People v. Baker

In October 2013, Mary D. moved into her parents' single-family home in Lemon Grove with her four children, including six-year-old A.D. Space was tight downstairs, so A.D. slept on a couch upstairs, where Mary's sister Judy lived. Mary's 50-year-old brother, defendant Baker, visited in December from New Hampshire and met the children for the first time. The visit was positive.

Baker returned a few months later in March 2014 to take care of Judy's dogs while she was on vacation. Baker slept in Judy's bedroom, and A.D. continued to sleep on the couch. On the evening of March 8, Mary went to the airport to pick up her son, leaving A.D. upstairs with Baker. The next morning, A.D. approached Mary in the kitchen and told her Baker had licked her "down there," pointing to her crotch. Mary took A.D. to a bedroom and asked her to tell her what happened. A.D. told her that Baker had brought her into bed with him, rubbed her stomach, pulled down her underwear, licked her, and asked her if it felt good. She said "No, it's gross." Baker then kissed A.D. on the mouth, and A.D. pulled the blanket over her face to make him stop. Baker stopped.

Mary called the sheriff's department and made a report. She then took A.D. to the hospital. Hospital staff collected evidentiary swabs and clothing from A.D. and put her through a full Sexual Assault Response Team (SART) exam that indicated "no physical findings." Baker met with detectives and provided an oral swab.

A.D. underwent a forensic interview with social worker Sheri Rouse on March 10. She said she was sleeping by her "Uncle Jeff" in bed. He first

impose this sentence. I cannot be called upon to evaluate the conduct of the defendant, the history of the defendant once I conclude it is a prison case. It is beyond comprehension for me, and probably for every one of these guys on the wall who did this job before me over the last 100 years, to ever contemplate a situation wherein we are forced to impose a sentence that is absolutely disproportionate to the crime that was committed in this case. That being said, the court will say for the record that the only reason this sentence is being imposed is because it is mandated by this particular code section. I

A. May the Issue Be Raised?

Before turning to Baker's constitutional challenge, we must decide whether the issue is preserved on appeal. Although his trial counsel did not object to his sentence as cruel and/or unusual, Baker argues an objection was unnecessary given the court's ruling. In the alternative, he claims he received ineffective assistance when his counsel failed to object.

As a general rule, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." ( People v. Scott (1994) 9 Cal.4th 331 , 356, 36 Cal.Rptr.2d 627 , 885 P.2d 1040 .) A claim that a sentence is cruel or unusual requires a "fact specific" inquiry and is forfeited if not raised below. ( People v. DeJesus (1995) 38 Cal.App.4th 1 , 27, 44 Cal.Rptr.2d 796 ; People v. Norman (2003) 109 Cal.App.4th 221 , 229, 134 Cal.Rptr.2d 652 ; People v. Speight (2014) 227 Cal.App.4th 1229 , 1248, 174 Cal.Rptr.3d 454 .) Although the trial court identified a potential Eighth Amendment issue, the onus was on Baker's counsel to object on that basis and on state constitutional grounds. Baker has thus forfeited his claim, but we address the merits "to show counsel was not constitutionally ineffective by failing to make a futile or meritless objection." ( People v. Reyes (2016) 246 Cal.App.4th 62 , 86, 200 Cal.Rptr.3d 584 ( Reyes ).)

B. Scope of the Trial Court's Authority and the Necessity for Remand

Baker argues that the trial court misunderstood the scope of its sentencing authority not to impose a sentence that amounted to cruel and/or unusual punishment. He seeks remand for the trial court to properly exercise its authority and consider his constitutional claims. In response, the People appropriately concede that the trial court did not appreciate the scope of its sentencing authority. (See People v. Felix (2003) 108 Cal.App.4th 994 , 999, 134 Cal.Rptr.2d 351 [trial court has authority to intervene if mandatory punishment is unconstitutional];

standard' just as well as the trial court could. Thus, even if the trial court did err in the manner defendant asserts, remand is unnecessary, for we can determine ourselves, on de novo review, whether defendant's sentence was cruel or unusual."

( Ibid . ) The same reasoning applies here, even though Baker did not make the argument before the trial court.

