People v. Higgins CA5

Filed 3/21/23 P. v. Higgins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F083080
Plaintiff and Respondent,
(Super. Ct. No. PCF378161)
v.

CHARLES CARL HIGGINS, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Stephen
Drew, Judge.*

John Steinberg under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Retired Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
 A jury found Charles Carl Higgins (defendant) guilty of raping, and committing
additional offenses against, a 14-year-old victim. Defendant was 43 years old when the
underlying incident occurred. He was sentenced to a total of 13 years 2 months in prison,
which included the upper term of 11 years for the rape conviction.
Defendant seeks reversal based on the admission of certain evidence at trial and
alleged instructional error. In the alternative, he challenges multiple aspects of his
sentence. The claims of trial error lack merit. Defendant does, however, make valid
arguments based on Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567), which
changed the law governing the imposition of upper term sentencing. We affirm the
convictions but remand the cause for a new sentencing hearing.
FACTUAL AND PROCEDURAL BACKGROUND 1
Defendant was a longtime cohabitant and romantic partner of the victim’s mother.
The victim considered him to be her “step-dad.” On March 23, 2019, the victim reported
to family members and law enforcement that defendant had sexually assaulted her earlier
in the day.
According to a sheriff’s deputy who took her initial statements, the victim “said
that she was at her mom’s house with [defendant] and that she needed some money for
some beauty products and to get money he gave her a list of chores, something she could
choose to get money[,] and one was a massage.” The victim elected to perform the
massage, which involved the use of magnets. “She said she gave him a massage for a

1 The reporter’s transcript contains several abbreviations that were never explained by the
witnesses who used them. On our own motion, we take judicial notice that “DNA” is an
initialism for deoxyribonucleic acid. (Evid. Code, § 452, subds. (g), (h).) The acronym “CART”
is an abbreviation of “Child Abuse Response Team.” (E.g., [as of Mar. 21, 2023].) A similar acronym, “SART,” stands for
“Sexual Assault Response Team.” (People v. Uribe (2008) 162 Cal.App.4th 1457, 1463;
[as of Mar. 21, 2023] [“The Sexual Assault
Response Team (SART) is a community-based team that coordinates the response to victims of
sexual assault”].) We note, however, that a SART nurse in this case testified to her
understanding that “SART stands for … Suspected Sexual Abuse Response Team.”

2.
little while, maybe like ten minutes and then he offered to give her a massage and she
agreed. [¶] And she said while getting a massage she fell asleep and then she woke up to
his fingers in her vagina.” Next, as told to the deputy, defendant took off his pants,
removed the victim’s shorts, and “put his dick in her.” The victim reacted by pushing
him away, running to a bathroom, and locking herself inside.
After speaking to the deputy, the victim was briefly questioned by a detective.
She repeated the same basic allegations. The victim was noted to be “quiet” and
“withdrawn,” and gave only “limited answers” to the detective’s questions.
The detective arranged for the victim to undergo a SART examination that
evening. After making those arrangements, he interrogated defendant. Defendant was
handcuffed and shackled during the custodial interview, which lasted approximately two
hours. Having been arrested after coming out of the shower, he was also barefoot.
Defendant confirmed he had made a list of things the victim could do to earn
money. He disputed the term “massage,” explaining how the task she chose involved
rubbing magnets over parts of his back and shoulder. The “magnet thing” had taken
place on the floor of the victim’s bedroom in the middle of the day, and a six-year-old
relative was napping in the bed while it occurred. Defendant admitted to rubbing
magnets over the victim’s back, but he repeatedly denied any wrongdoing.
The detective told defendant the victim’s boyfriend had already corroborated her
story about locking herself in a bathroom after the assault. The detective alleged the
victim and her boyfriend were videoconferencing over “FaceTime” while she was in the
bathroom, and both had reported that defendant knocked on the door and said something
to the effect of, “‘Hey, let’s talk about what happened.’”
Defendant said the bathroom allegation was partially true. In a vague and
disjointed explanation, he alluded to the victim having confided in him that she and the
boyfriend were sexually active. Defendant had previously told the detective the victim
“said she’s had sex twice with him,” i.e., with her boyfriend. Defendant further alleged

