Filed 5/27/22 P. v. Lenz CA3
Opinion after recalling remittitur
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE,
Plaintiff and Respondent, C087887
v. (Super. Ct. No. 62147527)
JEREMY JAMES LENZ,
Defendant and Appellant.
A jury convicted defendant Jeremy James Lenz of continuous sexual abuse,
assault, forcible rape, and lewd and lascivious acts upon a child. The trial court
sentenced defendant to an aggregate prison term of 57 years eight months, consisting
of upper terms on counts one to six. In his opening brief on appeal, defendant argued
(1) the trial court erred in admitting evidence of six pornographic video titles defendant
had viewed; (2) the prosecutor committed prejudicial misconduct during closing
argument by arguing facts not in evidence and improperly describing the use of Child
Sexual Abuse Accommodation Syndrome (CSAAS) evidence; and (3) the trial court’s
CALCRIM No. 375 [evidence of uncharged offense] instruction to the jury was
1
erroneous. In supplemental briefing following a recall of the remittitur, defendant
argued (4) Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended Penal Code
section 1170,1 retroactively applies to his case and requires modification of his upper-
term sentences. Although many of defendant’s claims are forfeited or do not establish
prejudicial error, we will remand the matter to the trial court for resentencing in a manner
consistent with the amendments to Penal Code section 1170.
BACKGROUND
K. lived with defendant (her father) and also with her mother, her two younger
brothers Ka. and J., and at some point, an older half-brother. At the beginning of K.’s
seventh-grade school year, defendant touched K.’s breasts, vagina and buttocks under her
clothes. K. was 13 years old. After that incident, every week during K.’s seventh- and
eighth-grade school years, defendant touched K.’s breasts under her clothes and
masturbated while the two lay in K.’s bed. Defendant’s ejaculate went on K.’s leg and
bed. In the middle of her eighth-grade school year, defendant put K.’s hand on his penis.
When K. resisted, defendant got on top of K. and tried to open her mouth and put his
penis in her mouth. Defendant then put his penis in K.’s vagina. K. felt wetness on her
leg and vagina when defendant stopped. At the beginning of K.’s freshman year in high
school, defendant ripped off K.’s clothes, touched K.’s vagina with his hand and forced
his penis in her vagina, hurting her. All of the incidents occurred in K.’s bedroom in the
early morning hours.
In addition, K. testified about incidents of physical abuse by defendant. She said
defendant hit her arm, slapped her face, choked and punched her, and slammed her
against a wall. Defendant also hit and choked Ka. and J.
1 Undesignated statutory references are to the Penal Code.
2
K. told her friend K.M. that defendant was violent and abused her nightly or every
other night when K. was in seventh or eighth grade. When the two were freshmen in
high school, K. told K.M. that defendant did “stuff.” Ultimately, K. told a guidance
counselor that defendant was sexually abusing her. K. told the guidance counselor that
defendant entered her room at night and touched her, and that defendant had sex with her.
K. reported that the abuse started when she was in seventh grade and continued through
the month before her disclosure.
Ka. testified that he did not see defendant do anything sexual to K., but defendant
choked K. one time and defendant grabbed Ka.’s throat, threw him on the ground and hit
him in the ribs and chest once.
Semen and sperm were found on K.’s mattress. The semen matched defendant’s
DNA profile.
A non-acute pediatric sexual abuse evidence exam of K. showed normal results,
meaning K. had no bruises or abrasions and there was no evidence of any healed injury to
her anus and genital areas. A non-acute exam is an exam conducted more than three days
after the alleged abuse. Dr. Angela Vickers testified that 90 percent of non-acute exams
showed normal results and with teenagers, probably 100 percent of the time the alleged
victim would have a normal exam two to three weeks after a sexual contact.