Baker relies on People v. Leigh (1985) 168 Cal.App.3d 217 , 214 Cal.Rptr. 61 ( Leigh ) to argue remand is appropriate. In Leigh , the trial court erroneously believed it lacked authority to reduce the offense from first degree to second degree murder to avoid a cruel or unusual punishment. ( Id. at p. 223, 214 Cal.Rptr. 61 .) The Court of Appeal remanded the case for resentencing, explaining the trial court was not precluded from making the determination. ( Ibid. ) It further noted the trial court was "uniquely suited" "to analyze the panoply of factors that must be considered in determining the offender's 'state of mind,' 'personal characteristics,' and the degree of danger the offender poses to society." ( Ibid . ) Leigh stands for the proposition that trial courts may evaluate constitutionality at sentencing, not that trial courts alone may do so. (See People v. Williams (1986) 180 Cal.App.3d 922 , 926, 225 Cal.Rptr. 842 [ Leigh merely holds that the constitutionality analysis is not within the sole province of the appellate court, not that it is properly the function of the trier of fact.].)

Baker also argues that remand would allow the trial court to "perform its vested role of determining the facts in the first instance" and notes that appellate courts defer to factual findings that are supported by substantial evidence. But any factual findings the trial court could make in Baker's favor-that it was a one-time occurrence by a first-time sex offender with an insignificant criminal history-are findings that we can (and do) assume in

Baker contends his indeterminate sentence under section 288.7, subdivision (b) constitutes cruel and/or unusual punishment under the federal and state constitutions. Although he attempts a facial constitutional challenge, that challenge fails under In re Rodriguez (1975) 14 Cal.3d 639 , 122 Cal.Rptr. 552 , 537 P.2d 384 ( Rodriguez ). Rodriguez considered the constitutionality of an indeterminate one-year-to-life sentence for a single lewd act on a six-year-old child. ( Id. at p. 643 & fn. 5, 122 Cal.Rptr. 552 , 537 P.2d 384 .) The court rejected the facial challenge, noting that section 288"encompasses offenses reflecting a wide range of culpability, including situations in which the life maximum may be a constitutionally permissible punishment." ( Id. at p. 648, 122 Cal.Rptr. 552 , 537 P.2d 384 .) The same is true of section 288.7, subdivision (b). Baker repeatedly notes his minimal criminal history and low risk for sex offense recidivism in challenging his sentence. This is an as applied challenge-i.e., that the mandatory sentence is cruel and unusual as applied to him. ( Id. at p. 656, 122 Cal.Rptr. 552 , 537 P.2d 384 .)

Although the facts of this case may be less serious than those in Christensen , Meneses, and Reyes , they are significantly more aggravated than those in Rodriguez . To the extent there is even slight disproportionality based on the nature of the offender, the second and third techniques under Lynch convince us that this is not that rare case where a "statute prescribes a penalty 'out of all proportion to the offense.' " ( Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217 , 503 P.2d 921 )

b. Comparison of punishment for other crimes in California

The second prong requires us to compare Baker's sentence to "punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious." ( Lynch, supra, 8 Cal.3d at p. 426, 105 Cal.Rptr. 217 , 503 P.2d 921 .) In so doing, we must remember that the Legislature (or sometimes the electorate) bears the responsibility for fixing the penalty of crimes. ( Id. at pp. 423-424, 105 Cal.Rptr. 217 , 503 P.2d 921 .) "Punishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime. Leniency as to one charge does not transform a reasonable punishment into one that is cruel or unusual." ( People v. Bestelmeyer (1985) 166 Cal.App.3d 520 , 530-531, 212 Cal.Rptr. 605 .)

Baker compares his sentence to those imposed for several "more serious" crimes such as murder, mayhem, and torture. More relevant for our purposes, he compares it to lesser sentences for sex crimes against children. Forcible sex trafficking of a minor (§ 236.1, subd. (c)(2) ) and lewd acts with two sex offense priors ( §§ 288, 667.51 ) carry terms of 15 years to life. The following crimes are not subject to indeterminate sentencing: forcible rape of a child under 14 (§§ 261, subd. (a)(2), 264, subd. (c)(1) ); rape of a child under 14 in concert with another person (§ 264.1, subd. (b)(1) ); pimping or pandering of

"Existing law includes the 'one-strike' sex crime sentencing law that provides sentences of 15 or 25 years to life in certain sex crimes if specified circumstances in aggravation are found to be true. ( Pen. Code 667.61.)

"[¶] ... [¶]

As the People concede, the trial court had the power to decide whether the mandatory prison term in this case was an unconstitutional sentence. But even if the trial court misunderstood the scope of its authority, a remand for resentencing is unnecessary because the indeterminate 15-years-to-life sentence was not cruel and/or unusual as a matter of law. ( U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) For similar reasons Baker did not receive ineffective assistance of counsel. Accordingly, we affirm.

