Filed 2/10/23 P. v. Sanchez CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C095235
Plaintiff and Respondent, (Super. Ct. No. 19FE001945)
v.
ANGEL PINEDA SANCHEZ,
Defendant and Appellant.
After receiving evidence that defendant Angel Pineda Sanchez sexually abused his
minor daughter, Jane Doe, on multiple occasions, a jury found him guilty of three counts
of oral copulation or sexual penetration of a child 10 years old or younger (Pen. Code,
§ 288.7, subd. (b))1 and 10 counts of lewd acts on a child under 14 (§ 288, subd. (a)). On
appeal, defendant argues that (1) two of the lewd act convictions must be reversed
1 Undesignated statutory references are to the Penal Code.
1
because the trial court improperly allowed the prosecutor to support those charges with
inadmissible hearsay; (2) trial counsel provided ineffective assistance by failing to object
to evidence of uncharged acts of violent nonsexual conduct by defendant; and (3) if we
affirm his convictions, we nevertheless must remand the matter for resentencing in light
of recent changes in California’s sentencing law.
We reject defendant’s first and second claims, but agree with his third claim.
Accordingly, we will affirm the convictions and remand for resentencing.
BACKGROUND
I
Prosecution’s Evidence
A. Doe’s Testimony
1. Sexual Abuse
Born in 2001 and 19 years old when she testified at the 2021 trial, Doe grew up
living with her parents and younger sister at several residences. When she was five years
old, defendant used his fingers to touch Doe’s vagina over her clothing two or three times
a week. Starting when Doe was seven years old, on more than five occasions, defendant
touched her breasts with his hands and mouth. He also made Doe put her mouth on his
penis about three times, forcing her head down with his hand. This happened in the
master bedroom of the family’s home where Doe and her sister slept on the floor at the
foot of their parents’ bed.
At first, Doe did not tell her mother what defendant was doing because defendant
said her mother would get upset. Doe eventually told her mother when she was seven.
Doe’s mother asked if she told anyone at school or any of her teachers and when Doe
said she had not, her mother replied, “[O]kay. Don’t tell anyone.” Doe’s parents
subsequently discussed Doe’s revelation and defendant stopped the sexual abuse of Doe.
Though confused by her mother’s command not to tell anyone, Doe trusted her mother
2
and complied, fearing she and her sister would be taken away by Child Protective
Services (CPS).
Defendant first had sexual intercourse with Doe around six years later, in
December 2014, when she was 13 years old. Doe was in eighth grade and dating a
classmate. Defendant found out about the relationship and made Doe break up with her
boyfriend. He warned her he was “going to have to check” her because he believed she
was having sex with her boyfriend.
Some time later, defendant made Doe get in his SUV with him and drove to a
local motel. Defendant parked in front of a room, took Doe straight inside using a key he
already had, and locked the room door behind her. Defendant pushed Doe toward a bed
telling her, “I told you, I was going to check you.” Doe screamed, kicked, and told
defendant to stop. But defendant took off her pants, put his fingers inside her vagina,
then unzipped his pants and put his penis inside her vagina while she was on her back.
Because this happened so close to Valentine’s Day and her younger cousin’s birthday,
Doe recalled the date this happened: February 17, 2015. Afterward defendant took Doe
to a nearby drugstore, bought yeast infection medication, and told her to use the
medication at home because she had an infection.
Later, defendant took Doe to a Planned Parenthood location. Doe received a
morning after pill, birth control pills, and condoms. Defendant told Doe to take the
morning after pill.
Doe remembered clearly a later incident when defendant had sexual intercourse
with her on the floor of the family’s master bedroom when she was 13 years old. Doe
was sleeping and awoke to find defendant removing her pants. Defendant then went into
the bathroom, came back with lubricant, and put his penis inside Doe’s vagina.
Doe’s recollection was “really faint” regarding other incidents of sexual
intercourse with her father in the master bedroom. “I don’t want to give the wrong
information,” Doe explained to the prosecutor when testifying.
