People v. Ramirez CA4/2

• Court: California Court of Appeal
• Decided: July 9, 2024
• Docket: E077359A
• Status: Unpublished

Opinion

Filed 7/9/24 P. v. Ramirez CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Donald W. Ostertag, Steve Oetting and Paige B. Hazard, 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 pursuant to

section 667.61 (one strike law) 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 against a victim

under the age of 14 years (§ 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

1 Undesignated statutory references are to the Penal Code.

2 sufficiently specific to afford him adequate notice that he could be sentenced pursuant to

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.

In our original opinion in this appeal, we concluded that sufficient evidence

supports defendant’s convictions on counts 2 and 3, and we also concluded that the

information was sufficiently specific to afford adequate notice that defendant could be

sentenced pursuant to section 667.61, subdivision (j). However, we agreed with

defendant that the matter must be remanded for resentencing in light of the amendments

to section 1170, subdivision (b). The Supreme Court granted a petition for review and,

after issuing its decision in In re Vaquera (2024) 15 Cal.5th 706 (Vaquera), returned the

matter to us with directions to vacate our decision and reconsider the cause in light of

Vaquera. After consideration of Vaquera and the parties’ supplemental briefs on the

matter, we reach the same disposition as set forth in our original opinion.

II. BACKGROUND

A. Procedural History and Charges

In 2017, the People filed an information alleging defendant had engaged in

numerous offenses arising out of multiple incidents from August 2015 through

October 2016.{CT 150-155} 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

3 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 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).{Ibid.}

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).”{CT 150-155}

In November 2018, the People filed a first amended information which added the

following special allegation: “It is further alleged that in the present case and [causes,]

defendant committed a qualifying sex offense against more than one victim as listed in

Penal Code section 667.61, subdivision (e)(4) & (5) [15-L, 25-L, LWOP].”{CT 195}

The case was tried in a court trial; defendant was found guilty on all counts; and each of

4 the special allegations were found true.{CT 279-280} The People filed a sentencing

memorandum arguing that the facts pled and proved at trial triggered the enhanced

penalties provided in section 667.61, subdivision (j), with respect to counts 2, 3, 7, and

9;{CT 294} and the trial court sentenced defendant pursuant to that provision.{CT 334,

340}

In 2020, the original judgment of conviction was vacated on appeal2 and, upon

remand, the trial court ordered that the matter be retried as to all counts and all special

allegations pursuant to section 667.61.{CT 350} The People proceeded to file a second

amended information, which substantively repeated all of the same factual allegations

alleged in the first amended information but omitted the bracketed phrase.{CT 384}

B. Relevant Evidence at Trial3

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 In an unpublished opinion, this court vacated defendant’s judgment but held that

defendant may be retried on all the charges and special allegations pursuant to section 667.61, with the exception of section 667.61, subdivision (e)(5). (People v. Ramirez (May 21, 2020) E072111 [nonpub.].) 3 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.

5 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.

6 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

Prior to closing argument and the submission of the case to the jury, the parties

conducted a conference to discuss jury instructions.{RT 461-462} While most of the

conference was held off the record, the trial court permitted the parties to argue with

respect to instructions upon which they could not agree.{Ibid.} During this argument, the

prosecutor specifically stated his view that, should the prosecution prove its special

allegations pursuant to section 667.61, defendant would be subject to a sentence of 25

years to life in state prison or life without the possibility of parole.{RT 463} Following

this conference, the People submitted proposed jury verdict forms, which required the

jury to find that the victims in counts 2, 3, 7, and 9 were under the age of 14 years, in

addition to the circumstances alleged pursuant to section 667.61, subdivisions (d) and (e),

in order to return a true finding on the special allegations.{CT 430, 432, 434, 439, 442,

444} Finally, while the trial court was instructing the jury, the prosecutor specifically

requested that the trial court “correct” its instructions to direct the jury that it must find

7 that the victims in counts 2, 3, 7, and 9 were under the age of 14 years in order to return a

true finding on the section 667.61 special allegations.{RT 546, 559-562}

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).

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.

8 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.)

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

9 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

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

10 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.)

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

11 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.

