Filed 11/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B317129
(Super. Ct. No. 18F-08854)
Plaintiff and Respondent, (San Luis Obispo County)
v.
CHRIS LYNN BERDOLL,
Defendant and Appellant.
While this criminal case was on appeal, there was a change
in the law concerning a trial court’s sentencing discretion. We
decide not to remand this case to the trial court.
We rely on article VI, section 13 of the California
Constitution. 1 It sets a standard for appellate courts to follow
Article VI, section 13 of the California Constitution reads:
1
“No judgment shall be set aside, or new trial granted, in any
cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to
any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.”
when reviewing decisions of lower courts. No alleged error here
has resulted in a miscarriage of justice.
This sensible rule prompts us to affirm the trial court’s
imposition of an indicated sentence. We reject a literal reading of
a statute when to do so has no effect and squanders judicial
resources. We also rely on what is inherent in our rendering
judgments, the use of judgment.
Chris Lynn Berdoll appeals from the judgment after
pleading no contest to 24 counts of using a minor to pose to create
media depicting sexual acts (Pen. Code,2 § 311.4, subd. (c); counts
1-24) and one count of possession of matter depicting a minor
engaged in sexual acts (§ 311.11, subd. (a); count 25). The trial
court sentenced him to four years four months in state prison.
Berdoll contends the judgment should be vacated and the matter
remanded for resentencing pursuant to Senate Bill No. 567
(2021-2022 Reg. Sess.). (Stats. 2021, ch. 731, § 1.3.) We conclude
that here, where Berdoll agreed to an indicated sentence after the
court considered the mitigating and aggravating factors in
arriving at its sentence, a remand is not required. We affirm.
FACTUAL AND PROCEDURAL HISTORY3
Berdoll taught fifth grade in Atascadero. In August 2018, a
student told police that she saw Berdoll hold his cell phone under
another student’s desk and take pictures or videos.
Police confiscated Berdoll’s cell phone. On it were multiple
pictures and videos of Berdoll’s students. Some of the pictures
had students’ faces superimposed onto the naked bodies of other
2 Statutory references are to the Penal Code.
3 Because Berdoll waived his preliminary hearing and did
not have a trial, we take the facts from pretrial hearings and
pleadings.
2
children. Others had images of Berdoll superimposed in a way
that made it appear that he was engaged in sexual acts with the
students.
Prosecutors charged Berdoll with 24 counts of using a
minor to pose to create media depicting sexual acts and one count
of possession of matter depicting a minor engaged in sexual acts.
At the plea hearing, and over the People’s objection, the trial
court said that it intended to sentence Berdoll to the upper term
of three years on count 1 and run all other sentences concurrently
if he pleaded guilty or no contest. It noted two aggravating
circumstances supporting its indicated sentence: the crimes
involved young, prepubescent girls, and Berdoll carried out his
crimes in a planned, sophisticated manner by “directing the
victims to move in a certain way in order to capture some of [his
photographs].” Berdoll pleaded no contest to all charges.
At sentencing, the trial court said that it was revising its
previously indicated sentence upward from three years to four
years four months. Although the court noted Berdoll was eligible
for probation, it concluded probation was inappropriate–and a
longer prison sentence was justified–because his crimes
represented a “massive violation of . . . trust” that persisted for
“such a long time.” And as detailed in the probation report–
which the court was required to consider (People v. Flowers
(2022) 81 Cal.App.5th 680, 683)–the crimes involved the
exploitation of young, vulnerable children who had a “reasonable
expectation of safety” in the classroom. They also “didn’t have a
choice in spending time and being left alone with [Berdoll].” In
revising its indicated sentence, the court also considered Berdoll’s
lack of criminal history, that his conduct did not involve physical
touching, and that he had begun therapy to begin to deal with his
sexual urges. Ultimately, the court concluded that a longer
3
prison sentence was appropriate because “here we have young
children and we have a teacher doing it.”
Berdoll declined to withdraw his plea, and the trial court
imposed the revised indicated sentence: the upper term of three
years on count 1, and consecutive eight-month terms on counts 9
and 25. The court imposed concurrent, upper-term sentences on
all remaining counts.
DISCUSSION
Berdoll notes that after he was sentenced, Senate Bill No.