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Asked if she recalled talking to police about a second act of sexual intercourse in
the master bedroom, Doe said she did not. Over defense counsel’s objection, the trial
court allowed the prosecutor to show Doe a statement she made to police in December
2018. After reading the statement, Doe still did not recall the details but she remembered
giving the statement to a Detective Lamb, had a clearer memory of the details when she
made the statement (nearly three years before the trial), and was telling the truth when
she made the statement.
Another incident Doe remembered occurred when she was 13 years old when
defendant touched her sexually inside his SUV near the family’s home. This alleged act
served as the factual basis for count thirteen. “He wanted me to drive and I kept on
telling him I didn’t want to drive and then he got mad and started trying to -- well, not
trying, he did touch me, and I just don’t remember.” The prosecutor asked if Doe
remembered anything else, and Doe replied: “I don’t remember the details. I’m trying so
hard to forget everything. It’s been so many years.”
Doe remembered speaking truthfully to Detective Lamb about the event, which
was fresher in her mind when she made earlier statements. But reviewing those
statements on the witness stand did not help her remember the details. All Doe could
recall was defendant “touching [her] and getting on top” of her. “It’s just some parts are
blurred to me right now,” Doe explained.
Though defendant never threatened Doe explicitly, Doe did not resist the sexual
abuse when she was 13 years old because she was afraid he would hurt her.
In spring 2015, Doe again told her mother what defendant was doing to her.
Doe’s mother said she would talk to defendant, who then stopped sexually abusing Doe.
Concerned for her sister’s well-being, Doe also told her sister about defendant, and
advised her to wrap herself up in a blanket so it would be “really, really tight, and he
wouldn’t be able to put his hands through the blanket to touch” her.
4
One day in 2016, high school officials pulled Doe out of class and told her that her
sister made a comment to a friend, and the friend told a teacher about defendant’s sexual
abuse. Doe denied it, afraid her mother would get in trouble, and that CPS would take
her and her sister away and separate them from each other. But Doe did tell multiple
high school friends about the past abuse, including her friends T. and J. She also told
them she was worried about being separated from her sister if police found out.
One day in July 2016, the summer before Doe’s sophomore year, defendant took
Doe’s phone. Worried defendant would see pictures of her boyfriend on the phone and
try to have sex with her again, Doe ran away from home, eventually finding a place to
stay at J.’s house. When J.’s mother demanded to know why she ran away from home,
Doe told her defendant had sexually abused her. Doe allowed J.’s mother to disclose her
situation to a friend who worked at CPS. That summer, police came to J.’s house, where
Doe was still staying, and Doe spoke with them. Later, police returned and took Doe to a
receiving home.
2. Doe’s Statements of Nonabuse
In addition to her spring 2016 denial to school officials that defendant had
sexually abused her, Doe had denied experiencing any sexual abuse twice before: (1) in
2015, when her father took her to the Planned Parenthood; and (2) in December 2014,
when Doe’s middle school required Doe to visit a mental health facility, in part because
she was harming herself physically. Doe’s mother and defendant were in the room when
she denied any abuse at the mental health facility in December 2014, and defendant was
in a different room of the Planned Parenthood in 2015 when Doe denied any abuse.
Both times, Doe denied being abused because she feared she and her sister would
be taken away by CPS and her mother would get in trouble.
3. Defendant’s Acts of Nonsexual Violence
Around Christmas 2014, defendant grabbed Doe by the hair, “smashed [her] into”
the family Christmas tree, and hit her. On another occasion, Doe, her sister, and her
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mother were playing bingo when defendant came home drunk and complained that no
one had cooked for him. He took off his belt and hit Doe with it. Shortly before Doe ran
away in summer 2016, defendant pointed one of his guns at her and her mother in a
threatening manner.
B. Doe’s Friends and a Friend’s Parent
At trial, Doe’s childhood friends T. and J. testified, as did J.’s mother.
T. befriended Doe in high school, but never went to Doe’s home or met Doe’s
parents. Doe gave T. specific details about sexual things defendant did to her, beginning
when she was around six years old. When Doe asked T. what to do “[a]bout midway
through freshman year,” T. encouraged Doe to tell the police. Doe told T. she was scared
to.
