Filed 1/25/23 P. v. Ramirez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E077359
v. (Super.Ct.No. RIF1605001)
PEDRO PAREDES RAMIREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed in part; reversed in part with directions.
Stephen M. Lathrop, by appointment of the Court of Appeal, for Defendant and
Appellant.
1 Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,
Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Defendant, Pedro Paredes Ramirez, was convicted of nine offenses arising out of
six different incidents involving different victims. These offenses included three counts
of committing a lewd act on a child under the age of 14 years (Pen. Code,1 § 288, subd.
(a); counts 2, 3, 7); one count of committing a lewd act on a child under the age of 14
years by means of force, violence, duress, or menace (§ 288, subd. (b)(1); count 9); and
one count of first degree burglary of an inhabited dwelling house (§§ 459, 462, subd. (a);
count 4). The jury also found true special circumstance allegations that counts 2, 3, 7,
and 9 were committed during the commission of a burglary (§ 667.61, subd. (e)(2)), as
well as during the commission of a first degree burglary with the intent to commit a
specified sex offense (§ 667.61, subds. (c), (d)(4)). Defendant’s sentence included a term
of life in prison without the possibility of parole pursuant to section 667.61, subdivision
(j)(1), on count 9; three terms of 25 years to life pursuant to section 667.61, subdivision
(j)(2), on counts 2, 3, and 7; and an upper term of 6 years on count 4.
On appeal, defendant contends that (1) there was insufficient evidence of his
identity to support his convictions on counts 2 and 3; (2) the information was not
sufficiently specific to afford him adequate notice that he could be sentenced pursuant to
1 Undesignated statutory references are to the Penal Code.
2 the enhanced penalties set forth in section 667.61, subdivision (j); and (3) the matter must
be remanded for resentencing as a result of amendments to section 1170, subdivision (b),
because the trial court imposed an upper term sentence on count 4 without submitting the
truth of any aggravating factors to a jury.
We conclude that sufficient evidence supports defendant’s convictions on counts 2
and 3 and also conclude that the information was sufficiently specific to afford adequate
notice that defendant could be sentenced pursuant to section 667.61, subdivision (j).
However, we agree with defendant that the matter must be remanded for resentencing in
light of the amendments to section 1170, subdivision (b). While defendant has also
raised additional issues related to his sentence, we need not address these issues on
appeal in light of our conclusion that defendant is entitled to a full resentencing upon
remand.
II. FACTS AND PROCEDURAL HISTORY
A. Charges
On May 20, 2021, the People filed a second amended information alleging
defendant had engaged in numerous offenses arising out of multiple incidents from
August 2015 through October 2016. Specifically, defendant was charged with (1)
aggravated trespassing (§ 602.5, subd. (b); count 1); (2) committing lewd acts upon a
child under the age of 14 years (§ 288, subd. (a); counts 2, 3); (3) first degree burglary of
an inhabited dwelling (§§ 459, 462, subd. (a); count 4); (4) assault during the course of a
first degree burglary with the intent to commit rape, sodomy, or oral copulation (§ 220,
subd. (b); count 5); (5) disorderly conduct (§ 647, subd. (i); count 6); (6) committing a
3 lewd act upon a child under the age of 14 years (§ 288, subd. (a); count 7); (7) assault
during the course of a first degree burglary with the intent to commit rape, sodomy, or
oral copulation (§ 220, subd. (b); count 8); and (8) committing a lewd act on a child
under the age of 14 years by means of force, violence, duress, or menace (§ 288, subd.
(b)(1); count 9).
Additionally, four counts (counts 2, 3, 7, & 9) were accompanied by special
circumstance allegations. The special allegations attached to each count were identical,
stating in pertinent part: “It is further alleged that during the commission of the above
offense, the defendant . . . entered an inhabited dwelling house and the inhabited portion
of a building with the intent to commit an offense specified in Penal Code section 667.61,
subdivision (c), within the meaning of Penal Code section 667.61, [subdivision (d)(4)].
[¶] . . . [¶] It is further alleged that the above offense was committed by the defendant,
during the commission of a burglary, within the meaning of Penal Code section 667.61,
subdivision (e), subsection (2).”
B. Relevant Evidence at Trial2
Counts 2 and 3 relate to an incident in September 2015 involving E.R. E.R. was
six years old at the time but was 12 years old by the time she testified at trial. E.R.
recalled that during this incident, a man entered her home, pulled out his penis, grabbed
her by the waist and pulled her onto his lap. When E.R. attempted to run away from the
2 Because defendant challenges only the sufficiency of the evidence to establish his identity as the perpetrator of the offenses alleged in counts 2 and 3, we summarize only the evidence relevant to the issue of identity in relation to those charges.
4 man, he tried to prevent her from exiting the room by blocking the doorway. However,
E.R. was able to squeeze by and get out of the room.
E.R. confirmed that she participated in a recorded interview with law enforcement
shortly after the incident, and the recording was played for the jury. In the recording,
E.R. provided a more detailed account of the events, describing how the man initially
hugged her, rubbed her face, and touched her “privates” when he first entered E.R.’s
home. He later directed E.R. to a separate room where he pulled her onto his lap, while
touching her legs and genital areas. At various times during this interview, E.R.
described physical features of the man involved in the incident.