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the victim had shown him a cartoonish video on her phone of a male and female
“humping.” When asked if the victim “came on to [him] in any kind of way,” he
answered “No.”
Other parts of the interview focused on the possible existence of DNA evidence.
The detective first asked, “[W]ould there be any reason as to why we would find any of
your DNA on her clothing, on her body?” Defendant replied, “Probably. There might
have been.” He then gave another vague and incomplete explanation based on having
allegedly masturbated earlier in the day.
When told the victim was “claiming full on sex,” defendant insisted there would
be no corroborative DNA evidence. This line of questioning included the following
exchange:

“[DETECTIVE]: [M]y partner took [the victim] down to … the office,
to the urgent care and that’s where they’re doing the exam, so what if I
were to tell you that he called me to tell me that they did find some DNA
inside of her that … didn’t belong to her?

“[DEFENDANT]: Would you be telling me the truth?

“[DETECTIVE]: Yeah. That’s—I stepped out and I took a phone call.
Right? So I’m asking you that wouldn’t be your DNA?

“[DEFENDANT]: No.

“[DETECTIVE]: But what if it was?

“[DEFENDANT]: It wouldn’t be.

“[DETECTIVE]: But what if it was?

“[DEFENDANT]: If it was?

“[DETECTIVE]: Yeah.

“[DEFENDANT]: Then I—

“[DETECTIVE]: How did it get in there?

“[DEFENDANT]: I’d be guilty then. But it isn’t.”

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The custodial interview ended with defendant maintaining his innocence.
During the victim’s SART examination, the forensic examiner obtained verbal
responses to standardized questions. According to the examiner (the “SART nurse”), the
victim said defendant “took her clothes off and proceeded to have sex with her for about
[five] minutes.” The victim answered no to a series of questions regarding the “methods”
used by the perpetrator, including “any grabbing, holding,” or “physical hits.” But she
did make several new allegations, i.e., ones not previously documented by law
enforcement. The victim claimed defendant had sucked on her breasts, “spit on her
vagina,” and made an unsuccessful attempt to sodomize her.
On physical examination, the SART nurse noted “redness … around [the victim’s]
cervix,” a “small lesion” in the same area, and an unspecified amount of blood not
attributable to menstruation. For purposes of DNA testing, swab samples were obtained
from the victim’s neck, breasts, stomach, vagina, cervix, anus, and inner thighs.
Six days later, on March 29, 2019, the victim participated in a recorded CART
interview. Her statements notably conflicted with the account documented by the SART
nurse in two ways. First, in contrast to the five-minute estimate previously given
regarding sexual intercourse, the victim told the CART interviewer, “[H]e only put it in
me once and I pushed him off.” Second, whereas she had previously denied there was
any “grabbing” or “holding,” in the revised version she had tried running away after
pushing defendant to the ground, but he grabbed her legs and a struggle ensued prior to
the attempted sodomy. The victim confirmed that a six-year-old relative was asleep in
the room when the incident occurred.
During the CART interview, the victim initially omitted the allegation of
defendant placing his mouth on her breasts. When later asked about “any other places on
your body where he touched you,” she claimed defendant had groped, kissed, and licked
her breasts prior to the attempted sodomy. She added that he also “grabbed my hand and