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 accusatory pleading were not sufficient to give him adequate notice that he could

be subject to the provisions of that statute. Our Supreme Court directed us to reconsider

this issue in light of its recent opinion in Vaquera. However, after careful consideration

of the facts presented in this case, we again conclude that this claim has been forfeited;

and, even in the absence of forfeiture, we would conclude defendant is not entitled to

reversal on this basis.

12 1. General Legal Principles and Standard of Review

“[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).) Section

667.61 includes five subdivisions providing for greater penalties (§ 667.61, subds. (a),

(b), (j), (l), (m)) and two subdivisions that set forth a variety of factual circumstances that

must be pled and proven true at trial in order to trigger one of the penalty provisions

(§ 667.61, subds. (d), (e)). When a jury finds true one of the factual circumstances

provided in the one strike law, “the offense generally will be punishable by an

indeterminate sentence of either 15 years to life or 25 years to life.” (Vaquera, supra,

15 Cal.5th at p. 713.) However, “[t]his general scheme is subject to exceptions” that

“prescribe increased punishments of 25 years to life or life without the possibility of

parole when the prosecution has pled and proved a One Strike circumstance involving a

minor victim.” (Vaquera, at p. 713; § 667.61, subds. (j), (l), (m).) As written, the trial

court has no discretion to select between different penalty provisions at the time of

sentencing because any specific set of circumstances found true by the jury will only

trigger the application of one of the penalty subdivisions.4

4 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)).

13 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

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.)

The California Supreme Court recently discussed the sufficiency of the accusatory

pleading for purposes of supporting an enhancement under section 667.61 in Vaquera. In

that case, the defendant was sentenced to an indeterminate term of 25 years to life based

upon section 667.61, subdivision (j)(2), even though the allegations in the accusatory

pleading specifically alleged defendant violated section 667.61, subdivision (b), based

upon the circumstance identified in subdivision (e)(4). (Vaquera, supra, 15 Cal.5th at

pp. 714-715, 717.) In assessing the sufficiency of this pleading, our high court first

explained that such challenges can take two forms. When an accusatory pleading fails to

allege a factual circumstance that the prosecution intends to prove to support a section

667.61 enhancement, such an omission may be a statutory violation of section 667.61,

subdivision (o). (Vaquera, at p. 718.) However, our Supreme Court went on to explain

that a pleading may also be deficient “under the rubric of due process” where it fails to

14 give fair notice to the defendant, even if it satisfies the statutory pleading requirements in

the statute. (Id. at p. 718.)

Ultimately, our high court concluded that the accusatory pleading in Vaquera was

insufficient to comport with due process. In reaching this conclusion, it reasoned that,

“[w]hen the prosecution has not alleged a particular sentencing enhancement in

connection with a specific count, a ‘defendant is ordinarily entitled to assume the

prosecution made a discretionary choice not to pursue the enhancement,’ ” and the most

reasonable reading of the accusatory pleading’s specific reference to section 667.61,

subdivision (b), is that the prosecution had elected not to pursue the more severe

enhancement provided in section 667.61, subdivision (j). (Vaquera, supra, 15 Cal.5th at

pp. 717, 720-723.) While our high court acknowledged that section 667.61, subdivision

(b)’s cross-reference to subdivision (j) created some ambiguity with respect to the

prosecution’s intent (Vaqura, at p. 723), it noted that the record failed to show the

prosecution clarified its intent to seek an enhanced sentence under section 667.61,

subdivision (j) at any point prior to the sentencing hearing (Vaquera, at p. 727).

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].)

15 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.5 However, our Supreme Court has “made clear that ‘impos[ition

of] unpleaded sentence enhancements is an error of a different variety’ from the

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”].)6 Thus, the unauthorized sentence rule does not apply, and

defendant cannot raise the issue for the first time on appeal.

5 “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.) 6 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]; 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.

16 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. In our view, the accusatory pleading in this case is not directly comparable to

the one considered in Vaquera, rendering an analysis of whether it would be sufficient for

purposes of due process more difficult.7 However, we need not resolve this question

because, even assuming the accusatory pleading in this case was ambiguous as defendant

claims,{ASB 7} the unique procedural history of this case clearly shows that defendant

had actual notice of the prosecution’s intent to seek an enhancement under section