E.R. testified that she remembered what the man involved in the incident looked
like, but she was unable to identify defendant while testifying on the stand. However,
E.R. confirmed that she had previously identified the man in a photographic lineup. The
photograph she selected during the photographic lineup was published to the jury and
admitted into evidence. On cross-examination, E.R. admitted that it took a long period of
time before she was able to select the photograph that she believed depicted the man
involved in the incident. She also reconfirmed that she could not identify any individuals
in the courtroom as the man involved in the incident.
A former police detective testified that he was involved in the initial response and
investigation of the incident involving E.R. The detective testified that following E.R.’s
initial police interview, E.R. sat down with a professional sketch artist who developed a
sketch of the man involved in the incident based upon E.R.’s description. The sketch was
admitted into evidence.
5 A second police detective testified that she arrested defendant as the result of a
different incident a year later in 2016. However, based upon the similarities with the
incident involving E.R., the detective contacted E.R. to participate in a photographic
lineup. The detective confirmed that E.R. identified a photograph of defendant as the
man involved in the 2015 incident. However, on cross-examination, the detective
admitted that, in a prior court proceeding, E.R. had identified defendant’s brother as the
perpetrator instead of defendant.
C. Verdict and Sentence
A jury convicted appellant on all charges and found true the special circumstance
allegations. The trial court sentenced defendant to (1) a term of life in prison without the
possibility of parole for committing a lewd act on a child under the age of 14 years by
means of force, violence or duress (§ 288, subd. (b)(1); count 9); (2) three consecutive
terms of 25 years to life for each count of committing a lewd act on a child under the age
of 14 years (§ 288, subd. (a); counts 2, 3, 7); (3) a consecutive term of six years for the
first degree burglary of an inhabited dwelling (§§ 459, 462, subd. (a); count 4); (4) two
consecutive terms of seven years to life for assault during the course of a first degree
burglary (§ 220, subd. (b); counts 5, 8); and (5) concurrent terms for aggravated
trespassing (§ 602.5, subd. (b); count 1) and disorderly conduct (§ 647, subd. (i); count
6).
6 III. DISCUSSION
A. Sufficient Evidence in the Record Supports the Convictions on Counts 2 and 3
On appeal, defendant claims that the evidence was insufficient to support his
conviction on counts 2 and 3 (§ 288, subd. (a)). Defendant does not challenge the
sufficiency of the evidence to establish the substantive elements of these offenses but
only the sufficiency of the evidence to support a finding that he was the individual who
committed the alleged offenses. We disagree.
1. General Legal Principles and Standard of Review
Generally, regardless of the statutorily defined elements of an offense, the People
bear the burden to prove beyond a reasonable doubt that the defendant was the
perpetrator of any charged crimes. (People v. Foster (2010) 50 Cal.4th 1301, 1345;
People v. Lemcke (2021) 11 Cal.5th 644, 658.)
“We review claims of insufficient evidence by examining the entire record in the
light most favorable to the judgment to determine whether substantial evidence exists for
a reasonable jury to find the challenged jury finding true beyond a reasonable doubt.
[Citation.] To be substantial, the evidence must be reasonable, credible, and of solid
value. [Citation.] In conducting our review, we may not reweigh issues of credibility
and we presume the existence of every fact the jury could reasonably deduce from the
evidence in support of [its] verdict.” (People v. Ramirez (2021) 72 Cal.App.5th 550,
558-559.)
7 2. Application
In this case, we are satisfied that the record contains substantial evidence upon
which the jury could rely to conclude defendant was the perpetrator of the crimes charged
in counts 2 and 3. It is undisputed that E.R. identified a photograph of defendant as the
man involved in the incident during a photographic lineup. Additionally, the jury had the
opportunity to hear a recorded interview in which E.R. provided various physical
descriptions of the perpetrator, as well as the opportunity to review the composite sketch
that was developed based upon E.R.’s description of the perpetrator. This was substantial
evidence upon which the jury could rely to conclude that defendant was the perpetrator of
the crimes charged in counts 2 and 3. (People v. Boyer (2006) 38 Cal.4th 412, 480
(Boyer) [“Identification of the defendant by a single eyewitness may be sufficient to
prove the defendant’s identity as the perpetrator of a crime. . . . Moreover, a testifying
witness’s out-of-court identification is probative for that purpose and can, by itself, be
sufficient evidence of the defendant’s guilt even if the witness does not confirm it in
court.”]; People v. Hester (2020) 58 Cal.App.5th 630, 635 [same].)
On appeal, defendant acknowledges that the evidence in this case includes
multiple out-of-court identifications of defendant, but he argues that such evidence is not
reliable because (1) the photographic lineup was conducted a year after the incident;
(2) E.R.’s statements regarding the photographic lineup were not unequivocal; (3) E.R.
was not asked to positively confirm that the sketch artist’s rendering depicted the
perpetrator of the crimes; (4) E.R. identified a relative of defendant’s as the perpetrator of
the crime in a prior court proceeding; (5) E.R. was unable to identify defendant at the
8 time of trial; and (6) there was a lack of other corroborating evidence to connect
defendant to the 2015 incident. However, “[i]t is the province of the trier of fact to
decide whether an inference should be drawn and the weight to be accorded that
inference,” and “[a]n appellate court will not interfere with the decision of the trier of
fact, even if the court believes that a contrary conclusion would have been reasonable.”