The probation report used the STATIC-99R risk assessment to determine his risk for sexual offense recidivism. His score put him in the "Low Risk Category" with a 1.9 percent chance of recidivism within five years of release from custody. Even so, the report recommended sentencing Baker to a term of 15 years to life on the section 288.7, subdivision (b) charge due to the "egregious" nature of the crime and his lack of cooperation in the presentence interview. It recommended the middle term of six years for the two section 288, subdivision (a) counts.

Given his conviction under section 288.7, Baker was statutorily ineligible for probation. (See § 1203.065, subd. (a).) Nevertheless, the parties and the court mistakenly believed Baker could either receive probation or be sentenced for count 1 to the mandatory term under section 288.7, subdivision (b) of 15 years to life. Thus, at sentencing Baker's counsel urged the court to grant probation based on Baker's low risk for recidivism. With respect to his lack of cooperation, his counsel explained that Baker felt his prior conversations with law enforcement and family had been spun in a negative way. Although acknowledging that A.D. did not appear to be "scarred for life," the prosecutor faulted Baker for not admitting the crime. She urged the mandatory prison term, arguing "this type of case and this particular incident is some of the worst type of conduct there is on a child." Defense counsel challenged whether this case was "one of the worst," and the trial court remarked, "I'm not buying into that either."

The trial court denied probation and imposed the mandatory 15-years-to-life term on count 1. Concurrent six year terms were imposed on counts 2 and 3. In doing so, however, the court expressed great discomfort with the sentence and urged Baker to appeal on Eighth Amendment grounds:

"I am going to impose the 15-to-life commit. Before I do, I'm going to put a few things on the record. This, to me, is a glaring example of what happens when you take discretion away from a sentencing judge. I have no option but to

certainly would invite Mr. Baker to appeal this decision, to assert at that point any Eighth Amendment rights he feels that he has. And hopefully someone in the position to review the case, based upon that, may come to a different conclusion. But for me to take that step at this particular level would be, in essence, to disregard the law.

"I have concluded, and I did at the end of this case, that this was a prison case. It was a prison case from the beginning. Was it a life case? No. Not now, not a thousand lifetimes from now. I've been doing this job a long time. I have seen life- top cases. I have sent people to prison for life. I have sentenced people to death. And this particular conduct, in this particular crime, absolutely, without question, does not justify the imposition of this sentence.

"I've reviewed the criteria set forth in [ California Rules of Court, rule 4.414 ], find the defendant is not a suitable candidate for probation, the ends of justice would not be met. It will be the order of the court that the defendant be committed to the Department of Corrections for the term of 15 years to life as mandated by this code section."

DISCUSSION

On appeal, Baker challenges his indeterminate sentence of 15 years to life for violating section 288.7, subdivision (b). He claims the punishment is cruel and/or unusual in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Baker argues the trial court failed to understand its sentencing authority to avoid imposition of an unconstitutional sentence. He asks us to remand the case for resentencing or, in the alternative, decide as a matter of law that his sentence for count 1 violates the federal or state constitutions. Although his trial counsel did not object to the sentence on these grounds, he claims no objection was necessary or that he suffered ineffective assistance of counsel.

The record before us is, to be sure, unusual. A thoughtful trial judge, moved by what he perceived to be significant unfairness given the particular facts of the case, expressed his conclusions to that effect in no uncertain terms. But the court seems to have misunderstood the scope of its role. Where a trial court concludes that a mandatory minimum sentence is grossly disproportionate to the circumstances of the crime, it has the constitutional authority-indeed, the constitutional duty-not to impose an unconstitutional sentence. The responsibility to declare constitutional limitations on the power of coordinate branches of government belongs to the judicial branch in its entirety and not merely to appellate courts. To enforce the constitution is not to "disregard the law."