J. met Doe in elementary school, and they reconnected during high school, after
which Doe revealed to J. that when she was in kindergarten her father would “touch her”
and “make her do oral” sex. Doe talked “[a]ll the time” about her fear of getting the
police involved. J. explained Doe “did want something done about her situation, but we
were all also scared about what would . . . happen” if she reported defendant.
In June or July 2016, Doe began living at J.’s house. At some point, J.’s mom
learned about Doe’s situation, and she contacted law enforcement. Law enforcement
came to J.’s house shortly thereafter.
In an August 2016 statement to police, J. said Doe told her defendant sexually
abused her at a hotel. J. did not mention how Doe arrived at the hotel. In a November
2018 statement to police, J. said Doe told her Doe was blindfolded on the way to the
hotel.
J.’s mother testified she remembered Doe staying at her house in summer 2016.
During that time, Doe told J.’s mother that defendant put his fingers and his penis in her
vagina, and put his penis in her mouth. Doe also told J.’s mother defendant had taken her
to a hotel. Though Doe asked her not to, J.’s mother called the police.
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There were times that summer of 2016, J.’s mother explained, when Doe was
asleep and “she would cry out a lot” saying, “[n]o, don’t touch me . . . leave me alone.
And then she would . . . shake all over and wake up” in a sweat.
C. Doe’s Husband
Doe married the boyfriend she was dating in the eighth grade and whom defendant
made her break up with in 2014. He and Doe reconnected in 2018, when they were both
18 years old. Doe did not talk much with him about what defendant did to her but one
time, as they were driving, she pointed out the motel where defendant had sex with her.
Doe’s husband explained at trial that almost every night in her sleep Doe “says,
[n]o, please stop, and then she . . . tries to push something off her.”
D. Detective Lamb
Detective Lindsey Lamb of the Sacramento County Sheriff’s Office testified that a
report prepared by a colleague who handled defendant’s investigation before her noted
that Doe had given the specific date of February 17, 2015, as the date defendant had
sexual intercourse with her at the motel. In 2018, Detective Lamb and Doe went to the
motel. Doe confirmed that was where defendant had sex with her in February 2015, and
after looking at different buildings associated with the motel, Doe identified room
number 14 as the room where it happened.
Later, when Detective Lamb asked the motel to look through its records for
February 17, 2015, a motel employee sent to her a photo text image of People’s exhibit
13, a registration card indicating rental of room number 14 on February 17, 2015. Also
on the registration card was defendant’s name and his family’s home address.
Planned Parenthood records reviewed by Detective Lamb indicated that on a
March 2015 visit, Doe obtained birth control pills, male condoms, and a morning after
pill.
Detective Lamb testified that in December 2018 she recorded an in-person
conversation with Doe, during which Doe told her about two instances when defendant
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had sex with her at the family home. Regarding the second instance, Doe said “her mom
and sister were outside or not present in the room where the incident occurred. This
happened in her [parents’] bedroom.” Doe was asleep on a bed on the floor next to her
parents’ bed, and she woke up with defendant’s penis inside her vagina, and her pants
down at her knees.
Doe also described a time defendant had sexual intercourse with her in a SUV:
“[S]he and her dad were driving around. He was teaching her to drive. They were about
one block from their house . . . . He forcibly placed his penis inside her vagina while
they were inside the car.”
E. Motel Employee
A long-time employee of the motel explained the motel’s process for renting
rooms. An employee fills out a registration form, and then has the renter sign the form.
Information the form captures includes the renter’s driver’s license or other identification,
the number of the room, and the date of the rental. The employee recalled providing
business records to Detective Lamb after she contacted him asking about the motel’s
rental records regarding defendant. The employee confirmed that People’s exhibit 13
was a copy of a registration record for room number 14 on February 17, 2015.