7 In Vaquera, our Supreme Court repeatedly highlighted the accusatory pleading’s

express citation to section 667.61, subdivision (b), as reasonably suggesting the prosecution elected to pursue that enhancement in lieu of other potential enhancements under the statute. (Vaquera, supra, 15 Cal.5th at pp. 720-723, 727.) Seeking a different enhancement after trial under these circumstances raises the prospect that the accusatory pleading was not only ambiguous but deliberately misleading. (Id. at p. 722; see People v. Nash (2023) 87 Cal.App.5th 483, 494 [“principles of due process do not permit the prosecution to mislead a defendant as to potential exposure” by expressly stating an intent to seek a specific sentence and later seeking a different one, regardless of whether section 667.61’s cross-references might otherwise provide fair notice of a potential greater exposure], review granted, Mar. 22, 2023, S278610.) However, defendant concedes that the pleading in this case makes no references to any of section 667.61’s penalty provisions.{ASB 7} Thus, it cannot be interpreted as a prosecutorial exercise of discretion to seek a specific penalty and not seek a different penalty. Our Supreme Court has previously held that “ ‘modification of the judgment for a misstatement of [an] underlying enhancement statute is required only where the defendant has been misled to his prejudice.’ ” (People v. Thomas (1987) 43 Cal.3d 818, 831.) And, even in Vaquera, it hypothesized that an accusatory pleading that cites to the one strike law generally and alleges the factual basis upon which the prosecution intends to rely might be sufficient for purposes of due process. (Vaquera, at p. 725.) Ultimately, we need not resolve any tension between the Supreme Court’s holding in Vaquera and its holding in Thomas to resolve this case.

17 667.61, subdivision (j), and had ample opportunity to consider this potential sentence to

make informed decisions about the case at every pertinent stage of the proceedings.

Contrary to defendant’s argument in supplemental briefing, we respectfully

believe that the question of whether a defendant had actual notice of the prosecution’s

intent to seek a specific enhancement is not limited to a review of the accusatory

pleading.{ASB 8} In Vaquera, our high court cited to its own precedent in Anderson,

supra, 9 Cal.5th 946, and People v. Houston (2012) 54 Cal.4th 1186 (Houston) to

reaffirm reversal is not required where a defendant receives timely, actual notice of the

prosecution’s intent to seek a specific sentence enhancement, notwithstanding any

ambiguity in the accusatory pleading. (Vaquera, supra, 15 Cal.5th at pp. 727-728.) In

Houston, our high court opined that actual notice can take the form of the trial court’s

express indication of what the defendant’s sentence exposure might be prior to the

submission of the case to a jury, as well as the prosecution’s request for specific jury

instructions and verdict forms that disclose its intent to pursue a specific enhancement.

(Houston, at p. 1227.) In Anderson, our high court suggested that actual notice might

also take the form of “midtrial discussion highlighting the prosecution’s intent to seek the

more serious . . . enhancements”; express statements that the prosecution intends to seek

a specific enhancement during jury instruction conferences; and formal filings by the

prosecution, such as sentencing memoranda, that expressly state the prosecution’s intent

to seek a specific enhancement. (Anderson, at pp. 963-964.) Thus, under Vaquera,

18 Anderson, and Houston, actual notice sufficient to overcome any due process concerns

may be given at any time prior to discharge of the jury.8

Given the unique procedural posture of this case, the record discloses that

defendant was afforded actual notice of the prosecution’s intent to seek an enhancement

under section 667.61, subdivision (j), on at least three different occasions, well in

advance of his jury trial. First, the prosecution filed an amended information prior to

defendant’s initial court trial which expressly included the phrase “[15-L, 25-L, LWOP]”

in relation to the one strike allegations.{CT 195} Clearly, this was an express statement

that the prosecution would potentially seek any of the penalties authorized under section

667.61, including an indeterminate sentence of 25 years to life or life without the

possibility of parole. Second, the parties proceeded to try the entire case in a court trial,

after which the prosecution filed a sentencing memorandum expressly seeking the

imposition of the enhancements provided for in section 667.61, subdivision (j), as well as

stating the factual allegations proved at trial in support of the enhancement.{CT 292,

8 This conclusion makes sense in light of the statutory and case authority

recognizing that the trial court may permit the prosecution to amend the information to add an enhancement allegation at any time prior to discharge of the jury without violating due process. (§ 1009; People v. Valladoli (1996) 13 Cal.4th 590, 607 [availability of a continuance to prepare to meet any newly charged allegations undercuts any claim that a late amendment violates due process]; People v. Peyton (2009) 176 Cal.App.4th 642, 650, 656-660 [amendment of information during trial did not violate due process]{Fourth Dist., Div. Two}; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1584 [same]{Fourth Dist., Div. Two]; People v. McCoy (2013) 215 Cal.App.4th 1510, 1531- 1535 [amendment of information immediately prior to opening statement to add one strike law allegations does not violate due process].)