Placer County District Attorney’s Office investigator Christina Woo conducted a
forensic examination of defendant’s cell phone. The cell phone’s memory allowed Woo
to obtain data only from the three-month period prior to her examination. Woo testified
that defendant’s cell phone was used to access 179 videos from a pornography website
called xnxx.com. That website displayed thumbnails or still images with titles under
them and a user clicked on a thumbnail to watch a video. Of the 179 videos accessed on
defendant’s cell phone, about 46 related to family-related sex, 29 mentioned the words
“teen” or “young,” and about 10 related to father/stepfather and daughter/stepdaughter
sex. Woo watched the beginning of those 10 videos and said they showed persons
3
playing the roles of a father/stepfather and a daughter/stepdaughter. None of the videos
depicted child pornography and none of the videos were played at the trial.
Dr. Anthony Urquiza testified as an expert on CSAAS. He explained that CSAAS
was not used to opine whether a child had actually been molested and he was not
testifying about whether someone had been sexually abused or not. Rather, the purpose
of CSAAS was to educate the jury about what commonly occurred when a child was
molested. Dr. Urquiza discussed common myths about child sexual abuse, including that
a child disclosed right away or disclosed in a clear and logical manner.
Defendant testified at the trial. He denied having sex with K., grabbing her
buttocks or vagina, masturbating around her when she was in bed, forcing her to
masturbate him or have oral sex with him or ever doing anything sexual to her. He
denied ever choking, punching or slapping K. or throwing her against a wall. He also
denied choking or punching Ka.
Defendant denied ever masturbating on K.’s bed. He said he masturbated in the
bathroom while watching pornography on his cell phone, and on about eight or nine
occasions, he took a nap on K.’s bed after masturbating. According to defendant, the
semen on K.’s mattress must have been his post ejaculation. However, defendant told a
detective there was no reason his semen would be on K.’s mattress and did not report that
he took a nap on K.’s bed after masturbating in the bathroom.
Defendant admitted going on the xnxx.com website at least twice a week to watch
pornography on his cell phone. He said he picked the videos he watched based on
whether the picture of the girl was pretty or hot, and did not look at the titles of the
videos. He denied searching for videos that featured teens, daughters or incest. He
explained that the videos that said “daddy/daughter” did not involve a father and
daughter; they showed an older man with a younger girl. But he denied having a fetish
about sex between an older man and a younger girl.
4
The jury convicted defendant of continuous sexual abuse of K. when she was in
seventh grade (§ 288.5, subd. (a) -- count one), assault with intent to commit a violation
of section 288, subdivision (c) (§ 220, subd. (a)(2) -- counts two (eighth grade when he
attempted to put K.’s hand on his penis), three (eighth grade when he attempted to put
K’s mouth on his penis) and five (ninth grade when he ripped off K.’s clothes with the
intent of committing a violation of section 288)), forcible rape (§ 261, subd. (a)(2) --
count four) and lewd and lascivious acts upon the body of K. with the intent of arousing,
appealing to and gratifying the lust, passions and sexual desires of defendant, who was at
least 10 years older than K. (§ 288, subd. (c)(1) -- counts six (ninth grade when defendant
touched K.’s vagina) and seven (ninth grade when defendant had sex with K.)). The trial
court imposed an aggregate sentence of 57 years eight months in prison.
DISCUSSION
I
Defendant contends the trial court erred in admitting evidence of six pornographic
video titles defendant had viewed.
A
We begin with some additional background information. The People filed an in
limine motion, pursuant to Evidence Code section 1101, subdivision (b), to admit
evidence of the titles of 46 pornographic videos that defendant watched during the three-
month period prior to his arrest for the charged offenses, when defendant was allegedly
molesting and raping his daughter. The prosecutor argued that the evidence was
admissible to show intent, motive and absence of mistake. With regard to intent, the
prosecutor urged that the titles of the videos tended to show that when he committed the
charged offenses defendant intended to arouse, appeal to and gratify his own lust,
passions and sexual desires. The prosecutor sought to admit only the titles of the videos
and did not seek to play the videos at trial or have a witness describe the content of the
videos.