(People v. Massie (2006) 142 Cal.App.4th 365, 374; see People v. Culver (1973)
10 Cal.3d 542, 548 [“The reviewing court does not perform the function of reweighing
the evidence,” and it “must draw all inferences in support of the verdict that can
reasonably be deduced from the evidence.”].) In our view, defendant’s arguments all
address the credibility of E.R.’s testimony, the weight to be afforded that testimony, and
which inferences defendant believes the jury should have drawn. These are simply not
grounds for reversal based upon a claim of insufficient evidence.
Defendant also argues that the out-of-court identifications in this case must be
considered insufficient as a matter of law, citing to portions of our Supreme Court’s
discussion in People v. Cuevas (1995) 12 Cal.4th 252 (Cuevas). We disagree with
defendant’s reading of Cuevas. Prior to Cuevas, “[a]n extrajudicial identification that
[could not] be confirmed by an identification at the trial [was] insufficient to sustain a
conviction in the absence of other evidence tending to connect the defendant with the
crime.” (People v. Gould (1960) 54 Cal.2d 621, 631, disapproved by Cuevas, at p. 257.)
Cuevas abrogated the rule articulated in Gould, concluding instead that the sufficiency of
evidence regarding identification should be governed by the same substantial evidence
test applicable to other types of evidence. (Cuevas, at pp. 271-272.)
9 In explaining its decision to abrogate the rule set forth in Gould, supra, 54 Cal.2d
621, our high Court discussed various considerations that might bolster the reliability of
an out-of-court identification, which the test developed in Gould failed to consider.
(Cuevas, supra, 12 Cal.4th at p. 267.) However, nothing in Cuevas suggests that our high
court intended its discussion to represent a new, multi-factor test to be applied to
evidence of out-of-court identifications. Instead, as explained by the high court, its
discussion was simply intended to illustrate the point that “the case-by-case analysis that
we apply in reviewing the sufficiency of other types of evidence under the substantial
evidence test is preferable [to the rule set forth in Gould] because it permits an
individualized assessment of the probative value of the particular out-of-court
identification at issue.” (Cuevas, at p. 269.) Further, to the extent there was any
ambiguity on this point, the California Supreme Court subsequently clarified it’s view in
Boyer, supra, 38 Cal.4th 412, where it unequivocally expressed the view that “a
testifying witness’s out-of-court identification is probative for that purpose and can, by
itself, be sufficient evidence of the defendant’s guilt even if the witness does not confirm
it in court.” (Id. at p. 480.)
Our review of the record reveals substantial evidence upon which the jury could
have relied to conclude that defendant was the perpetrator of the crimes charged in counts
2 and 3. As such, we see no basis to reverse his convictions on these counts.
10 B. Defendant Had Adequate Notice of a Potential Sentence Pursuant to Section 667.61,
Subdivision (j)
Defendant also contends that his sentence on counts 2, 3, 7, and 9 must be
reversed because the trial court applied section 667.61, subdivision (j), but the allegations
of the second amended information were not sufficient to give him adequate notice that
he could be subject to the provisions of that statute. We agree with the People that this
claim has been forfeited and, even in the absence of forfeiture, we would conclude the
claim is without merit.
“[T]he One Strike law, Penal Code section 667.61 . . . provides an alternative,
more severe set of penalties for certain sex offenses committed under certain enumerated
circumstances.” (People v. Anderson (2020) 9 Cal.5th 946, 954 (Anderson).) “The One
Strike law requires that the circumstances supporting enhanced sentencing be pleaded
and proved . . . .” (People v. Laanui (2021) 59 Cal.App.5th 803, 819; § 667.61,
subd. (o).) Thus, a trial court errs when it “impos[es] a One Strike sentence based on an
unpleaded . . . circumstance,” “[e]ven though the facts that would establish the . . .
circumstance . . . were evident from the information.” (Anderson, at p. 954.)
Generally, a claim attacking the sufficiency of an accusatory pleading is reviewed
de novo. (People v. Perlas (2020) 47 Cal.App.5th 826, 832; People v. Quiroz (2013)
215 Cal.App.4th 65, 70-71 [de novo standard of review applied to claim prosecution
provided inadequate notice of a new theory of liability prior to trial].) Further, while not
explicitly setting forth the applicable standard of review, the California Supreme Court
11 has, in practice, independently reviewed the sufficiency of the allegations in a pleading in
order to resolve claims that the People failed to adequately plead special circumstances
pursuant to section 667.61. (See People v. Mancebo (2002) 27 Cal.4th 735, 742-745;
Anderson, supra, 9 Cal.5th at p. 961.)