We agree that under the circumstances of this case, a remand is unnecessary. In People v. Hamlin (2009) 170 Cal.App.4th 1412 , 89 Cal.Rptr.3d 402 ( Hamlin ), a defendant claimed his life sentence for torture was cruel or unusual. ( Id. at p. 1474, 89 Cal.Rptr.3d 402 .) He sought remand for a new sentencing hearing, arguing the trial court had erred in rejecting the claim. The Court of Appeal declined to remand, explaining:

"Because the question of whether defendant's sentence amounted to cruel or unusual punishment is a question of law ( [citation] ), we can 'apply[ ] the correct

By contrast, Baker challenges the constitutionality of a statutorily mandated sentence, a question of law that we review de novo. "Like the trial court, we are authorized to consider proportionality [of punishment] based on the facts." ( People v. Weddle (1991) 1 Cal.App.4th 1190 , 1197, 2 Cal.Rptr.2d 714 .) Remand is unnecessary because "we can determine ourselves, on de novo review, whether defendant's sentence was cruel or unusual." ( Hamlin, supra, 170 Cal.App.4th at p. 1474, 89 Cal.Rptr.3d 402 .)

C. Baker's Life Sentence Is Not Cruel and/or Unusual

" Section 288.7 was enacted as part of the Sex Offender Punishment, Control, and Containment Act of 2006 (the Act). [Citation.] ... The primary purpose of the Act was to prevent 'future victimization' of the community by sex offenders. [Citation.] Among the provisions of the Act was the creation of several new criminal offenses involving child victims"-including a

1. California Constitution

A punishment is cruel or unusual in violation of the California Constitution "if, although not cruel or unusual in its method, 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 , 425, 105 Cal.Rptr. 217 , 503 P.2d 921 ( Lynch ).) Because it is the Legislature's function to define crimes and prescribe punishments, the judiciary should not interfere "unless a statute prescribes a penalty 'out of all proportion to the offense.' " ( Id . at pp. 414-415, 424, 105 Cal.Rptr. 217 , 503 P.2d 921 .) In reviewing an indeterminate sentence, "it is the maximum term prescribed by the statute-not a lesser period thereafter affixed as an 'incentive to well-doing'-which must survive constitutional scrutiny." ( Id . at pp. 416-417, 105 Cal.Rptr. 217 , 503 P.2d 921 .) Thus, in evaluating Baker's sentence of 15 years to life, we must consider whether a life sentence withstands constitutional scrutiny, notwithstanding his parole eligibility in 15 years.

Lynch describes three "techniques" to determine whether a sentence is so disproportionate to the crime as to constitute cruel or unusual punishment. ( Lynch, supra, 8 Cal.3d at p. 425, 105 Cal.Rptr. 217 , 503 P.2d 921 .) We first consider "the nature of the offense and/or offender, with particular regard to the degree

Nevertheless, "[t]he 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 in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment." ( People v. Wingo (1975) 14 Cal.3d 169 , 174, 121 Cal.Rptr. 97 , 534 P.2d 1001 ( Wingo ).) Reducing a sentence as otherwise cruel or unusual "is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels." ( Mora, supra, 39 Cal.App.4th at p. 616, 46 Cal.Rptr.2d 99 .) "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." ( People v. Martinez (1999) 76 Cal.App.4th 489 , 494, 90 Cal.Rptr.2d 517 ( Martinez ).) Although Baker's sentence is severe, this is not such a rare case.

a. Nature of the offense and offender

Factors to consider in evaluating the nature of the offense include the seriousness of the offense and the presence of violence, victims, or aggravating circumstances. ( Lynch, supra, 8 Cal.3d at pp. 425-426, 105 Cal.Rptr. 217 , 503 P.2d 921 ; Rodriguez, supra, 14 Cal.3d at p. 654, 122 Cal.Rptr. 552 , 537 P.2d 384 .) We consider not only the offense in the abstract but also the facts of the crime in question-"i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." ( Dillon, supra, 34 Cal.3d at p. 479, 194 Cal.Rptr. 390 , 668 P.2d 697 ; see Reyes, supra, 246 Cal.App.4th at p. 87, 200 Cal.Rptr.3d 584 .) We also evaluate whether the punishment fits the criminal . ( Lynch, supra, at p. 437, 105 Cal.Rptr. 217 , 503 P.2d 921 ; Dillon, supra, at p. 479, 194 Cal.Rptr. 390 , 668 P.2d 697 .) We examine the defendant "in the concrete rather than the abstract ... focus[ing] on the particular person before the court, [to ask] whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." ( Dillon, supra, at p. 479, 194 Cal.Rptr. 390 , 668 P.2d 697 .)

Baker was convicted of oral copulation of a six-year-old child. "There exists

Although the SART exam showed A.D. was not physically harmed, Baker "did not have to hurt her in order to do permanent psychological damage." ( Reyes, supra, 246 Cal.App.4th at p. 85, 200 Cal.Rptr.3d 584 .) Courts have recognized that lewd conduct "may have lifelong consequences to the well-being of the child." ( Christensen, supra, 229 Cal.App.4th at p. 806, 177 Cal.Rptr.3d 712 .) A.D. told the social worker she felt "disgusting" and kept thinking about what happened, indicating at least some level of psychological harm.