5
Defendant moved in limine to exclude evidence of father-daughter pornography
on the grounds that such evidence was irrelevant, there was no evidence linking the
watching of legal pornography to the charged acts, the evidence was improper propensity
evidence, and it was inadmissible under Evidence Code section 352. Defendant’s trial
counsel argued that the videos were from lawful websites and did not contain child
pornography. He said showing the jury the titles of the videos would be prejudicial
because the jury would assume the actor was a stepfather and the actress was his
daughter. He said, “there’s all these things that are showing the idea that these are
potentially real people.” He argued that the jury should watch the videos to understand
that “it’s just pornography where it’s maybe a younger person and an older person in a
fake scenario with all lawful performers doing lawful pornography;” but before videos
were played at the trial, the trial judge had to review the videos to decide whether it was
proper to admit the videos. Defendant’s trial counsel said the jury should watch the
videos “because the titles themselves are descriptive of something that sounds worse than
what the videos might be. It’s -- it’s not like these videos are acted-out scenes in the
sense of everybody has got a role and they have got to develop character. It’s just porn,
people doing porn, and I think the titles actually make it seem worse.”
The People agreed the videos were legal pornography and did not constitute child
pornography. The prosecutor said the girls in the videos were dressed like and appeared
to be minors. She argued that admitting the titles of the videos would be less prejudicial
than showing the videos. With regard to intent, the prosecutor pointed out that defendant
watched the videos at the time the charged offenses were occurring and the charged
offenses were specific intent crimes. The prosecutor asked the trial court to admit the
titles of 10 videos specifically related to father-daughter incest pornography.
The trial court granted the People’s motion in part. It ruled evidence that
defendant accessed pornographic videos with titles indicating sexual acts between fathers
and daughters, during the same time period of the alleged molestations, was highly
6
relevant to show defendant’s “sexual intent” but was inadmissible to prove motive or
absence of mistake. It further concluded that the probative value of the evidence was not
substantially outweighed by the risk of undue prejudice. The trial court admitted
evidence that defendant accessed videos titled (1) “Daddy fuck me hard in my innocent
ass;” (2) “Daughter fucks daddy for father’s day;” (3) “Dad fucks daughter after party
insanely hot tomi taylor;” (4) “Cock ninja studios grounded daughter gives dad a
blowjob;” (5) “Step dad fucks daughter and her friends;” and (6) “Hey man please don’t
fuck my daughter ok.” The trial court excluded evidence of other videos.
B
Citing Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 [152 L.Ed.2d 403]
and Dawson v. Delaware (1992) 503 U.S. 159 [117 L.Ed.2d 309], defendant now argues
the admission of the video-title evidence violated his First Amendment right to free
speech. But defendant did not preserve his First Amendment claim for review because
he did not raise it in the trial court. (People v. McCurdy (2014) 59 Cal.4th 1063, 1104,
fn. 14 (McCurdy); People v. Memro (1995) 11 Cal.4th 786, 865 (Memro), abrogated on a
different ground in People v. McKinnon (2011) 52 Cal.4th 610, 639, fn. 18.)
C
Defendant further claims the video-title evidence was erroneously admitted
because intent was undisputed and the evidence was not sufficiently similar to the
charged offenses to prove intent.
Evidence of a defendant’s character or character trait is inadmissible to prove his
or her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) However,
evidence that the defendant committed an uncharged act may be admitted when relevant
to prove a material fact at issue in the case, such as intent. (Evid. Code, § 1101,
subd. (b); People v. Fayed (2020) 9 Cal.5th 147, 191.) The admissibility of uncharged
act evidence depends on (1) the materiality of the facts sought to be proved, (2) the
tendency of the uncharged acts to prove those facts, and (3) the existence of any rule or
7
policy requiring exclusion of the evidence, such as Evidence Code section 352. (People
v. Sanchez (2016) 63 Cal.4th 411, 452; People v. Leon (2015) 61 Cal.4th 569, 597-598
(Leon).) We review the trial court’s admission of evidence under Evidence Code
section 1101, subdivision (b) for abuse of discretion. (People v. Thompson (2016)
1 Cal.5th 1043, 1114.)
The People had to prove that defendant acted with the intent of “arousing,
appealing to, or gratifying the lust, passions, or sexual desires” of defendant or K.
(§ 288, subd. (a), see id. at subd. (c).) Defendant’s not-guilty plea placed all of the
elements of the charged offenses, including his intent, in dispute. (People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 822; People v. Cowan (2010) 50 Cal.4th 401, 476.)