567 became law. He claims because of the new law this case
must be remanded for resentencing.
“Senate Bill No. 567 (2021-2022 Reg. Sess.) amended
section 1170, subdivision (b), making the middle term of
imprisonment the presumptive sentence.” (People v. Flores
(2022) 75 Cal.App.5th 495, 500.) “A trial court may 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.” (Ibid.) “These
amendments apply retroactively to [Berdoll] because his
conviction was not final when this legislation took effect.” (Ibid.)
Here the trial court found there were aggravating
circumstances that required the aggregate upper term sentence it
imposed. As the People note, “[T]here was undisputed evidence
that appellant was a grade-school teacher who abused his
position of trust by surreptitiously taking photographs and videos
of his students and manipulating those images in pornographic
ways. This behavior persisted over years and involved numerous
students.”
In Flores, the issue was whether Senate Bill No. 567
required a remand for resentencing where the trial court, before
4
its enactment, had imposed an upper term for a corporal injury
offense based on its findings of aggravating circumstances
following the defendant’s conviction after a jury trial. The
appellate court concluded Senate Bill No. 567 was retroactive,
but it rejected the claim that a remand for resentencing was
required because of the new changes enacted by Senate Bill No.
567. It said, “To the extent these aggravating circumstances
were not stipulated to or found true beyond a reasonable doubt,
any error in taking them into consideration is harmless.” (People
v. Flores, supra, 75 Cal.App.5th at p. 500.) “ ‘[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. (People v. Sandoval [2007] 41 Cal.4th [825,]
839; . . .)” (Ibid.)
The Flores court concluded, “On this record we are
satisfied, beyond a reasonable doubt, the jury would have found
true at least one aggravating circumstance.” (People v. Flores,
supra, 75 Cal.App.5th at p. 501.) “Thus, remand for resentencing
on this issue is unnecessary.” (Ibid.)
Here the contested issues were not tried by a jury and the
sentencing issues were determined by the trial judge.
Nevertheless, we conclude that any jury would have found at
least one of the aggravating factors here beyond a reasonable
doubt just as the trial court did. Berdoll pled no contest to the
charges. The trial court was the exclusive trier of fact. Moreover,
Berdoll stipulated to a factual basis for the plea “based on the
police reports.” Those reports contained the uncontradicted
foundation for the findings of aggravating sentencing factors.
The trial court, exercising its sentencing discretion, declared it
5
was imposing the aggregate sentence because the aggravating
factors outweighed the mitigating factors.
The aggravating sentencing factors and findings were
amply supported by this record and clearly articulated by the
trial court. There is no valid claim that these factors did not
involve patently reprehensible conduct to exploit young
vulnerable children under Berdoll’s control. Moreover, there is
no doubt from this record as to why the trial court selected the
sentence it imposed.
People v. Mitchell (2022) 83 Cal.App.5th 1051 also supplies
support for our position. Defendant entered into a stipulated
plea agreement to a series of charges including reckless driving
while evading a police officer. Mitchell points out that “[i]n the
case where there is a stipulated plea like here, there is no
occasion for the trial court to find any aggravating facts in order
to justify the imposition of an upper term at sentencing.” (Id. at
p. 1059.)
“Appellant agreed to a term of six years pursuant to a
stipulated plea and the trial court simply sentenced appellant
according to the terms of the plea agreement. In fact, it was
appellant who offered, as a factual basis for the plea, that she
‘drove recklessly while evading a police officer’ and the trial court
accordingly found that a factual basis existed for the plea. The
trial court therefore did not exercise any discretion under former
section 1170, subdivision (b) in selecting the lower, middle, or
upper term. Further, in entering into the plea, appellant
knowingly waived her rights to both a jury trial and court trial.
Therefore, the concern raised in Cunningham v. California [2007]
549 U.S. [270,] 293, that a defendant's Sixth Amendment rights
are violated when aggravating facts to support an upper term
sentence are not found by a jury beyond a reasonable doubt does
6
not exist here.” (People v. Mitchell, supra, 84 Cal.App.5th at
p. 1059.)