As for aggravating circumstances, A.D. was particularly vulnerable given her age, and the defendant abused a position of trust to commit the offense. ( Cal. Rules of Court, rule 4.421(a)(3) & (11) ; People v. Quintanilla (2009) 170 Cal.App.4th 406 , 413, 87 Cal.Rptr.3d 889 [victim's vulnerability and defendant's abuse of trust were aggravating factors for the offense of forcible lewd acts on a child under 14].) Baker's conduct was egregious, and he does not show it was materially different from other acts of oral copulation of a child under the age of 10 for which the Legislature has imposed a 15-years-to-life sentence.

Critically, Baker perpetrated not one but three sexual acts against A.D. He touched her vagina, orally copulated her, and then kissed her mouth. Although the three acts took place within a short period of time, Baker did not stop the molestation immediately and proceeded to kiss her on the mouth after she said the oral copulation felt "gross." A.D. had to pull a blanket over her face to make him stop. Unlike the youthful 17-year-old defendant in Dillon , Baker was a mature adult. (Cf. Dillon, supra, 34 Cal.3d at p. 488, 194 Cal.Rptr. 390 , 668 P.2d 697 ; Reyes, supra, 246 Cal.App.4th at p. 88, 200 Cal.Rptr.3d 584 [distinguishing Dillon on this basis as to 35-year-old convicted of rape and oral copulation of a minor].) Here, as in Reyes , Baker "was in complete control of the situation, his actions were unprovoked, and he instigated multiple [ ] sex offenses against [A.D.]." ( Reyes, supra, at p. 88, 200 Cal.Rptr.3d 584 .)

Baker had an "insignificant criminal record" and no prior history of sex crimes. Although these factors are favorable to him, they do not outweigh the other factors. (See People v. Szadziewicz (2008) 161 Cal.App.4th 823 , 845, 74 Cal.Rptr.3d 416 [lack of prior record not determinative when "seriousness of the crime and the circumstances surrounding its commission substantially outweigh these factors"].)

The People respond by placing section 288.7, subdivision (b) along a spectrum. They point to a graduated scheme "whereby punishment increases as the victim's age decreases and the seriousness of sexual acts increases, with the harshest punishment meted out to adults who orally copulate or penetrate a child aged 10 or younger." The point is well taken. Oral copulation of a child under 14 and over 10 years younger than the defendant faces a three-, six-, or eight-year term. (§ 288a, subd. (c)(1).) That range decreases to 16 months, two, or three years if the child is under 16 and the defendant is over 21. (§ 288a, subd. (b)(2).) Section 288.7, subdivision (b) builds on section 288a's graduated scheme, mandating 15 years to life for oral copulation of a child 10 years of age or younger. Together, sections 288a and 288.7 reflect the Legislature's intent to increase the severity of punishment for oral copulation of younger victims.

But that analysis alone does not suffice. We find it relevant to consider other sections of the Penal Code that Baker omits from his discussion. Baker could have been convicted under section 269 for the same conduct and received the same 15-years-to-life sentence for aggravated sexual assault. Pursuant to section 269, any person who commits forcible oral copulation or sexual penetration of a child under the age of 14 and seven or more years younger than the defendant "shall be punished by imprisonment in the state prison for 15 years to life." (§ 269, subds. (a)(4), (b).) The amount

These provisions suggest a certain logic to the mandatory 15-years-to-life sentence under section 288.7, subdivision (b). The sentence continues the graded scale in section 288a, increasing the punishment for sex offenses against even younger children. Baker could have received the same punishment had he been charged and convicted under section 269 for the same conduct. If the jury found that he had committed a lewd act or oral copulation against two victims (or during the course of a burglary, etc.), he could face 25 years to life under section 667.61.

We again bear in mind that "[t]he power to define crimes and prescribe punishments is a legislative function." ( People v. Young (1992) 11 Cal.App.4th 1299 , 1308, 15 Cal.Rptr.2d 30 .) Our role is a limited one, and we proceed with great deference to the Legislature. ( Martinez, supra, 76 Cal.App.4th at p. 494, 90 Cal.Rptr.2d 517 .) "Furthermore, great deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." ( In re Wells (1975) 46 Cal.App.3d 592 , 599, 121 Cal.Rptr. 23 .)