Defendant does not provide us with a citation to the record showing that his intent was
not at issue. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14; Miller v. Superior
Court (2002) 101 Cal.App.4th 728, 743.)
“The relevance [of uncharged act evidence] depends, in part, on whether the act is
sufficiently similar to the current charges to support a rational inference of intent . . . .”
(Leon, supra, 61 Cal.4th at p. 598.) “[T]he ‘least degree of similarity (between the
uncharged act and the charged offense) is required in order to prove intent.’ ” (People v.
Molano (2019) 7 Cal.5th 620, 665.) Moreover, evidence that a defendant possessed or
accessed sexually explicit material has been found relevant to the defendant’s intent in
cases involving sexual offenses. (See Memro, supra, 11 Cal.4th at pp. 811, 814, 864-
865; McCurdy, supra, 59 Cal.4th at pp. 1100, 1102; People v. Avila (2014) 59 Cal.4th
496, 499, 503, 518-519 (Avila); see also People v. Fulcher (2006) 136 Cal.App.4th 41,
45, 57-58; People v. Yovanov (1999) 69 Cal.App.4th 392, 396, 404-405; United States v.
Curtin (9th Cir. 2007) 489 F.3d 935, 938-939, 948-950 (Curtin).)
Here, the trial court did not abuse its discretion in finding that the challenged
videos were probative of defendant’s intent when he committed the charged acts upon
8
his daughter. (Memro, supra, 11 Cal.4th at pp. 864-865; McCurdy, supra, 59 Cal.4th
at pp. 1100, 1102; Avila, supra, 59 Cal.4th at pp. 518-519.)
D
Defendant next argues the video-title evidence was inadmissible under Evidence
Code section 352 because it was cumulative, had limited (if any) probative value to prove
intent, and was outweighed by its highly prejudicial effect. We disagree. The evidence
was clearly probative as to defendant’s intent, there is no indication it caused confusion
or misled the jury, and it was not unduly prejudicial in light of the charged conduct.
Additionally, the trial court instructed the jury that it could consider the pornography
evidence only for the purpose of determining whether defendant acted with the intent to
arouse, appeal to or gratify his lust, passions or sexual desires. (Leon, supra, 61 Cal.4th
at pp. 599-600.) The trial court told the jury the pornography evidence by itself was
insufficient to prove that defendant was guilty of the charged crimes and the People had
to prove the charged offenses beyond a reasonable doubt. We presume the jurors
followed the trial court’s instructions and did not consider the pornography evidence for
an improper purpose. (People v. Scott (2015) 61 Cal.4th 363, 399; McCurdy, supra,
59 Cal.4th at p. 1096.) The prosecutor’s closing argument remarks about the
pornography evidence were consistent with the trial court’s instruction on the limited use
of that evidence. In any event, based on the strong evidence of guilt in this case,
including the evidence of defendant’s semen on K.’s bed and the other corroborating
evidence, it is not reasonably probable that defendant would have received a more
favorable outcome absent the admission of the pornography evidence. (See McCurdy,
at p. 1103.)
E
In addition, defendant argues the trial court erred in not reviewing the six videos
whose titles it admitted into evidence for purposes of determining whether the probative
9
value of the video-title evidence substantially outweighed any prejudice in its admission.
There was no error.
The People did not propose to show the videos and the videos were not shown at
the trial. The prosecutor sought to admit only the titles of certain videos and the record
indicates the trial court reviewed those titles in making its ruling.
Defendant’s trial counsel was concerned that the jury might think the videos
depicted actual fathers and daughters, as opposed to “a fake scenario.” He argued that
the jury should watch the videos to understand it was “just porn” because the titles were
“descriptive of something that sounds worse than what the videos might be.” But he did
not claim that any of the titles the prosecutor sought to admit did not accurately describe
the “fake scenario” in the video. And he did not ask the trial court to watch any video to
determine the accuracy of its title.