Although here Berdoll’s plea of guilty was not based on a
stipulated plea agreement, his plea of guilty to the judge’s
indicated sentence bears similarity. The trial court increased its
original indicated sentence because it found the aggravating
factors predominated over the mitigating factors.
Logic and common sense lead us to conclude beyond a
reasonable doubt that no jury and no trial court would impose a
more favorable sentence upon remand. To remand would achieve
the same sentencing result and would be a waste of judicial
resources.
The trial court considered the aggravating factors and
acknowledged the mitigating factors. It decided not to impose its
original indicated sentence and to increase the sentence. The
facts did not have to be “proven at trial” because Berdoll,
represented by counsel, agreed to plead guilty to a longer
sentence than originally indicated. The court decided the
aggravating factors outweigh the mitigating factors. It is not for
this court to order the trial court to once again weigh the factors
the trial court already considered. Section 1170, subdivision (b)
should result in a remand to the trial court when the facts
warrant it. They do not here.
Although we think the concurring opinion is unnecessary,
we agree with its reasoning.
7
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
YEGAN, J.
8
BALTODANO, J., Concurring in the judgment:
I concur in the judgment.
Since Senate Bill No. 567 (2021-2022 Reg. Sess.) became
effective earlier this year, Penal Code1 section 1170, subdivision
(b)(2), has required that “circumstances in aggravation of the
crime” supporting a trial court’s imposition of an upper-term
prison sentence be stipulated to by a defendant or be proven
beyond a reasonable doubt. (Stats. 2021, ch. 731, § 1.3.) Unlike
prior versions of section 1170, upper-term sentences can now be
imposed only if the aggravating circumstances justifying them
are proven as required by subdivision (b)(2). (Id., subd. (b)(1).)
Where, as here, a trial court has imposed an upper term by
relying on aggravating circumstances that were not stipulated to
or proven beyond a reasonable doubt, the error is harmless if: (1)
the evidence supporting the relied-upon circumstances is so
“ ‘overwhelming and uncontested’ ” that there is no “ ‘ “evidence
that could rationally lead to a contrary finding,” ’ ” and, if the
reviewing court cannot reach that conclusion, (2) it is
nevertheless reasonably probable that the trial court would have
imposed the upper term without consideration of the unproven
circumstance(s). (People v. Lopez (2022) 78 Cal.App.5th 459, 466-
467 (Lopez).) Stated differently, resentencing is not required if
the record “ ‘ “clearly indicates” ’ ” that the court would impose
the upper term on remand. (Id. at p. 467, alterations omitted.)
There was such a clear indication here. The trial court
relied on three aggravating circumstances when selecting the
upper term on count 1: Berdoll abused a position of trust to
commit his crimes (Cal. Rules of Court, rule 4.421(a)(11)), he
1
Statutory references are to the Penal Code.
carried them out in a manner that indicated planning or
sophistication (id., rule 4.421(a)(8)), and his victims were
particularly vulnerable (id., rule 4.421(a)(3)). The facts
underlying these circumstances were neither stipulated to nor
proven beyond a reasonable doubt as required by section 1170,
subdivision (b)(2). But as he concedes in his briefs, it cannot be
seriously contested that Berdoll abused a position of trust:
Berdoll, a grade-school teacher, surreptitiously took photos and
videos of his students and manipulated the images in
pornographic ways. The trial court considered this the “most
important[]” aggravating circumstance when giving its three-year
indicated sentence. It again cited Berdoll’s “massive violation of
. . . trust” when revising that sentence upward to four years four
months. Given the overriding importance of this circumstance, it
is not reasonably probable that the court would have imposed a
more lenient term on count 1 even without consideration of the
sophistication of Berdoll’s crimes or his victims’ vulnerabilities.2
(Lopez, supra, 78 Cal.App.5th at p. 467.) Remand is unnecessary.
CERTIFIED FOR PUBLICATION.
BALTODANO, J.
2
Since the Attorney General has not argued that remand is
unnecessary because Berdoll stipulated to a factual basis for his
plea or entered an open plea in exchange for an indicated
sentence, I do not rely on these theories in concluding that the
Senate Bill No. 567 error here was harmless. I would wait for a
future case in which the Attorney General presents these
arguments to decide them.
2
Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
______________________________
Mark R. Feeser for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.