Filed 11/29/22 P. v. Meredith CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A163555
v.
ALBERT MEREDITH, (Sonoma County Super. Ct.
No. SCR730635)
Defendant and Appellant.
Effective January 1, 2022, Senate Bill No. 567 (2021–2022 Reg. Sess.)
(S.B. 567) and Assembly Bill No. 124 (2021–2022 Reg. Sess.) (A.B. 124)
amended the determinate sentencing law, Penal Code section 1170, in several
fundamental ways. (People v. Flores (2022) 73 Cal.App.5th 1032, 1038
(Flores).) An upper term is now permitted only in certain circumstances, and
a lower term is the presumptive term in other circumstances. (§ 1170, subd.
(b)(2), (3), and (6).)
Defendant Albert Meredith’s only contention on appeal is that he is
entitled to resentencing under Penal Code section 1170 as amended by S.B.
567 and A.B. 124, and his case should be remanded for that purpose. The
Attorney General agrees the amended sentencing law applies retroactively
but argues remand is unnecessary under the circumstances of this case.
We will remand for resentencing under the amended law.
1
BACKGROUND
In May 2020, the district attorney filed an 11-count information against
defendant. He was charged with three counts of corporal injury to a child,
Jane Doe 1 (Pen. Code,1 § 273d, subd (a)) and one count of child abuse upon
Doe 1 (§ 273a, subd. (a)); all offenses were alleged to have occurred “[o]n or
about June 1, 2019 – August 1, 2019.” As to two of the counts, it was alleged
that defendant personally inflicted great bodily injury on a child under five
years old (§ 12022.7, subd. (d)). Defendant was charged with six counts of
lewd or lascivious act upon Jane Doe 2, a child under 14 years old (§ 288,
subd. (a)), and one count of lewd or lascivious act upon Doe 2 by use of force,
duress, or threat (§ 288, subd. (b)(1)); all offenses against Doe 2 were alleged
to have occurred “[o]n or about January 1, 2019 – August 1, 2019.”
In May 2021, the parties reached a plea agreement. Defendant pleaded
no contest to two counts of corporal injury to Doe 1 (§ 273d, subd. (a); counts 1
and 2) and one count of forcible lewd or lascivious act upon Doe 2 (§ 288,
subd. (b)(1); count 11). He also admitted the two enhancement allegations of
great bodily injury related to counts 1 and 2. Thus, defendant admitted that
he inflicted “cruel and inhuman corporal punishment and injury resulting in
a traumatic condition, to wit: fractured ribs,” as alleged in count 1 of the
information, and that he inflicted great bodily injury, “to wit: a broken leg,”
as alleged in the enhancement for count 2. The parties agreed to a sentence
of no more than 14 years, eight months and no less than 10 years and that
the remaining charges would be dismissed with a Harvey waiver.2
1 Further undesignated statutory references are to the Penal Code.
2“A Harvey waiver permits a trial court to consider facts underlying
dismissed counts in determining the appropriate disposition for the offense of
2
Defense counsel stipulated that the preliminary hearing transcript
provided a factual basis for the plea. Sonoma County Sheriff’s Detective
Michael Sealock, who investigated the criminal matter, and Child Protective
Services supervisor Dara Chanin, who investigated the juvenile dependency
matters related to Doe 1 and Doe 2, testified at the preliminary hearing.
Sealock testified that Doe 1 was defendant’s daughter; she was born in
May 2019 and was three months old when Sealock began the investigation.
Doe 2 was Doe 1’s four-year-old half-sister. Doe 1 and Doe 2 lived with their
mother, the mother’s family (the victims’ grandmother and uncle), and
defendant, who was the mother’s boyfriend at the time.