F. Defendant’s Other Acts With a Different 13-year-old Girl
The prosecution’s last witness, D., testified that in 2016, when she was 13 years
old and living in Sacramento with her younger siblings, her mother was dating defendant,
and they all took a trip to Reno. Everyone stayed in the same hotel room that had two
queen beds. D. recalled falling asleep in the room with her siblings after her mom and
defendant left to gamble in the casino. She began to wake up when she felt someone
touching her buttocks and pulling down her pants. When she looked to see who it was,
she saw defendant walking away.
A few weeks later, D. asked her mother to take her to get some food. Her mother
declined, but defendant offered to take her. On the way to a restaurant in defendant’s
8
truck, defendant placed his hand on D.’s thigh and moved his thumb back and forth for
about five or 10 minutes. D. was scared and didn’t say anything. Later, D. told a friend
about defendant. The friend told others. Eventually the police got involved, and D.
spoke with them regarding defendant about one week after the truck incident.
II
Defendant’s Testimony
Defendant said he never touched Doe sexually and did not have sex with her. He
admitted that when Doe was a teenager there was friction and arguing between them
because he prohibited her from wearing makeup and participating in after school
activities, and he did not want her to have a boyfriend. Doe ran away from home more
than once, and defendant called the police because of it.
Defendant admitted he took Doe to the motel but he drove there only because he
had left his phone inside a room he rented earlier that day to be with a prostitute and the
motel was near the drugstore, where Doe asked him to take her to “buy some creams.”
Defendant testified Doe never went inside the motel room.
On cross-examination, defendant insisted there was never a time in the family’s
home that he was alone with Doe. He explained that he and Doe were not that close; they
did talk to each other, but “not a lot.” Defendant insisted that Doe asked him to take her
to the drugstore the day he took her to the motel.
Defendant testified that after he had sex with a prostitute that day, he slept in the
room for a while. When he went home he kept the motel room key and did not check out
because he “didn’t have to check out.” He did return the room key and checked out after
he retrieved his cell phone from the room, on the way to the drugstore with Doe. “It
wasn’t that important” to check out defendant explained, because the deposit he got back
for checking out was only $5.
9
In interviews with police, defendant never mentioned that he rented a motel room,
was with someone else there, and later took Doe there to get his phone on the way to a
drugstore.
Defendant insisted he never did anything sexual with either Doe or D. They both
testified dishonestly, he insisted.
III
Closing Argument, Verdicts, and Sentencing
The prosecutor urged the jury to consider all the evidence that showed Doe’s trial
testimony was truthful, including (1) the motel records (“you don’t just remember the
exact date and the exact motel room for nothing”; Doe “remembered it because that was a
very traumatic day in her life”); (2) Doe’s husband’s testimony regarding Doe’s prior
consistent statements and Doe’s nightmares; (3) the testimony of Doe’s two childhood
friends T. and J. and J.’s mother regarding Doe’s prior consistent statements and
disinclination to contact authorities about defendant; and (4) J.’s mother’s testimony
about Doe’s nightmares in summer 2016.
Defendant’s “explanations for things just didn’t make sense,” the prosecutor
argued. He refused to admit to ever being alone with Doe. “That’s not reasonable.”
Given defendant’s own testimony that he and Doe were not that close, it also did not
make sense that Doe would proactively seek defendant’s help when she had a female
hygiene problem.
Though he spoke to police at length about Doe’s accusations, defendant never told
them he took Doe to a motel before taking her to the drugstore. The prosecutor
continued: “That prostitute story [defendant] told you here on the stand is a boldface lie.
. . . It doesn’t make sense when you look at it with all the evidence. And he has never
said it before. . . . If it happened like he said it happened, that she stays in the car, she
never gets out, he runs in . . ., he runs into the room real quick, then runs to the office, to
get his $5.00 deposit back, and then they leave. That would have been nothing, a blip, on
10
a 13 year old’s radar. No way. There is no way she would have remember[ed] the exact
date and the exact room. . . . That story is a lie. We know what [Doe] said is true.”