5.
[placed it on his penis].” The forced touching of defendant’s penis allegedly occurred
“over his clothing.”
Defendant was charged with forcible rape of a 14-year-old minor (Pen Code,
§ 261, subd. (a)(2); count 1); digital penetration of an unconscious person (§ 289, subd.
(d); count 2); attempted forcible sodomy of a 14-year-old minor (§§ 286, subd. (c)(2)(C),
664; count 3); and six counts of committing lewd or lascivious acts upon a 14-year-old
minor (§ 288, subd. (c)(1); counts 4 [“hand to vagina”], 5 [“penis to vagina”], 6 [“penis to
buttocks”], 7 [“mouth to breast”], 8 [“hand to breast”] & 9 [“hand to penis”]). The case
was tried to a jury in early 2021. (Undesignated statutory references are to the Penal
Code.)
Prosecution Case
The victim testified to a version of events similar to the account given in her
recorded CART interview. The recording was separately played for the jury. There were
some discrepancies and new allegations in the trial testimony, which the defense
highlighted on cross-examination and during closing argument.
The victim’s testimony clarified that the “massages” were a holistic medicine
technique involving the use of small triangular magnets. It did not entail any gripping or
rubbing of the other person’s body with the hands. She acknowledged defendant had
suffered a back injury and used the magnets as a form of treatment.
Additional prosecution witnesses included the victim’s mother and father, her
boyfriend at the time of the incident, the lead detective, the SART nurse, and a criminalist
from the California Department of Justice Crime Laboratory. The boyfriend confirmed
that he and the victim had engaged in sexual intercourse a “couple times.” He testified
the last time they had sex was approximately one month prior to the incident.
The criminalist testified to the results of DNA testing on certain swab samples
obtained during the SART examination. Law enforcement officials had elected not to
test most of the swabs. The analyzed specimens were referred to by their point of origin:

6.
“external vaginal,” “vaginal,” and “cervix.” The cervix swab contained no sperm cells
but did reveal a trace amount of male DNA from an unidentifiable source.
Sperm was found in the vaginal and external vaginal swab samples. The vaginal
swab contained a partial male DNA profile that was positively matched to defendant.
The external vaginal swab contained a DNA mixture that included “at least two male
contributors,” one of whom was defendant. The other male contributor was never
identified.
Defense Case
Defendant testified on his own behalf. In pertinent part, his testimony alleged the
victim had “slid her legs underneath the bed all the way to her butt” before he applied the
magnets. As he was rubbing the magnets over her back, she began to moan. Next, the
victim suddenly and unexpectedly “slid both her legs out[,] turned sideways[,] and had
her shorts off.” With her “bare butt” facing him, the victim “reached for [his] waistband
and got ahold of [his] penis.” She then “pushed backwards against him,” making contact
with his now exposed but flaccid penis. The entire sequence happened within “a couple
of seconds.”
Defendant claimed to have rejected the victim’s advances, pushing her away and
saying, “‘No. I can’t. You got excited.’” He then “tried to tell her that things [were]
going to be all right, and it was just her hormones acting up.” The victim, appearing
“embarrassed and scared,” retreated to the bathroom. Defendant further testified to
having masturbated a few hours prior to the incident, which supposedly explained the
prosecution’s DNA evidence.
On cross-examination, defendant was asked to reconcile how his DNA was found
inside the victim’s body if there was no sexual penetration. Despite maintaining that
intercourse had not occurred, he conceded “the only way it could have got there is if she
grabbed [my penis] and put it there.” Defense counsel attempted to mitigate the arguably
inconsistent testimony. On redirect examination, defendant again testified his penis was

7.
flaccid throughout the incident. He answered no when counsel asked if he had any
“training regarding DNA or transfer of semen or sperm.”
Verdicts
The jury deliberated for approximately 6.5 hours over the course of two days,
including sitting through a readback of the victim’s trial testimony. Shortly after
beginning its deliberations, the jury asked, “Can the 14 year old consent to counts 1-3?”
The trial court’s response merely noted that lack of consent was an element of counts 1
and 3, and count 2 required an inability to resist due to unconsciousness, i.e., because the
victim was asleep. After receiving this answer, the jury asked to review the victim’s
testimony. On the second day of deliberations, the jury asked, “What is the legal
definition of consent regarding count 1 in reference to age and her mental ability?” In
response, the trial court cited the following portions of CALCRIM No. 1000: “To
consent, a woman must act freely and voluntarily and know the nature of the act” and “It
is not required that she physically resist or fight back in order to communicate her lack of
consent.”
Defendant was found guilty as charged on counts 1, 3, 4, 5, and 6. He was found
not guilty on counts 2, 7, and 8. The jury deadlocked on count 9, which was later
dismissed. Sentencing details are provided elsewhere in the opinion.
DISCUSSION
I. Alleged Evidentiary Errors
Defendant alleges the trial court erred by (1) admitting evidence of a prior
uncharged act under Evidence Code section 11082 and (2) overruling objections to
certain testimony given by the SART nurse. The claims are meritless.