2. Forfeiture
Initially, we agree with the People that defendant forfeited this claim by failing to
raise the issue in the trial court proceedings. Generally, the imposition of unpleaded
sentence enhancements is an error that may be forfeited by a defendant’s failure to object
in the trial court. (People v. Haro (2021) 68 Cal.App.5th 776, 789; People v. Houston
(2012) 54 Cal.4th 1186, 1225-1229 [defendant forfeited claim of sentencing error based
on failure of accusatory pleading to comply with pleading requirements of section 664].)
Here, defendant concedes that he never objected to the sentences imposed on counts 2, 3,
7, and 9. Thus, any claim of error with respect to the trial court’s sentence on these
counts has clearly been forfeited.
Defendant contends that the forfeiture rule does not apply because the failure to
provide proper notice of a potential penalty under section 667.61 results in an
unauthorized sentence.3 However, our Supreme Court has “made clear that ‘impos[ition
of] unpleaded sentence enhancements is an error of a different variety’ from the
3 “An unauthorized sentence is one that ‘ “could not lawfully be imposed under any circumstance in the particular case” ’ regardless of the facts.” (People v. King (2022) 77 Cal.App.5th 629, 641, fn. 8.) “[U]nder the unauthorized sentence rule, a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court,” and “[s]uch a sentence may be challenged at any time . . . .” (Id. at p. 635.)
12 imposition of an unauthorized sentence,” and “this error is one that may be forfeited.”
(People v. Haro, supra, 68 Cal.App.5th at p. 789; Anderson, supra, 9 Cal.5th at p. 962
[rejecting “the notion that a pleading defect necessarily results in an unauthorized
sentence” and explaining that imposition of “unpleaded sentence enhancements is an
error of a different variety”].)4 Thus, the unauthorized sentence rule does not apply, and
defendant cannot raise the issue for the first time on appeal.
3. Defendant Would Not Be Entitled to Reversal, Even Absent Forfeiture
Even in the absence of forfeiture, we would conclude that defendant is not entitled
to reversal on the merits. In our view, the accusatory pleading provided sufficiently
adequate notice that defendant was potentially subject to the penalties set forth in section
667.61, subdivision (j).
We acknowledge that the Courts of Appeal are divided over whether the People
are required to specifically reference section 667.61, subdivision (j), in the accusatory
pleading to provide adequate notice that a defendant may be subject to its provisions. In
Jimenez, supra, 35 Cal.App.5th 373, the People alleged sentence enhancements pursuant
4 We acknowledge that numerous courts of appeal, including this court, have previously concluded that the imposition of sentence under section 667.61 without providing adequate notice in the accusatory pleading results in an unauthorized sentence. (People v. Jimenez (2019) 35 Cal.App.5th 373, 395 (Jimenez) [concluding that an unauthorized sentence occurs when a court sentences a defendant pursuant to section 667.61 without adequate notice in the accusatory pleading]; In re Vaquera (2019) 39 Cal.App.5th 233, 238 (Vaquera) [same], review granted Nov. 26, 2019, S258376; People v. Nguyen (2017) 18 Cal.App.5th 260, 271 (Nguyen) [same].) However, all of these decisions predate the California Supreme Court’s opinion in Anderson.
13 to section 667.61, but referenced only subdivisions (b) and (e) without a specific
reference to subdivision (j). (Jimenez, supra, 35 Cal.App.5th at pp. 377-378.) The
appellate court concluded that, in doing so, “the information only informed [the
defendant] he could be sentenced to terms of 15 years to life under . . . section 667.61,
subdivisions (b) and (e),” but it “did not put [the defendant] on notice that he could be
sentenced to terms of 25 years to life under section 667.61[, subdivision] (j)(2) . . . .”
(Jimenez, at p. 397.)
However, two published decisions have since disagreed with the reasoning in
Jimenez, and the California Supreme Court has granted review to resolve the split in
authority. (Vaquera, supra, 39 Cal.App.5th at pp. 241-242, 244; People v. Zaldana
(2019) 43 Cal.App.5th 527, 532-536 (Zaldana), review granted Mar. 18, 2020, S259731.)
As we explain, we find the reasoning in Vaquera and Zaldana more persuasive.
First, our Supreme Court has consistently held that “unless the Legislature requires
otherwise, the ‘accusatory pleading need not specify by number the statute under which
the accused is being charged.’ ” (People v. Tirado (2022) 12 Cal.5th 688, 698.) Instead,
an accusatory pleading is sufficient “as long as the pleading apprises the defendant of the
potential for the enhanced penalty and alleges every fact and circumstance necessary to
establish its applicability.” (People v. Tardy (2003) 112 Cal.App.4th 783, 787; see
People v. Thomas (1987) 43 Cal.3d 818, 831 [“ ‘[M]odification of the judgment for a
misstatement of [an] underlying enhancement statute is required only where the
defendant has been misled to his prejudice.’ ”].) The decision in Jimenez, supra,
35 Cal.App.5th 373, requiring specific reference to section 667.61, subdivision (j), in
14 order to render an accusatory pleading adequate does not recognize or even discuss this
long-held rule of pleading in its analysis.