In passing the Sex Offender Punishment, Control, and Containment Act of 2006, the Legislature sought to make it easier to sentence a defendant to a life term for particularly heinous sexual contact with a young child. (Sen. Com. on Public Safety, com. on Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended Mar. 7, 2006.) Although a life sentence was possible under the One Strike law if certain factors were present, section 288.7 sought to broaden that net:

"This bill adds two new crimes to the crimes subject to one-strike sentencing: oral copulation involving a child under the age of 10 and sexual penetration of a child under the age of 10...."

(Sen. Com. on Public Safety, com. on Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended Mar. 7, 2006.)

A comparison of the mandatory 15-years-to-life sentence under section 288.7, subdivision (b) to the punishments for similar and more serious sex offenses in California does not suggest this is that "rarest of cases" in which "the length of a sentence mandated by the Legislature is unconstitutionally excessive." ( Martinez, supra, 76 Cal.App.4th at p. 494, 90 Cal.Rptr.2d 517 .)

c. Comparison of punishment for analogous crimes in other states

In this step, we compare the sentence "with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." ( Lynch, supra, 8 Cal.3d at p. 427, 105 Cal.Rptr. 217 , 503 P.2d 921 .) "That California's punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual." ( People v. Martinez, supra, 71 Cal.App.4th at p. 1516, 84 Cal.Rptr.2d 638 .) The state constitution "does not require California to march in lockstep with other states in fashioning a penal code" or "require 'conforming our Penal Code to the "majority rule" or the least common denominator of penalties nationwide.' " ( Ibid. , citing Wingo, supra, 14 Cal.3d at p. 179, 121 Cal.Rptr. 97 , 534 P.2d 1001 .) Only "when there appears a significant disproportion between a challenged penalty and that imposed for the same crime by our sister states" should the penalty be deemed suspect. ( Wingo, supra, at p. 179, 121 Cal.Rptr. 97 , 534 P.2d 1001 .)

Baker cites the punishment for oral copulation in just two states, New York and Oregon. He does not indicate whether those states have "an identical or similar constitutional provision" against cruel or unusual punishment ( Lynch, supra, 8 Cal.3d at p. 427, 105 Cal.Rptr. 217 , 503 P.2d 921 ), but at minimum, the Eighth Amendment applies. ( Graham v. Florida (2010) 560 U.S. 48 , 52, 130 S.Ct. 2011 , 176 L.Ed.2d 825 .) Baker points out that in New York, oral sexual conduct with a child under 11 is punishable by five to 25 years in prison. ( N.Y. Penal Law, §§ 70.02, subds. (1)(a) & (3)(a), 130.50, subd. (3).) He claims that in Oregon, oral intercourse with a child under 12 carries a 20-year maximum sentence. ( Or. Rev. Stat. Ann. §§ 161.605 , subd. (1), 163.405, subds. (1)(b) & (2).)

Baker is mistaken as to Oregon. Oral intercourse with a child under 12 constitutes sodomy in the first degree in Oregon and is punishable as a Class A felony. ( Or. Rev. Stat. Ann. § 163.405 , subds. (1)(b) & (2).) Class A felonies are generally subject to a 20-year maximum term. (

California and Oregon are not outliers. We have found ten similar statutes in other states. (See Fla. Stat. Ann. §§ 800.04 , subd. (5)(b) & 775.082, subd. (3)(a)4 [life or

2. Federal Constitution

The Eighth Amendment of the United States Constitution states in full: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." "Although it has always been uniformly accepted that the federal cruel and unusual punishment clause prohibits the infliction of certain

We begin an Eighth Amendment analysis "by comparing the gravity of the offense and the severity of the sentence." ( Graham, supra, 560 U.S. at p. 60, 130 S.Ct. 2011 .) "This analysis can consider a particular offender's mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history." ( Id. at p. 88, 130 S.Ct. 2011 (conc. opn. of Roberts, C.J.).) Only in the rare case in which this threshold comparison leads to an " 'inference of gross disproportionality' " do we proceed to "compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions." ( Id. at p. 60, 130 S.Ct. 2011 .)

For the reasons discussed above under the first prong of Lynch , the threshold test does not lead to an inference of gross disproportionality. (Cf. Graham, supra, 560 U.S. at pp. 92-93, 130 S.Ct. 2011

The judgment is affirmed.

WE CONCUR:

McCONNELL, P.J.

IRION, J.