Sealock learned from medical records and from talking with an
examining doctor that Doe 1 had 11 rib fractures and a right tibia fracture.3
He interviewed the victims’ mother, who told him about a time at the end of
July 2019 when she asked defendant to change Doe 1’s diaper and the baby
let out a blood-curdling cry. She saw defendant squeezing Doe 1, and she
took the baby from him. The mother also told Sealock that defendant bit Doe
1 twice, once on the cheek and once on the arm. She said she confronted
defendant about the bites and he admitted to it. The uncle, who was
developmentally delayed, said that every time defendant held Doe 1, she
cried and that defendant would tickle Doe 2 and he was a little rough. The
grandmother described defendant holding Doe 1 tightly and shoving a bottle
in her mouth when he tried to feed her; she indicated defendant was not to be
trusted with the baby.
which the defendant was convicted.” (People v. Moser (1996) 50 Cal.App.4th
130, 132–133; see People v. Harvey (1979) 25 Cal.3d 754.)
3According to Sealock, the doctor opined that the rib fractures would
have been caused by squeezing and not from falls.
3
Sealock also observed interviews of Doe 2 conducted by a forensic
interviewer. He testified that Doe 2 disclosed that defendant hurt her and
her baby sister. She demonstrated that defendant would hurt her by putting
her hands on her own throat4; she said defendant touched her “no-no spot,”
which she identified on a drawing of little girl as the area where the vagina
was. Doe 2 also said defendant hurt her by putting medicine all over her
body, which made her feel bad.
Chanin interviewed defendant August 30, 2019, for a report to the
juvenile court. Chanin testified that she asked defendant how Doe 1 got all
the fractures, and he responded that he thought it was from him squeezing
her too tight. Defendant said he squeezed the baby’s torso on many occasions
(“a lot”), and he did it because he was “angry and sad.” Defendant also told
Chanin he bit Doe 1 twice. Chanin asked defendant what he thought Doe 2
said to CPS, and defendant responded that he molested her. Chanin testified
that defendant admitted that he touched Doe 2’s clitoris; he said this
happened six times. He admitted that he had his hand on Doe 2’s neck at
least a couple of those times. Defendant said he told Doe 2 that if she told
anyone, he would go to jail.
At the sentencing hearing on August 27, 2021, the trial court sentenced
defendant to 14 years, eight months in state prison. The sentence was
composed of an upper term of 10 years for count 11; 16 months (one-third the
middle term of four years) consecutive for count 1, plus two years (one-third
the upper term of six years) for the great bodily injury enhancement; and 16
months (one-third the middle term) consecutive for count 2. The court struck
the punishment for the great bodily injury enhancement as to count 2.
4Sealock understood from his observation of the interviews that Doe 2
was indicating that defendant choked her but she did not use those words.
4
The trial court explained it imposed the upper terms based on the
circumstances (1) defendant took advantage of a position of trust “with
regard to this familial relationship with each of the two juvenile victims,”
(2) defendant “clearly engaged in violent conduct in the past which indicates
a danger to the community,” and (3) “most notably, the vulnerability of each
of the two victims, Jane Doe 1 and Jane Doe 2, which in and of itself is a
factor warranting the aggravated term if the Court were so inclined to impose
it.”
The court noted the ages of the victims when the offenses occurred and
emphasized “the unbelievable vulnerability of Jane Doe No. 1.” The court
said, “In my years of doing this work, I don’t know that I [have] ever seen a
victim so young. The age of 10 weeks [referring to Jane Doe 1] suffering
those kinds of injuries. It truly defies understanding.” The court described
defendant as “an enigma,” as he had been “nothing but respectful” in court
and was “forthcoming with the probation department and the Department of
Child Protective Services about the case,” but “the facts and circumstances”
of the case were “truly monstrous.” Addressing defendant, the court
explained it was imposing the maximum sentence available under the plea
agreement and stated, “I think you earned every day of it. But I do think it’s
in the interest of justice, and I do think that it provides you with the
opportunity to somehow figure out what went wrong and try to contribute to
the community again. . . .”
DISCUSSION
A. Changes to Section 1170
At the time defendant was sentenced, section 1170 gave the trial court
broad authority to select from the applicable triads of statutory punishments
for the principal term and enhancements that “in the court’s discretion, best
5
serve[d] the interests of justice.” (Former § 1170, subd. (b), as amended by
Stats. 2020, ch. 29, § 15 [“When a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court”].)