Second, Jimenez relied principally on the holding in People v. Mancebo (2002)
27 Cal.4th 735 (Mancebo). (Jimenez, supra, 35 Cal.App.5th at p. 396.) However,
Mancebo involved a situation in which special circumstances under section 667.61 were
properly pleaded and proved, but the trial court substituted an unpled circumstance so
that the special circumstance actually pleaded and proved at trial could be used to impose
a separate enhancement at the time of sentencing. (Mancebo, at p. 740.) As a result, our
high court concluded that the accusatory pleading in Mancebo did not comply with the
statutory requirement that the special circumstance within the meaning of section 667.61,
subdivisions (d) and (e), must be alleged in the accusatory pleading. (§ 667.61,
subd. (o).) In contrast, defendant concedes that, in this case, the factual circumstances
upon which the trial court relied to impose sentence pursuant to section 667.61,
subdivision (j), were adequately alleged and proved at trial. As recognized in both
Vaquera and Zaldana, the reasoning in Mancebo does not extend to situations where, as
here, the special circumstances at issue are actually alleged in the accusatory pleading as
special circumstance in support of the very enhancement that the trial court imposed.
Finally, as noted in both Vaquera and Zaldana, specific reference to section
667.61, subdivision (j), would seem unnecessary to afford a defendant fair notice that he
might be subject to its penalties because the plain words of section 667.61 itself explain
the factual circumstances that will trigger the application of subdivision (j). (Vaquera,
supra, 39 Cal.App.5th at p. 245; Zaldana, supra, 43 Cal.App.5th at p. 536.) Specifically,
15 section 667.61 includes five subdivisions providing for greater penalties. (§ 667.61,
subds. (a), (b), (j), (l), (m).) However, each subdivision sets forth the factual
circumstances that will trigger its application5 and, as written, any specific set of
circumstances will only trigger the application of one of the subdivisions.6 Thus, as
observed in Vaquera and Zaldana, the provisions of section 667.61 do not involve any
discretionary choice between the various penalty provisions. (Vaquera, at p. 245;
Zaldana, at p. 536.) Given this plain reading of the statute, specific reference to any of
the penalty subdivisions would seem unnecessary to provide a defendant adequate notice
of a potential penalty because section 667.61 itself explains which penalty provision will
apply if the facts alleged in the accusatory pleading are found true.
Here, the accusatory pleading (1) charged defendant with underlying offenses
listed in section 667.61, subdivision (c); (2) alleged that the victims of these offenses
5 Section 667.61, subdivisions (l) and (m) only apply where the underlying offense for which a defendant is convicted is listed in subdivision (n). Subdivision (j)(1) provides that it will apply where a person is “convicted of an offense specified in subdivision (c), with the exception of a violation of [section 288,] subd.(a), upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) . . . .” (§ 667.61, subd. (j)(1).) Likewise subdivision (j)(2) will apply where a person is “convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age . . . .”
6 For example, subdivision (b) expressly provides that it will only apply if subdivisions (a), (j), (l), or (m) do not apply; subdivision (a) expressly provides that it will only apply if subdivisions (j), (l), or (m) do not apply; and, in a situation in which multiple circumstances exist to support the application of different subdivisions, the statute mandates use of the subdivision that will impose the greatest term (§ 667.61, subd. (f)).
16 were under the age of 14 years at the time; (3) alleged that the underlying offense
qualified as one of the offenses listed in section 667.61, subdivision (c); and (4) further
alleged that the underlying offenses were committed under a special circumstance within
the meaning of section 667.61, subdivision (d)(4). Given these allegations, specific
reference to section 667.61, subdivision (j), was unnecessary to provide fair notice.
Subdivisions (a) and (b) of section 667.61 specifically advise an accused that conviction
for an offense specified in subdivision (c) will be punished under subdivisions (j), (l), or
(m) when those subdivisions are applicable. Because of the cross-referencing of
subdivisions within this statute, it is clear that it must be read in its entirety to determine
the appropriate sentence. Under a proper reading of the statute, section 667.61,
subdivision (j)(1) and (2), was the only penalty provision that would be triggered if each
of the facts alleged in the accusatory pleading were to be found true.7 Thus, the
allegations of the accusatory pleading were sufficient to apprise defendant that he could
be subject to the enhanced penalties set forth in section 667.61, subdivision (j), even
without explicit reference to that subdivision. As such, even in the absence of forfeiture,
7 For this reason, the case before us is distinguishable from this court’s prior decision in Nguyen, supra, 18 Cal.App.5th 260. In that case, the alleged facts gave rise to three potentially applicable sentence enhancements, the prosecution referenced only two of the three enhancements in the information, and we concluded it was error for the trial court to impose the unreferenced enhancement when sentencing the defendant. (Id. at pp. 262-263.) Thus, unlike the circumstances presented in this case, it was possible for the defendant in Nguyen to argue he was reasonably misled as to which sentence enhancement might apply at the time of sentencing. Notably, even in Nguyen, we rejected the proposition that “an information must cite the applicable enhancement statute” to be considered adequate. (Id. at p. 267.)
17 we would find no basis for reversal of defendant’s sentence on the ground he was
provided inadequate notice in the accusatory pleading.