19 294} Third, the trial court actually sentenced defendant pursuant to section 667.61,

subdivision (j). following his initial trial and, upon remand after defendant’s first appeal,

ordered that the matter be retried as to all counts and one strike allegations.{CT 301,

334} Under these circumstances, it cannot be said that defendant was unaware of his

potential sentence exposure such that he was unable to make an informed decision

regarding how to plead or prepare a defense in advance of his second trial in this case.

Additionally, the record discloses at least three occasions during defendant’s jury

trial in which the prosecution reaffirmed its intent to seek the enhanced penalties

provided for in section 667.61, subdivision (j), and the factual basis upon which it was

seeking such an enhancement. During discussion of jury instructions, the prosecutor

expressly stated its view that defendant was subject to a sentence of 25 years to life or life

without the possibility of parole should the prosecution prove the one strike

allegations.9{RT 463} Additionally, the prosecution submitted verdict forms that

expressly required the jury to find that defendant’s victims were under the age of 14 years

in addition to a circumstance specified in section 667.61, subdivisions (d) or (e), in order

9 Specifically, when explaining that the one strike allegations differed from the

instructions for the underlying offense of assault during the course of a burglary, the prosecutor expressly stated his view that under the one strike law, “the legislature has decided that when a defendant completes a forcible sex crime and commits a residential burglary with the intent to commit a sex crime, that that situation in and of itself will be punished either by 25 years to life in prison, or by life without the possibility of parole.”{RT 462-463}

20 to return a true finding on the one strike law allegations.10{CT 430, 432, 434, 439, 442,

444} Finally, the prosecution requested the trial court “correct” its instructions related to

section 667.61 with respect to counts 2, 3, 7, and 9 to specifically direct the jury that it

must prove that the victims were under the age of 14 years in addition to the

circumstances specified in section 667.61, subdivisions (d) or (e), in order to return a true

finding on the one strike allegations.{RT 546, 559-561} Each of these instances occurred

prior to closing argument and prior to submission of the case to the jury. Thus, even

during defendant’s jury trial, he was provided notice that the prosecution continued to

seek the enhanced penalties set forth in section 667.61, subdivision (j), as well as the

factual basis upon which the prosecution sought that enhancement.

In our view, the unique circumstances of this case leave no doubt that the

requirements of due process have been met. Where the record shows that the prosecution

has repeatedly communicated its intent to seek an enhancement, as well as the factual

bases for that enhancement both prior to and during trial, we are satisfied that defendant

“was aware of the sentence the prosecution was seeking at a time when he could have

taken his sentencing exposure into consideration in making key decisions about how to

10 All of the verdict forms related to special circumstance findings were worded

such that the jury was required to find the victim was under the age of 14 years, in addition to finding the existence of a circumstance specified in section 667.61, either subdivisions (d) or (e), in order to return a true finding.{CT 430, 432, 439, 442, 444} The only purpose for requiring such a factual finding in connection with the one strike allegation would be to support an enhanced sentence under section 667.61, subdivision (j), as the age of the victim is not relevant if an enhancement is sought only pursuant to section 667.61, subdivisions (a) or (b). (§ 667.61, subds. (a), (b), (j).)

21 conduct his defense, ‘including whether to plead guilty, how to allocate investigatory

resources, and what strategy to deploy at trial.’ ” (Vaquera, supra, 15 Cal.5th at p. 727.)

Under Vaquera, Anderson, and Houston, defendant was not deprived of due process and

reversal is not required, even if the accusatory pleading’s one strike allegations might be

considered ambiguous.

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.

22 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

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.

23 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

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.11 (§ 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.)

11 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).)

24 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.

In Flores, supra, 75 Cal.App.5th 495, the court 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.”

(Id. at p. 500.)

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

25 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

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

26 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.

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.

27 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].)

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.].)

28 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

“ ‘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

29 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

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

30 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.

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.12

12 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.

31 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.