2 “In a criminal action in which the defendant is accused of a sexual offense, evidence of
the defendant’s commission of another sexual offense or offenses is not made inadmissible by
Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108,
subd. (a).)

8.
 A. Prior Uncharged Act
1. Background
During her initial reporting of the rape, the victim alleged defendant had
previously “touched her butt.” Defendant was questioned about the accusation during his
custodial interview. The detective began, “[S]he also told me about an incident that
happened about a year ago. Um, she said she was lying in bed. She was asleep and she
woke up to somebody—.” Defendant interjected, “Turning off her light.” The detective
said, “[N]o, somebody touching her butt. So she continued to pretend she was asleep.”
Defendant replied, “I know exactly what you’re talking about.”
Defendant claimed the incident happened “more than a year ago” and involved an
apparent misunderstanding. The victim had decorated her bedroom with “Christmas
lights” and, on the night in question, fell asleep without turning them off. Defendant did
not admit to touching her backside, but he purported to recall that she woke up when he
went into the room to turn off the lights. He alleged his wife had “yelled at [him] the
next day,” asking, “‘What the [expletive] [were] you doing in there?’”
The SART nurse made a note about the victim describing an “‘incident with step-
dad rubbing her butt over her clothes in 2017.’” The victim made the same allegation
during her subsequent CART interview. On the latter occasion, she added that her
mother also remembered the incident and had recently told her defendant was drunk
when it happened.
Defendant moved in limine to exclude all evidence of the prior incident. Relying
on Evidence Code section 352, he argued that admitting the evidence would lead to “a
trial within a trial” on the truth of the allegation. The motion was denied based on
Evidence Code section 1108.
The issue came up during the examinations of several witnesses at trial. The
questioning was brief, and the testimony was generally consistent with the parties’
previously documented statements. The victim’s mother testified to having seen

9.
defendant coming out of the victim’s room one night and asking both of them about it the
next day. Defendant had allegedly said, “‘Oh, I thought it was our room.’” The victim
had allegedly said that “nothing happened.”
Defendant testified as follows:

“The only incident I remember that was anywhere similar to that was when
I went in to unplug some Christmas lights. And she had —there was bunk
beds and she had strung Christmas lights all the way around the top. They
were plugged on the right side and on the left side with a little extension
cord. [¶] And on that night I went back and I went to unplug them and
she—I don’t know if I leaned on the bed or whatever to reach across and
she moved and scared the hell out of me and—but I had already unplugged
it so then I took off.”
2. Analysis
“Character evidence, sometimes described as evidence of a propensity or
disposition to engage in a type of conduct, is generally inadmissible to prove a person’s
conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159.)
This principle is codified in Evidence Code section 1101. An exception is found in
Evidence Code section 1108. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) “‘In
enacting Evidence Code section 1108, the Legislature decided evidence of uncharged
sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed
admissible without regard to the limitations of Evidence Code section 1101.’” (People v.
Loy (2011) 52 Cal.4th 46, 63, italics added.) The jury may consider such evidence “‘for
any relevant purpose’ [citation], subject only to the prejudicial effect versus probative
value weighing process required by [Evidence Code] section 352.”3 (Britt, supra, at p.
505.)

3 Evidence Code section 352 provides: “The court in its discretion may exclude evidence
if its probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”