C. Defendant Is Entitled to a Full Resentencing In Light Of Amendments to Section
1170, Subdivision (b)
In supplemental briefing, defendant contends that his sentence on count 4 must be
vacated in light of amendments made to section 1170, subdivision (b), which now
generally requires that circumstances in aggravation used to increase a defendant’s
sentence must be found true beyond a reasonable doubt by a jury or by a judge in a court
trial. (Id. at subd. (b)(2); Stats. 2021, ch. 731, § 1.) The People concede that the
amendments to section 1170, subdivision (b), apply retroactively to defendant’s case, but
contend that any error in failing to have the truth of aggravating circumstances
determined by a jury was harmless. We conclude that the record is insufficient for us to
find the error harmless. As a result, defendant’s sentence must be vacated and the matter
remanded for a full resentencing.
1. Relevant Background
Count 4 of the second amended information charged defendant with first degree
burglary (§§ 459, 462, subd. (a)) arising out of an incident in May 2016. The only
witnesses to testify regarding this incident were sisters, N.C. and Y.C. At the time of the
incident, Y.C. was 22 years old and N.C. was 28 years old.
N.C. testified that, at approximately 3:00 a.m., on the date of the incident, she was
sleeping in her bedroom when she was awakened by someone pulling at her underwear.
Upon waking up, she sat up and saw an unknown man leaving her room. Shortly after
18 she woke up, N.C. heard her sister, Y.C., scream from another room in their home. When
N.C. went to investigate, she heard the front door of the home slam shut, a vehicle engine
turn on outside, and the sound of a vehicle driving away.
Y.C. testified that in the early morning on the date of the incident, she was
sleeping in her bedroom, when she was awakened by her blanket being pulled away and a
hand touching her inner thigh. She woke to find an unknown man in her room who was
masturbating with his pants pulled down. When the man reached toward her, she
screamed. Y.C. testified that she later discovered that cash had been taken from her purse
and expensive watches had been taken from N.C.’s room.
The jury found defendant guilty of first degree burglary on count 4. At
sentencing, the trial court identified four circumstances in aggravation: (1) the crime
involved violence, great bodily harm, threat of great bodily harm, or other acts disclosing
a high degree of cruelty, viciousness or callousness; (2) the victims were particularly
vulnerable; (3) the manner in which the crime was carried out indicates planning,
sophistication, or professionalism; and (4) defendant engaged in violent conduct
representing a danger to society. It balanced these circumstances against one
circumstance in mitigation and sentenced defendant to the upper term of six years on
count 4.
2. General Legal Principles and Standard of Review
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended
section 1170, subdivision (b), which guides the trial court’s discretion in sentencing a
defendant when the applicable statutes specify three possible terms for the imposition of
19 a judgment of imprisonment. (Stats. 2021, ch. 731, § 1.) As amended, section 1170,
subdivision (b), now provides the middle term of imprisonment as the presumptive
sentence and permits a trial court to “impose an upper term sentence only where there are
aggravating circumstances in the crime and the defendant has either stipulated to the facts
underlying those circumstances or they have been found true beyond a reasonable doubt.”
(People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores); see § 1170, subd. (b)(2).)
Under the amended statute, the truth of any facts used to support an aggravating
circumstance must be tried in a bifurcated proceeding, except where the evidence is also
relevant to prove or defend against a charged offense or enhancement.8 (§ 1170,
subd. (b)(2); Stats. 2021, ch. 731, § 1.) These amendments apply retroactively to all
cases not yet final because they have the potential to lessen the punishment for a
defendant’s crimes. (Flores, supra, 75 Cal.App.5th at p. 500; People v. Garcia (2018)
28 Cal.App.5th 961, 972-973; In re Estrada (1965) 63 Cal.2d 740, 744-745.)
Published California appellate decisions that have considered the retroactive
application of the current version of section 1170, subdivision (b), appear to uniformly
recognize that the failure to submit an aggravating circumstance for determination by a
jury does not require reversal where such error is harmless. However, they differ
significantly on the correct test to apply to determine whether such error was harmless.
8 While not relevant here, the statute also contains an exception that permits the trial court to consider a defendant’s prior convictions based upon a certified record of conviction to find a circumstance in aggravation without submission of this fact to a jury. (§ 1170, subd. (b)(3).)
20 In Flores, supra, 75 Cal.App.5th 495 and People v. Salazar (2022) 80 Cal.App.5th
453 (Salazar), review granted Oct. 12, 2022, S275788, the courts of appeal concluded
that “ ‘[i]f a reviewing court concludes, beyond a reasonable doubt, that the jury,
applying the beyond-a-reasonable-doubt standard, unquestionably would have found true
at least a single aggravating circumstance had it been submitted to the jury,’ the error is
harmless.” (Flores, at p. 500; Salazar, at p. 465 [“Flores is the standard governing
appellate review.”].)