Regarding D., the prosecutor argued: “It is not a coincidence that we have
multiple 13 year olds that the defendant is doing sexual things to. . . . The law says, that
if you decide that he committed . . . the acts to [D.], you may conclude that the defendant
was disposed or inclined to commit sexual offenses. And therefore, conclude that he was
likely to commit and did, in fact, commit a charged offense.”
Defense counsel urged the jurors to ask themselves why Doe’s mother and sister
did not testify, as they could have corroborated important aspects of Doe’s testimony.
Counsel emphasized that Doe denied defendant abused her on multiple occasions, and
argued that if defendant had sexually molested Doe, he never would have taken her to
places where she could report it. Counsel argued that the fact that defendant took her to
the mental health clinic and Planned Parenthood was evidence he was not molesting her.
Defense counsel also argued that J.’s recollection that Doe told her she was blindfolded
when defendant took her to the motel was “more consistent with a fabrication than . . . the
truth.”
The jury found defendant guilty on all counts as charged: three counts of oral
copulation or sexual penetration with a child under 10 years of age (§ 288.7, subd. (b);
counts four, six & eight) and 10 counts of lewd acts on a child under the age of 14 (§ 288,
subd. (a); remaining counts).
In October 2021, the trial court sentenced defendant to a determinate term of 20
years, consisting of the principal term of eight years (the upper term) for one of the
section 288, subdivision (a) offenses, and consecutive two-year terms (one-third the
middle term) for each of the remaining nine section 288, subdivision (a) offenses; and an
indeterminate term of 45 years to life, consisting of three consecutive 15-year-to-life
terms for the section 288.7, subdivision (b) offenses consecutive to the determinate term.
Pursuant to section 654, the trial court stayed the sentences for three of the section 288,
11
subdivision (a) offenses (counts three, five & seven) because they concerned conduct that
“mirror[ed] the conduct that gave rise to the convictions” for the three section 288.7,
subdivision (b) offenses.
As for its decision to impose the upper term for one of the section 288, subdivision
(a) offenses, the trial court agreed with the probation report that defendant took advantage
of a position of trust to commit the offense. (See Cal. Rules of Court, rule 4.421(a)(11).)
Accordingly, the trial court found “the relationship between the defendant and the victim
[was] sufficient for giving the upper term.” The trial court observed the prosecutor
“identified further factors that would weigh into” its decision to impose the upper term,
and “adopt[ed] those” factors “as well, . . . although I don’t believe they are necessary.”
Regarding imposition of consecutive sentences, the trial court explained that
because each offense was a “separate event[] . . . each should be dealt with independently
of the other.” Defendant timely appealed.
DISCUSSION
I
Counts Twelve and Thirteen
Defendant contends we must reverse his convictions on counts twelve and thirteen
because the trial court abused its discretion in allowing the prosecutor to introduce
inadmissible hearsay to support the charges. We disagree. 2
A. Additional Background
In closing argument, the prosecutor explained that count twelve concerned the
second time defendant had sexual intercourse with Doe at the family’s home, and count
thirteen concerned the sexual intercourse in defendant’s SUV. Acknowledging that Doe
had “a hard time remembering” details of both incidents, the prosecutor referenced
2 Because we resolve defendant’s claim on the merits, we need not address the People’s
contention that defendant forfeited this claim as to count thirteen only.
12
Detective Lamb’s testimony concerning Doe’s earlier statements regarding the two
incidents.
B. Legal Background
1. Evidence Code Section 1235
Evidence Code section 1235 provides, in relevant part: “Evidence of a statement
made by a witness is not made inadmissible by the hearsay rule if the statement is
inconsistent with his testimony at the hearing.” (Evid. Code, § 1235.) We review a trial
court’s decision to admit a hearsay statement under Evidence Code section 1235 for
abuse of discretion. (People v. Chhoun (2021) 11 Cal.5th 1, 44.)
2. Relevant Case Law
In People v. Thomas (2017) 15 Cal.App.5th 1063 (Thomas), a 25 year old who had
been sexually abused by her father, the defendant, could not remember at trial whether
her father had orally copulated her when she was younger than eight. A detective gave
trial testimony recounting the survivor’s earlier statements to him that the defendant
orally copulated her when she was five, six, and seven years old. The appellate court
rejected a challenge to the propriety of the detective’s trial testimony, holding the
detective’s testimony was properly admitted under Evidence Code section 1235.