Curtin, supra, 489 F.3d 935, a case upon which defendant relies, is inapposite
because in that case the trial court did not read all of the lewd stories it subsequently
admitted into evidence. (Id. at p. 956-958.) Here, however, the prosecutor presented the
trial court with the titles of 10 pornographic videos, and nothing in the record indicates
the trial court did not review those video titles before ruling on their admissibility.
II
Defendant next claims the prosecutor committed prejudicial misconduct during
closing argument by (A) arguing facts not in evidence, and (B) improperly describing the
use of CSAAS evidence. We address each contention in turn.
A
During the prosecutor’s closing argument, the prosecutor argued, “How about the
pornography? Oh, they’re just random titles. They just popped up. Right? He was just
looking for pretty girls. Interestingly enough, pornography sites don’t always have
pictures of people’s faces on them. They just have pictures of genitalia.” Defendant
appears to argue that the last two sentences involved facts not in evidence.
10
To preserve a claim of prosecutorial misconduct for appeal, defendant must make
a timely objection at trial on the ground raised on appeal and request that the jury be
admonished to disregard the impropriety. (People v. Covarrubias (2016) 1 Cal.5th 838,
894 (Covarrubias).) “ ‘The purpose of the rule requiring the making of timely objections
is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the
jury, instruct counsel and forestall the accumulation of prejudice by repeating
improprieties, thus avoiding the necessity of a retrial.’ ” (People v. Brown (2003)
31 Cal.4th 518, 553.) Although the failure to timely object and/or request an admonition
will be excused if either would be futile, if an admonition would not cure the harm
caused by the misconduct or if the trial court immediately overrules an objection and as a
consequence the defendant has no opportunity to request an admonition, a defendant
claiming that an excuse applies must find support for the exception in the record. (People
v. Panah (2005) 35 Cal.4th 395, 462 (Panah); People v. Hill (1998) 17 Cal.4th 800, 820-
821; see People v. Williams (1997) 16 Cal.4th 153, 255.)
Defendant did not object to the prosecutor’s remark that he challenges on appeal
nor request an admonition. And he fails to demonstrate that any of the exceptions apply.
His claim of prosecutorial misconduct is, thus, forfeited. (People v. Riggs (2008)
44 Cal.4th 248, 298 (Riggs); Panah, supra, 35 Cal.4th at p. 462.)
Defendant says his claim is cognizable even though he did not object in the trial
court because his constitutional rights are implicated. But even if defendant had not
forfeited his claim, the prosecutor’s brief remark was not prejudicial. (People v. Perez
(2018) 4 Cal.5th 421, 451 [the defendant must demonstrate that the prosecutor’s
statement caused prejudice]; People v. Bolton (1979) 23 Cal.3d 208, 214 [in the absence
of prejudice to the fairness of a trial, prosecutorial misconduct does not require reversal].)
The evidence undermining defendant’s credibility was compelling, including defendant’s
semen on K.’s mattress and the other evidence corroborating K.’s testimony. In addition,
defendant’s trial counsel pointed out to the jury in his closing statement that there was no
11
evidence that some porn sites did not show pictures and only showed genitalia. He
reminded the jury that the only evidence regarding pornography came from Woo and
defendant and there was no evidence about images of genitalia. The prosecutor did not
mention her erroneous assertion in her rebuttal statement. Further, the trial court
instructed the jury that it must decide what the facts were based only on the evidence.
“[A]rguments of counsel ‘generally carry less weight with a jury than do instructions
from the court. The former are usually billed in advance to the jury as matters of
argument, not evidence [citation], and are likely viewed as the statements of advocates;
the latter, we have often recognized, are viewed as definitive and binding statements of
the law.’ ” (People v. Mendoza (2007) 42 Cal.4th 686, 703.)
We are convinced from our review of the record that the error committed by the
prosecutor was harmless under any standard. (People v. Crew (2003) 31 Cal.4th 822, 839
[considering brief nature of the prosecutor’s misstatement, the evidence against the
defendant and the trial court’s cautionary instruction in finding no possible prejudice].)
B
Defendant also contends the prosecutor improperly described the use of CSAAS
evidence.