10.
 “In short, if evidence satisfies [Evidence Code] section 1108, and is not excluded
under [Evidence Code] section 352, admission of that evidence to prove propensity is
permitted.” (People v. Molano (2019) 7 Cal.5th 620, 664.) “[T]he trial court’s
determination should be guided by such factors as the ‘nature, relevance, and possible
remoteness’ of the evidence, ‘the degree of certainty of its commission and the likelihood
of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission ….’” (People v. Dworak (2021) 11
Cal.5th 881, 900.)
The admission of evidence pursuant to Evidence Code section 1108 necessarily
implies the balancing test of Evidence Code section 352 has been satisfied. (See Evid.
Code, § 664; People v. Carpenter (1999) 21 Cal.4th 1016, 1053 [“a court need not
expressly state for the record it engages in a weighing process every time it makes a
ruling”].) “Like any ruling under [Evidence Code] section 352, the trial court’s ruling
admitting evidence under [Evidence Code] section 1108 is subject to review for abuse of
discretion.” (People v. Story (2009) 45 Cal.4th 1282, 1295; accord, People v. Dworak,
supra, 11 Cal.5th at p. 899.) “Under the abuse of discretion standard, ‘a trial court’s
ruling will not be disturbed, and reversal of the judgment is not required, unless the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’” (People v. Hovarter (2008) 44 Cal.4th
983, 1004.)
Defendant argues “the charged and uncharged acts involved no substantial
similarities.” He overlooks count 2, which was based on the victim’s allegation of being
digitally penetrated while asleep. Both the prior incident and the case before the jury
involved allegations of defendant molesting the victim while she was sleeping. The
evidence had propensity value in terms of showing defendant was sexually attracted to

11.
the underage victim and had previously acted upon those feelings. (See, e.g., People v.
Holford (2012) 203 Cal.App.4th 155, 161, 185–186 [appellant’s prior molestation of his
15-year-old daughter “tended to show [he had] a sexual attraction to young girls”].) The
evidence was also probative of witness credibility since the victim’s mother testified that
while something outwardly suspicious had occurred, the victim initially said that
“nothing happened.”
Defendant also discusses the factors of remoteness, confusion of the issues, and
“the danger of fabrication.” The incident was estimated to have occurred within two
years of the charged offenses, so the trial court was within its discretion to conclude
remoteness was not a significant factor. (See, e.g., People v. Merriman (2014) 60 Cal.4th
1, 40–41 [incidents that occurred “no more than three years” apart held “not remote in
time” for purposes of Evid. Code, § 1108].) Defendant argues “all of the evidence”
regarding the prior incident came from the victim, but he is forgetting his own admissions
during custodial interrogation. He also complains of “a ‘mini-trial’ to determine whether
the uncharged act amounted to an innocent mistake,” but the record does not support this
argument. Moreover, the risk of undue consumption of time and juror confusion could
have reasonably been assessed as low when the challenged ruling was made. Error has
not been shown. (See generally People v. Davis (1996) 50 Cal.App.4th 168, 172 [“the
appealing party must affirmatively demonstrate error on the face of the record ”].)
B. Expert Testimony
The SART nurse documented abnormal findings from her physical examination of
the victim. In testifying to what was depicted in a photograph she had taken of the
victim’s cervix, she explained: “You can see there’s areas of redness, kind of up at the
top of her cervix. You can also notice the distinction between the redness and the pink
color that a normal cervix—what a normal cervix looks like.” The witness further

12.
testified to her findings of a “small lesion” in the same area, i.e., “a small scrape, scratch,
[or] laceration,” as well as the presence of blood.
The cervical findings were said to be indicative of “[s]exual trauma or sexual
intercourse,” and “consistent” with the victim’s allegations in the verbal portion of the
exam. The SART nurse responded affirmatively when the prosecutor asked , “So that
trauma was consistent with [the victim] reporting that she was just raped?” Defense
counsel’s objections to the testimony were overruled.
The SART nurse did not say the cervical findings were necessarily caused by or
exclusively attributable to a sexual assault. On cross-examination, she conceded the
injuries could have been sustained through “normal, consensual sexual intercourse.” She
also conceded her inability to provide “a specific timeframe as to when these injuries
actually occurred.” At one point defense counsel said, “[J]ust by looking at that photo
you cannot say who caused that injury; correct?” The witness answered, “I can’t say
who, that’s why I collect the DNA.”
Defendant does not challenge the witness’s qualifications as a SART nurse. He
rather contends “an opinion that a particular injury is ‘consistent’ with a sexual assault”
requires special “training or knowledge of expert studies on the genesis of such injuries.”
Defendant goes on to impliedly argue such experts do not exist because “[f]ew scientific
studies purport to correlate certain physical injuries with the conclusion that they were
inflicted by sexual assault.” Therefore, “[a]bsent such studies, no witness should be
allowed to testify that an injury is ‘consistent’ with sexual assault.” Defendant presents
his argument with virtually no supporting authority, 4 and we reject it for the following
reasons.