(Thomas, at pp. 1066-1067, 1075-1076.)
The court explained the daughter’s trial testimony that she did not recall the
defendant committing the alleged acts against her when she was younger than eight years
old was inconsistent “ ‘in effect’ ” with the earlier dates she previously told the detective.
(Thomas, supra, 15 Cal.App.5th at pp. 1075-1076; id. at p. 1076 [“ ‘ “Inconsistency in
effect, rather than contradiction in express terms, is the test for admitting a witness’[s]
prior statement [citation], and the same principle governs the case of the forgetful
witness” ’ ”].)
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C. Analysis
Defendant contends Thomas was wrongly decided, and distinguishable from the
facts of his case. We are not persuaded.
First, defendant cites no authority disagreeing with Thomas, and our own research
uncovered none. We decline to disagree with an uncontradicted opinion that is over five
years old. (Cf. Arentz v. Blackshere (1967) 248 Cal.App.2d 638, 640 [declining to
disagree with decisions that “stood without contradiction for seven years”]; see also
People v. Lujano (2014) 229 Cal.App.4th 175, 190 [because stability in the law has
value, an appellate court should be inclined to follow other appellate decisions absent
“ ‘ “good reason to disagree” ’ ”].)
Second, Thomas is apt authority for resolving defendant’s claim. Here, 19-year-
old Doe could not recall when testifying whether -- when she was 13 years old --
defendant had sexual intercourse with her at the family’s home and in defendant’s SUV.
Detective Lamb gave testimony recounting statements Doe made nearly three years
before trial that defendant indeed had sex with her on those occasions. “Doe’s testimony
. . . she did not recall defendant [having sex with] her” on those two occasions “was
inconsistent ‘in effect’ ” with what “she previously told” Detective Lamb. (Thomas,
supra, 15 Cal.App.5th at p. 1076.) There was “in effect” an inconsistency between Doe’s
inability to recall at trial the details of the incident and the details about the incident that
she provided to Detective Lamb years prior. Accordingly, this claim fails.
II
Ineffective Assistance of Counsel Claim
Defendant contends trial counsel provided ineffective assistance in failing to
object to Doe’s testimony regarding defendant’s violent nonsexual conduct.
To establish a violation of a criminal defendant’s constitutional right to effective
assistance of counsel, a defendant must show “counsel’s action was, objectively
considered, both deficient under prevailing professional norms and prejudicial.” (People
14
v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S.
668, 687.) “Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.” (Strickland, at p. 700.) Regarding
the prejudice showing, a defendant must show “it is reasonably probable that a more
favorable determination would have resulted in the absence of counsel’s failings.”
(People v. Lewis (1990) 50 Cal.3d 262, 288.)
Here, even setting aside Doe’s testimony of defendant’s violent nonsexual
conduct, the prosecution presented strong evidence defendant sexually abused her. In
addition to Doe’s firsthand accounts, the jury heard from (1) two of Doe’s childhood
friends and a friend’s mother, who all testified that -- years before trial -- Doe revealed to
them defendant sexually abused her but was reluctant to report it; (2) Doe’s husband,
who testified that when they drove by the motel, Doe told him that was where defendant
had sex with her; and (3) the witness D., who testified about defendant touching her
sexually when she was 13 years old. The jury also heard defendant’s implausible
testimony regarding the combination of coincidences that led him to drive with Doe to
room number 14 of the motel on February 17, 2015: (1) though he and Doe were not
close, she asked him to take her to buy some medication for her female hygiene issue; (2)
he agreed, but decided to make a stop at the motel to retrieve his cell phone, which he left
in a room he rented earlier that day to have sex with a prostitute; and (3) he still had the
room key because he neglected to check out before.
