoffense.’ [Citation.] For purposes of rational basis review, it is immaterial
whether a conceivable basis for the classification has ‘a foundation in the record.’
[Citation.] [¶] Given the deferential standard we apply in determining rationality for
equal protection purposes, and given our view that the risk of recidivism provides a
rational basis for the Legislature to treat felony sex offenders sentenced under the One
Strike law differently than murderers, we reject the argument that subdivision (h) of
section 3051 violates equal protection and is unconstitutional.”

-- 25 of 28 --

26
Over the next several years, the defendant was convicted of a series of misdemeanor
convictions related to her driving with a suspended license and she was ordered to pay
more court fines and fees. (Id. at p. 1161.) Although the defendant often served time in
jail in lieu of paying her fines that she could not afford, she was still ordered to pay the
related mandatory court fees. (Ibid.) Consequently, the defendant found herself
enmeshed in a “cycle of repeated violations and escalating debt,” that originated from her
initial inability to pay fines assessed when she was a juvenile. (Id. at p. 1164 & fn. 1.)
The appellate court concluded that imposing fees and fines on the defendant
was unconstitutional and violated due process, holding: “Because the only reason
Dueñas cannot pay the fine and fees is her poverty, using the criminal process to collect a
fine she cannot pay is unconstitutional.” (Id. at p. 1160.) The “cascading consequences
of imposing fines and assessments” (Dueñas, supra, 30 Cal.App.5th at p. 1163) that
concerned the Dueñas court included not only the possibility of additional incarceration
in lieu of payment, but also serious civil impairments. (Id. at p. 1168).
The compelling concerns addressed in Dueñas, supra, 30 Cal.App.5th 1157
are inapplicable to this case. Defendant does not contend he is at risk of suffering any of
the civil or criminal consequences that concerned the Dueñas court by his potential
inability to pay the imposed fine and fees, he does not claim he will suffer significant
consequences for nonpayment, and nothing in the record suggests he will be unable to
pay off the fine and fees by working in prison.
Unlike the defendant in Dueñas, defendant was sentenced to a four-year
determinate sentence followed by a 25-years-to-life sentence and was awarded 1,531
days of presentence credit. He will be unable to earn conduct credit above the rate of
15 percent under section 2933.1 given his conviction for forcible spousal rape committed
in the commission of a burglary. The total amount of his financial obligation is $580
($300 restitution fine, plus $120 [$30 criminal conviction assessment per convicted
count], plus $160 [$40 court operations assessment per convicted count]).

-- 26 of 28 --

27
Defendant was 28 years old at the time he was sentenced and nothing in the
record suggests he is incapable of performing work. Assuming defendant earns the
lowest prison wage of $12 a month for the duration of his sentence, it will take him
approximately 50 months (about four years) to pay off that amount. We therefore
conclude that defendant’s ability to pay the total amount imposed with prison wages
“forecloses a meritorious inability to pay argument.” (People v. Oliver (2020)
54 Cal.App.5th 1084, 1101 [“Defendant was sentenced to state prison for a lengthy
determinate term of 22 years eight months. Defendant will likely have the opportunity
during his lengthy prison sentence to pay his $240 court operations fee and his $180
criminal conviction assessment through prison wages and gifts”]; People v. Jones, supra,
36 Cal.App.5th at p. 1035; see People v. Johnson (2019) 35 Cal.App.5th 134, 140
[concluding the defendant had “ample time to pay it from a readily available source of
income while incarcerated”].)
Defendant’s challenge under Dueñas, supra, 30 Cal.App.5th 1157 is
without merit.
DISPOSITION
The judgment is modified to stay execution of sentence on count 3. As
modified, the judgment is affirmed. The trial court is directed to prepare an amended

-- 27 of 28 --

28
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.

-- 28 of 28 --