4 Defendant’s briefing cites Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509
U.S. 579 for the general proposition that “in order to qualify as ‘scientific knowledge,’ an
inference or assertion must be derived by the scientific method.” (Id. at p. 590.) Defendant also
quotes from Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113: “Where an
expert bases his conclusion upon assumptions which are not supported by the record, upon

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 “There is a statutory scheme addressing the function of SART exams in
connection with the criminal investigative process. By legislative enactment, one
hospital training center in the state was established for the purpose of, inter alia,
‘train[ing] medical personnel on how to perform medical evidentiary examinations for
victims of … sexual assault ….’” (People v. Uribe, supra, 162 Cal.App.4th at p. 1477,
quoting § 13823.93, former subd. (b).)5 The SART nurse in this case was a licensed
registered nurse with 15 years of experience as an emergency room nurse, had been
trained as a forensic nurse examiner, and was qualified under the statutory scheme to
“perform a medical evidentiary examination” of the victim, i.e., “to evaluate, collect,
preserve, and document evidence, interpret findings, and document examination results
as described in Sections 13823.5 to 13823.11, inclusive.” (§ 13823.93, subd. (a), italics
added; see generally People v. Catlin (2001) 26 Cal.4th 81, 131 [“Qualifications other
than a license to practice medicine may serve to qualify a witness to give a medical
opinion”].)
Furthermore, “a long line of California decisions … permit an expert medical
witness to give an opinion of the cause of a particular injury on the basis of the expert’s
deduction from the appearance of the injury itself.” (People v. Bledsoe (1984) 36 Cal.3d
236, 249; see People v. Sanchez (2016) 63 Cal.4th 665, 675.) The SART nurse
adequately testified to the basis for her opinions. She had knowledge of what a normal
cervix looks like and articulated the abnormal findings from her physical examination of
the victim. She explained “the cervix is really high up in the vagina, so unless there’s
something inserted into the vagina there is no other way those injuries can be there.”

matters which are not reasonably relied upon by other experts, or upon factors which are
speculative, remote or conjectural, then his conclusion has no evidentiary value.” (Id. at p.
1135.)
5 Section 13823.93, subdivision (b)(1), now uses the term “qualified healthcare
professionals” instead of “medical personnel.”

14.
 Defendant complains the SART nurse had “no special knowledge regarding
whether [the injuries were] inflicted during consensual sex rather than a forcible sexual
assault,” but the witness did not render such opinions. She testified the findings were
“consistent” with the latter but did not necessarily rule out the former. Contrary to
defendant’s additional arguments, the testimony did not equate to vouching for the
victim’s credibility or expressing an opinion about defendant’s guilt or innocence. Error
has not been shown. (See People v. Sta Ana (2021) 73 Cal.App.5th 44, 57–59 [rejecting
similar claim where a SART nurse “testified that [the complaining witness’s] injuries
were consistent with nonconsensual intercourse, based on a hypothetical that mirrored
[the complainant’s] testimony about how the alleged rape occurred. [¶] On cross-
examination, the SART nurse acknowledged that injuries can occur during consensual
sex …”]; cf. People v. Rowland (1992) 4 Cal.4th 238, 265–267 [rejecting challenge to
“expert medical opinion that the absence of genital trauma is not inconsistent with
nonconsensual sexual intercourse”].)
II. Alleged Instructional Error
In People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), the California Supreme
Court “held that a defendant’s reasonable and good faith mistake of fact regarding a
person’s consent to sexual intercourse is a defense to rape.” (People v. Williams (1992) 4
Cal.4th 354, 360, citing Mayberry, supra, at p. 155.) The pattern instructions for sex
crimes that require proof of nonconsensual acts have optional language explaining this
principle. (E.g., CALCRIM Nos. 1000, 1030.) Although defendant did not request a
Mayberry instruction, he contends the trial court had a sua sponte duty to give one for the
charge of forcible rape as alleged in count 1. As we explain, the claim is untenable in
light of his defense theory at trial.
“Ordinarily, consent of the victim is not a defense unless lack of consent is an
element of the offense. [Citations.] Many sex crimes expressly include the element that