Given this testimony, defendant’s claim of ineffective assistance is unpersuasive
because it is not reasonably probable that -- absent the evidence of defendant’s violent
nonsexual conduct -- the jury would have concluded defendant did not sexually abuse
Doe. (Cf. People v. Smith (2011) 198 Cal.App.4th 415, 429-430 [rejecting a claim of
ineffective assistance because it was not reasonably probable the jury would have
concluded the defendant did not commit the relevant offense]; People v. Zambrano
15
(2004) 124 Cal.App.4th 228, 243 [harmless error in light of the defendant’s “patently
unreasonable” testimony].)
III
Sentencing
A. Assembly Bill No. 518
Defendant contends we must remand the matter to permit the trial court to exercise
new sentencing discretion provided by Assembly Bill No. 518 (2021-2022 Reg. Sess.),
which passed while this appeal was pending. (Stats. 2021, ch. 441, § 1.) The People
agree the new law applies here, but contend remand is unnecessary because the trial court
clearly indicated its intent to impose the maximum sentence. We agree with the parties
that Assembly Bill No. 518 applies retroactively to defendant’s nonfinal sentence, and we
agree with defendant that we must remand the matter.
Effective January 1, 2022, “Assembly Bill 518 amended Penal Code section 654,
subdivision (a) to provide, in pertinent part: ‘An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision.’ (Italics added.) Previously, where Penal Code section 654 applied, the
sentencing court was required to impose the sentence that ‘provides for the longest
potential term of imprisonment’ and stay execution of the other term. (Pen. Code, § 654,
former subd. (a).) As amended by Assembly Bill 518, Penal Code section 654 now
provides the trial court with discretion to impose and execute the sentence of either term,
which could result in the trial court imposing and executing the shorter sentence rather
than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Assembly Bill No. 518 applies retroactively to defendant’s nonfinal sentence.
(See People v. Mani, supra, 74 Cal.App.5th at p. 379.)
Defendants “ ‘are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
16
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, [our
Supreme Court has] held that the appropriate remedy is to remand for resentencing unless
the record ‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391.)
At defendant’s 2021 sentencing, the trial court followed the relevant statutory
dictate by staying the shorter sentences on section 288, subdivision (a) offenses because
they concerned conduct that “mirror[ed] the conduct that gave rise to the convictions” for
the three section 288.7, subdivision (b) offenses (counts four, six & eight). The trial
court gave no other reason for selecting the longer terms. The trial court was “unaware
of the scope of its discretionary powers.” (People v. Gutierrez, supra, 58 Cal.4th at p.
1391.) Thus, the appropriate remedy is to remand for resentencing, unless the record
clearly indicates the trial court would have imposed the same sentence “ ‘even if it had
been aware that it had such discretion.’ ” (Ibid.; see People v. Jones (2022) 79
Cal.App.5th 37, 46 [though “not reversing any of [the defendant’s] convictions or ruling
that a portion of his sentence [was] invalid,” the court “conclude[d] the need to apply”
amended sentencing laws created sufficiently changed circumstances to warrant a full
resentencing].) We see no such clear indication.
We agree with defendant that the People’s observation the trial court imposed
consecutive, rather than concurrent, sentences does not clearly indicate the trial court
would have imposed the same sentence had it been aware of its newly granted discretion.
The trial court imposed consecutive sentences because each offense was a “separate
event[]” to be “dealt with independently.” It does not necessarily follow that the trial
court sought to impose the maximum punishment for each “separate event.” We will
remand for resentencing.
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B. Senate Bill No. 567
Defendant further contends his upper term sentence on a section 288, subdivision
(a) offense must be vacated in light of Senate Bill No. 567 (2021-2022 Reg. Sess.). The
People argue any error by the trial court was harmless. Because we are remanding for a
full resentencing, we need not resolve this claim. (See People v. Jones, supra, 79
Cal.App.5th 46 [given the nature of felony sentencing on multiple counts, at a full
resentencing the trial court “should . . . be free to reconsider any other components of the
aggregate sentence it crafted” previously].)
DISPOSITION
Defendant’s convictions are affirmed. The matter is remanded for a full
resentencing.
/s/
BOULWARE EURIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
EARL, J.
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