Now, however, section 1170, subdivision (b)(2), provides, “The court
may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2), italics added (§ 1170(b)(2)).)5
And section 1170, subdivision (b)(6), now provides that “the court shall
order imposition of the lower term” if the defendant is a “youth” and that fact
“was a contributing factor in the commission of the offense” “unless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice.” (§ 1170, subd. (b)(6).) A “youth” for purposes of the
statute is “any person under 26 years of age on the date the offense was
committed.” (§§ 1016.7, subd. (b); 1170, subd. (b)(6)(B) (§ 1170(b)(6)(B)).)
The parties agree that section 1170 as amended applies retroactively to
defendant’s case. (See Flores, supra, 73 Cal.App.5th at p. 1039 [S.B. 567’s
amendments to section 1170 are “an ameliorative change in the law
applicable to all nonfinal convictions on appeal”].) The usual remedy in this
5 There is an exception to the requirement that facts must be stipulated
or found beyond a reasonable doubt after a trial, but it is not relevant in this
case. (§ 1170, subd. (b)(3) [“the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury”].)
6
circumstance would be to vacate the sentence and remand the matter for the
trial court to resentence under the amended version of section 1170. (E.g., id.
at pp. 1034–1035.)
The Attorney General, however, argues remand is not necessary in this
case because any error (or rather, noncompliance with sections 1170(b)(2) and
1170(b(6)(B), which was not in effect at the time of sentencing) is harmless.
We are not persuaded.
B. Section 1170(b)(6)(B)
It is not disputed defendant qualifies as a “youth” under section
1170(b)(6)(B) given his age at the time of the offenses. The Attorney General
argues the fact that the trial court did not consider defendant’s youth at
sentencing is harmless because the aggravating circumstances outweigh the
mitigating circumstances such that imposition of the lower term would be
contrary to the interests of justice. That may be. Nor did defendant present
evidence or argument about how his age may have been a contributing factor
in the offense. But section 1170(b)(6)(B) did not exist at the time of
sentencing, and under this circumstance, it is appropriate to remand to
provide an opportunity for the parties to address the issue and the trial court
to select a sentence under section 1170 as amended in the first instance.
(Flores, supra, 73 Cal.App.5th at p. 1039.)
Accordingly, we vacate the sentence and remand the matter for a “full
resentencing” under the amended version of section 1170. (People v. Jones
(2022) 79 Cal.App.5th 37, 46 [when a case is remanded for resentencing
under S.B. 567, “a full resentencing is appropriate”]; People v. Buycks (2018)
7
5 Cal.5th 857, 893 [on remand, “the resentencing court has jurisdiction to
modify every aspect of the sentence” under the “ ‘full resentencing rule’ ”].)6
C. Section 1170(b)(2)
None of the aggravating factors relied on by the trial court was either
stipulated to by defendant or found true beyond a reasonable doubt after a
trial as required by section 1170(b)(2). The Attorney General asserts this
does not matter because “a jury would have found true beyond a reasonable
doubt all of the aggravating factors on which the trial court relied,” citing
People v. Lopez (2022) 78 Cal.App.5th 459. We decline to consider this issue
given that we are remanding for resentencing.7
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
to sentence defendant under Penal Code section 1170 as amended.
6 At oral argument, defendant argued for the first time that he may
also be entitled to remand under section 1170, subdivision (b)(6)(A), which
makes the lower term the presumptive term where the defendant’s
experience of “psychological, physical, or childhood trauma” “was a
contributing factor in the commission of the offense.” We decline to consider
this argument, which was not raised in the appellate briefing. (Orange
County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14
Cal.App.5th 343, 377, fn. 12.) Nonetheless, defendant is free to argue the
point on remand under the “ ‘full resentencing rule.’ ” (People v. Buycks,
supra, 5 Cal.5th at p. 893.)
7 Without expressing any opinion regarding the appropriate sentence in
this case, we observe that the sentence the trial court originally imposed of 14
years, 8 months could be configured without running afoul of section
1170(b)(2) by using count 1 as the principal term, imposing all middle terms,
and declining to strike any of the punishments.
8
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, Acting P.J.
_________________________
Van Aken, J.*
A163555, People v. Meredith
* Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
9