In People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez) and People v. Wandrey
(2022) 80 Cal.App.5th 962 (Wandrey), review granted Sept. 28, 2022, S275942, the
courts of appeal concluded that the standard articulated in Flores was incomplete and
instead, to find harmless error, a reviewing court must conclude beyond a reasonable
doubt that (1) a jury would have unquestionably found true beyond a reasonable doubt
every aggravating factor upon which the trial court relied at the time of sentencing, and
(2) the trial court would not have exercised its discretion differently if it had been aware
of the statutory presumption in favor of the middle term (Lopez, at pp. 463, 466-467;
Wandrey, at p. 982).
In People v. Zabelle (2022) 80 Cal.App.5th 1098 (Zabelle) and People v. Dunn
(2022) 81 Cal.App.5th 394 (Dunn, review granted Oct. 12, 2022, S275655), the courts of
appeal articulated yet a third standard, holding that in order to find error harmless, a
reviewing court must (1) conclude beyond a reasonable doubt that a jury would have
unquestionably found true at least one aggravating factor beyond a reasonable doubt;
(2) determine whether it is reasonably probable that a jury would have found true any
21 remaining aggravating factors relied upon by the trial court to impose an upper term
sentence; and (3) conclude that it is reasonably probable the trial court would not have
exercised its discretion differently had it considered only the aggravating factors the jury
would have unquestionably found true beyond a reasonable doubt and those factors that
the reviewing court finds reasonably probable that the jury would have found true
(Zabelle, at p. 1112-1113; Dunn, at pp. 409-410).
3. Application
In this case, we find it unnecessary to resolve the split of authority in order to
conclude that remand is necessary. Under any of the tests articulated by the courts of
appeal, a reviewing court must, at the very least, be able to conclude beyond a reasonable
doubt that the jury would have found at least one aggravating circumstance true beyond a
reasonable doubt. (Flores, supra, 75 Cal.App.5th at p. 500; Lopez, supra, 78 Cal.App.5th
at p. 463; Zabelle, supra, 80 Cal.App.5th at p. 1112.) As we explain, the record does not
permit us to reach such a conclusion in this case.
The first aggravating circumstance relied upon by the trial court was that the crime
involved great violence, great bodily harm, the threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness. (Cal. Rules of Court,
rule 4.421(a)(1).) Similarly, the fourth aggravating circumstance relied upon by the trial
court required a finding that defendant engaged in violent conduct representing a serious
danger to society. (Cal. Rules of Court, rule 4.421(b)(1).) In our view, the evidence in
the record is simply not sufficient for us to conclude that a jury would have
unquestionably found either of these circumstances true beyond a reasonable doubt.
22 The evidence regarding the commission of count 4 was exceptionally brief,
involving only the testimony of two sisters. Both sisters testified that they each had a
brief encounter with defendant, in which defendant touched them in their sleep but then
quickly left once he realized they were awake. There was no evidence that either sister
suffered any physical harm as the result of this incident. Such evidence, while
demonstrating serious criminal misconduct, hardly compels a conclusion that the crime
involved the threat of great bodily harm or a high degree of cruelty. Additionally, while
defendant’s behavior was unquestionably disturbing and suggested he posed some degree
of danger to society, the evidence related to count 4 did not necessarily compel a finding
that the danger posed was the result of violent conduct. Tellingly, the People do not
attempt to argue that a jury would have unquestionably found these circumstances true
beyond a reasonable doubt and, instead, it entirely ignores these two circumstances in
their argument on appeal.
The second circumstance relied upon by the trial court is that the victims were
particularly vulnerable. (Cal. Rules of Court, rule 4.421(a)(3); 3RT 589-590.) Our
Supreme Court has repeatedly recognized that, because this circumstance in aggravation
“rests on a somewhat vague or subjective standard, it may be difficult for a reviewing
court to conclude with confidence that, had the issue been submitted to the jury, the jury
would have assessed the facts in the same manner as did the trial court.” (People v.
Boyce (2014) 59 Cal.4th 672, 728-729 [conflicting evidence precluded a finding that the
jury would have unquestionably found true the fact that victim was particularly
vulnerable]; People v. Sandoval (2007) 41 Cal.4th 825, 840-841 [same].)
23 Here, in finding this aggravating circumstance true, the trial court cited to three
items of evidence: (1) the victims were sleeping at the time the offense was committed;
(2) the victims were in their home at the time the offense was committed; and (3) children
were among the victims. The People argue that a jury would have unquestionably agreed
with the trial court’s analysis because the jury necessarily found true that some of
defendant’s crimes involved victims under the age of 14 years, and that defendant entered
a home in the commission of the offense in count 4. However, defendant’s entry into an
inhabited home is a substantive element of first degree burglary (§§ 459, 460 & 461) and,
as a result, cannot be relied upon as an aggravating circumstance justifying the imposition
of an upper-term sentence (People v. Scott (1994) 9 Cal.4th 331, 350 [trial court may not
use a fact constituting an element of the offense to aggravate or enhance a sentence]).
Additionally, while defendant was convicted of various offenses involving victims under
the age of 14 years, count 4 was not one of them. Thus, the trial court could not have
relied upon this fact to find an aggravating circumstance in relation to count 4. (People v.
Price (1984) 151 Cal.App.3d 803, 812 [An “aggravating fact must be reasonably related
to the sentence choice on each count.”]; see People v. Garcia (1995) 32 Cal.App.4th
1756, 1779 [In selecting a term for a substantive offense, the trial court can only use
factors in aggravation if they relate to that offense.].)