In her rebuttal statement to the jury, the prosecutor argued the jury could tell K.
was truthful because when K. testified to the crimes, she did not know that her version of
events would be corroborated in so many ways. Among other things, the prosecutor said,
“[K.] never knew about Dr. Urquiza. She never knew that there was this man out there
who can explain common behavior patterns of people that have been molested.”
Defendant’s trial counsel did not object to the prosecutor’s statements and does
not demonstrate an exception to the rule requiring timely objection and a request for an
admonition. A ritual incantation that an admonition would not have cured the harm
caused by the prosecutor’s misconduct is not enough. (Panah, supra, 35 Cal.4th at
p. 462.) Consequently, defendant’s claim of prosecutorial misconduct is forfeited.
12
(Riggs, supra, 44 Cal.4th at p. 298; Panah, at p. 462.) But defendant’s claim lacks merit
in any event. The prosecutor did not say that Dr. Urquiza’s testimony proved that K. had
been molested. The prosecutor’s remarks were consistent with the trial court’s
instruction to the jury that the jury may consider Dr. Urquiza’s testimony about CSAAS
in evaluating K.’s credibility. CSAAS testimony is admissible to rehabilitate a witness’s
credibility when, as here, the defendant suggested that the witness’s conduct was
inconsistent with her claim of sex abuse. (People v. Perez (2010) 182 Cal.App.4th 231,
245; People v. Bowker (1988) 203 Cal.App.3d 385, 394.) The trial court told the jury
that Dr. Urquiza’s testimony was not evidence that defendant committed any of the
charged offenses. Defendant does not challenge the trial court’s instruction regarding the
use of Dr. Urquiza’s testimony.
“ ‘In evaluating a claim of prejudicial misconduct based upon a prosecutor’s
comments to the jury, we decide whether there is a reasonable possibility that the jury
construed or applied the prosecutor’s comments in an objectionable manner.’ ” (People
v. Valdez (2004) 32 Cal.4th 73, 132-133.) We consider the challenged comment in the
context of the argument as a whole and “ ‘ “do not lightly infer” that the jury drew the
most damaging rather than the least damaging meaning from the prosecutor’s
statements.’ ” (Covarrubias, supra, 1 Cal.5th at p. 894.) Having done so, we conclude
that the prosecutor’s comment about Dr. Urquiza’s testimony was not misconduct.
III
Defendant further argues the trial court’s CALCRIM No. 375 [evidence of
uncharged offense] instruction to the jury was erroneous.
When uncharged act evidence is admitted under Evidence Code section 1101,
subdivision (b), upon request, the trial court must instruct the jury on the limited purpose
of considering that evidence. (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1177.)
Here, the trial court instructed the jury pursuant to CALCRIM No. 375 as follows: “The
People presented evidence of other behavior by the defendant that was not charged in this
13
case, viewing pornography related to incest. You may consider this evidence only if the
People have proved by a preponderance of the evidence that the defendant, in fact,
committed the act. [¶] Proof by a preponderance of the evidence is a different burden of
proof than proof beyond a reasonable doubt. A fact is proved by preponderance of the
evidence if you conclude that it is more likely than not that the fact is true. If the People
have not met this burden, you must disregard this evidence entirely. If you decide that
the defendant committed the act, you may but are not required to consider that evidence
for the limited purpose of deciding whether the defendant acted with the intent to arouse,
appeal to or gratify the lust, passions or sexual desires for himself. [¶] In evaluating this
evidence, consider the similarity or lack of similarity between the uncharged act and the
charged offenses. Do not consider this evidence for any other purpose except for the
limited purpose -- purpose of intent. [¶] If you conclude that the defendant committed
the act, that conclusion is only one factor to consider along with all the other evidence. It
is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The
People must still prove every charge beyond a reasonable doubt.”