This leaves only the fact that the victims were sleeping at the time defendant
committed the offense. In our view, this fact is not sufficient to compel a finding that the
victims were particularly vulnerable within the meaning of California Rules of Court,
rule 4.421(a)(3). (People v. Bloom (1983) 142 Cal.App.3d 310, 321-322 [The
24 “ ‘particularly vulnerable’ ” circumstance is generally “applied exclusively in criminal
cases involving violent felonies, where the age or physical characteristics of the victim,
or the circumstances under which the crime is committed, make the defendant’s act
especially contemptible.”].) While the fact a victim was sleeping at the time an offense
was committed may be relevant to a finding of particular vulnerability, it is not so
unusual that a jury would unquestionably find this aggravated circumstance true based
upon this evidence alone. (See People v. French (2008) 43 Cal.4th 36, 54 [failure to
submit aggravating factor to jury was not harmless where reviewing court “cannot say the
evidence on that point was overwhelming”].)
Finally, the third circumstance relied upon by the trial court was that the manner in
which the crime was carried out indicates planning, sophistication, or professionalism.
(Cal. Rules of Court, rule 4.421(a)(8).) Both the trial court and the People relied on the
fact that defendant was convicted of multiple offenses that were separated in time, but
similar in nature, to infer that defendant engaged in planning, sophistication, or
professionalism. While all of defendant’s offenses appear to have involved some form of
sexualized acts, the evidence also suggests that, in the commission of count 4, defendant
located and appropriated valuables from N.C. and Y.C.’s home prior to engaging in any
acts of a sexual nature. Thus, a jury could have equally inferred that defendant’s initial
intent in the commission of count 4 was dissimilar to the other offenses, suggesting a
crime of opportunity instead of planning or sophistication. We cannot conclude that a
jury would have unquestionably found this aggravating circumstance true where it
25 appears “just as likely . . . that the jury would have found they were not planned,
sophisticated, or professional.” (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1472.)
Because the record in this case is simply not sufficient for us to conclude that any
of the aggravating factors upon which the trial court relied would have unquestionably
been found true beyond a reasonable doubt if submitted to a jury, the error cannot be
deemed harmless under any of the tests currently articulated by the courts of appeal.
4. Defendant is Entitled to a Full Resentencing Upon Remand
On appeal, defendant requests only that we vacate the sentence on count 4 as a
result of the failure to submit factors in aggravation to a jury for determination as
required by the version of section 1170, subdivision (b), now in effect. (Stats. 2021,
ch. 731, § 1.) However, “[t]he full resentencing rule dictates that ‘when part of a
sentence is stricken on review, on remand for resentencing “a full resentencing as to all
counts is appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances.” ’ ” (People v. Lopez (2020) 56 Cal.App.5th 835, 844-845;
see People v. Buycks (2018) 5 Cal.5th 857, 893.) Thus, under the full resentencing rule,
defendant’s entire sentence should be vacated, and the trial court is permitted to
reexamine any aspect of defendant’s sentence upon resentencing.
Given this conclusion, we need not address defendant’s additional claims that his
sentence on count 6 is unconstitutional or that the abstract of judgment contains
inaccuracies. While the People appear to have conceded these issues on appeal, the
parties and the trial court will have the opportunity to address these issues anew at the
time of resentencing.
26 We also need not decide whether the People should be granted an election to
proceed under the “new version” of section 1170, subdivision (b). (Stats. 2021, ch. 731,
§ 1.) We see no reason why such an election is prohibited, as section 1170, subdivision
(b), expressly contemplates the trial of circumstances in aggravation be held in a
bifurcated proceeding separate from the trial of charges and enhancements (§ 1170, subd.
(b)(2); Stats. 2021, ch. 731, § 1), and the right to have every element of an offense tried
to a jury and proved beyond a reasonable doubt does not “mean that the same jury that
finds a defendant guilty of an offense must always decide the truth of an attached penalty
allegation” (People v. Anderson (2009) 47 Cal.4th 92, 119-120). Nevertheless, the issue
should be raised and decided by the trial court in the first instance.9
9 We cannot presume the trial court will exercise its discretion in the same manner upon resentencing. Given the number of counts and enhancements involved in defendant’s sentence in this case, combined with the fact that the trial court imposed only concurrent sentences on some of the counts involved, it is possible that upon resentencing, the trial court will indicate its intent to exercise its discretion in a different manner that renders the issue moot or causes the parties to decline to pursue a bifurcated trial on aggravating factors. Thus, the most appropriate course of action is to reserve the matter for the trial court to decide in the first instance.
27 IV. DISPOSITION
Defendant’s convictions are affirmed; his sentence is vacated and the matter
remanded for a full resentencing. On remand, the trial court is entitled to reconsider
every aspect of defendant’s sentence and, in its discretion, may grant the People the
opportunity to try any circumstances in aggravation in a bifurcated proceeding pursuant
to the amended version of section 1170, subdivision (b).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
McKINSTER Acting P. J.
MENETREZ J.