Defendant did not object to the CALCRIM No. 375 instruction nor request any
modification to the instruction. Accordingly, the Attorney General asserts that
defendant’s instructional error claims are forfeited. As a general rule, failure to object
to an instruction at trial forfeits the issue on appeal. (People v. Campbell (2020)
51 Cal.App.5th 463, 498 (Campbell).)
Anticipating the Attorney General’s claim of forfeiture, defendant summarily
asserts that his claims of instructional error are cognizable. The rule of forfeiture does
not apply if the instruction affected the defendant’s substantial rights. (§ 1259;
Campbell, supra, 51 Cal.App.5th at p. 499.) A “[d]efendant’s substantial rights are
affected if the instruction results in a miscarriage of justice, making it reasonably
probable that absent the erroneous instruction defendant would have obtained a more
favorable result.” (Campbell, at p. 499.) We reject defendant’s assertion against
14
forfeiture, however, because it was made in a perfunctory manner and without supporting
argument. (People v. Jones (1998) 17 Cal.4th 279, 304.)
IV
In supplemental briefing, defendant contends Senate Bill No. 567 retroactively
applies to his case and requires his sentences on counts one through six to be modified.
Effective January 1, 2022, pursuant to Senate Bill No. 567, when a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, the trial
court must impose a term not exceeding the middle term unless there are circumstances in
aggravation of the crime that justify the imposition of a term exceeding the middle term
and the facts underlying those aggravating circumstances (1) have been stipulated to by
the defendant or (2) have been found true beyond a reasonable doubt at trial by the jury
or by the judge in a court trial or (3) relate to the defendant’s prior convictions and are
based on a certified record of conviction. (§ 1170, subds. (b)(1), (b)(2), (b)(3); Stats.
2021, ch. 731, Legis. Counsel’s Digest.)
Under In re Estrada (1965) 63 Cal.2d 740, “ ‘ “[a]n amendatory statute lessening
punishment is presumed to apply in all cases not yet reduced to final judgment as of the
amendatory statute’s effective date” [citation], unless the enacting body “clearly signals
its intent to make the amendment prospective, by the inclusion of either an express saving
clause or its equivalent.” ’ ” (People v. Lara (2019) 6 Cal.5th 1128, 1134.) A judgment
of conviction is not final for the purpose of determining the retroactive application of a
statutory amendment until the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 305-306;
People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) Nothing in Senate Bill No. 567
suggests a legislative intent that its amendments apply prospectively only, and the parties
correctly agree that defendant is entitled to the benefits of the legislative enactments in
Senate Bill No. 567. (Stats. 2021, ch. 731, §§ 1-3; Flores, at p. 1039.)
15
The trial court imposed upper term sentences on counts one through six. It
considered the following facts in aggravation when it selected the upper term for those
counts: (1) that the crime involved a high degree of cruelty and callousness, (2) K. was
particularly vulnerable, and (3) defendant took advantage of a position of trust. In
mitigation as to counts one through six, the trial court considered that defendant had an
insignificant record of criminal conduct. It recited the trial evidence supporting counts
one through six in selecting the upper-term sentences.
The People do not dispute that the facts underlying the circumstances in
aggravation recited by the trial court were not stipulated to by defendant and were not
found true beyond a reasonable doubt by the jury, as required by the newly amended
section 1170, subdivision (b). But they contend harmless error analysis applies to the
lack of a defense stipulation and jury finding in support of the aggravating circumstances
applied to impose the upper-term sentences and it is clear beyond a reasonable doubt that
the jury would have found all of the aggravating circumstances the trial court relied on to
be true had the jury been asked to make such findings. Defendant argues that harmless
error analysis does not apply but if harmless error analysis applies, the error in imposing
upper terms was not harmless.
Although at least one court has applied a harmless error analysis to a challenge
under Senate Bill No. 567 (People v. Flores (2022) 75 Cal.App.5th 495, 500-501), and it
may seem intuitive in this case that the victim was particularly vulnerable and that
defendant took advantage of a position of trust, we are also mindful of the California
Supreme Court’s caution that some aggravating circumstances described in the rules,
such as whether the victim was particularly vulnerable, require an imprecise comparative
evaluation of the facts. (People v. Sandoval (2007) 41 Cal.4th 825, 840.) Under the
circumstances, we will remand the matter to the trial court for resentencing in a manner
consistent with the amendments to section 1170.
16
DISPOSITION
The matter is remanded to the trial court for resentencing in a manner consistent
with the amendments to section 1170. The judgment is otherwise affirmed.
/S/
MAURO, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
DUARTE, J.
17