15.
the act was accomplished against the victim’s will,” including forcible rape within the
meaning of section 261, subdivision (a)(2). (People v. Oliver (2020) 54 Cal.App.5th
1084, 1094.) The Mayberry holding provides for “a ‘mistake of fact’ defense, which
requires evidence showing that the defendant perceived facts differently from how they
actually existed. [Citation.] A Mayberry instruction ‘should not be given absent
substantial evidence of equivocal conduct that would have led a defendant to reasonably
and in good faith believe consent existed where it did not.” (People v. Dillon (2009) 174
Cal.App.4th 1367, 1381, italics omitted.)
“The court has a sua sponte duty to give a Mayberry instruction about good faith
and reasonable belief in the victim’s consent ‘“if it appears … the defendant is relying on
such a defense, or if there is substantial evidence supportive of such a defense and the
defense is not inconsistent with the defendant’s theory of the case.”’ [Citations].”
(People v. Molano, supra, 7 Cal.5th at pp. 667–668, italics added.) Defendant’s claim
fails because his defense at trial was the absence of any sexual behavior on his part. The
People discuss this in their briefing, additionally noting that a Mayberry defense would
have been tantamount to admitting guilt on counts 4 through 9. (See People v. Soto
(2011) 51 Cal.4th 229, 245 [“Since 1981, the lewd act crimes in section 288 have been
defined based on the offender’s wrongful conduct only. The victim’s ‘consent,’ such as it
may be, is no longer material in these cases”].) Defendant’s reply brief all but ignores the
problem. He purports to “disagree” with the People and cites to People v. Burnham
(1986) 176 Cal.App.3d 1134, which is plainly inapposite. (See id. at p. 1139 [“The
theory of appellant’s defense was that his wife was a voluntary participant in the various
acts of sexual intercourse … and the act of penetration by a foreign object”].)
Defendant’s trial counsel flat out accused the victim of being a liar. The
attorney’s opening statement argued, “We’re here because [the victim] made a move on
[defendant] and he turned her down. She was embarrassed and angry.” In closing
argument, counsel said, “[Defendant] turned her down and she was forced to lie to her

16.
friends and family about what happened.” He concluded by saying, “[The victim] lied
about what happened that day. No one wants to think a 14-year-old would lie about such
a thing. It’s terrible.… [¶] But at the end of the day, the DA has not met their burden.
… [The victim] lied. And I ask that you find [defendant] not guilty.”
Defendant denied having “any sort of sexual interest” in the victim. As reflected
in the following trial testimony, he likewise denied all material allegations of sexual
activity:

“Q. Did you ever at any point touch her breasts or vagina?

“A. No. She was on her stomach.

“Q. Did you ever touch—

“A. And her—she was underneath that bed all the way, so that’s
impossible.

“Q. Okay. At any point did you touch—did you ever penetrate her
vagina with your finger?

“A. No.

“Q. Or your penis?

“A. No.

“Q. Have you ever had any sort of sexual contact—

“A. No.

“Q. —with [the victim]?

“A. (Shook head negatively).”
In all of the cases defendant purports to rely upon, the accused parties conceded
their own willful involvement in the relevant sexual activity. (E.g., People v. Andrews
(2015) 234 Cal.App.4th 590, 596; People v. Sojka (2011) 196 Cal.App.4th 733, 736;
People v. Burnham, supra, 176 Cal.App.3d at pp. 1139, 1144; People v. Rivera (1984)
157 Cal.App.3d 736, 740.) Defendant not only denied any willing participation in the

17.
alleged acts, he went so far as to claim, “She violated me.” The only theory of consent
pertained to the cervical findings, but the argument was those findings were easily
attributable to consensual sex between the victim and her boyfriend (or whoever was the
second male contributor to the DNA mixture found on the external vaginal swab sample).
Because a Mayberry instruction would have been inconsistent with defendant’s theory of
the case, the trial court had no duty to provide one. (People v. Molano, supra, 7 Cal.5th
at pp. 667–668; cf. People v. May (1989) 213 Cal.App.3d 118, 127 [Mayberry instruction
required where appellant “never denied his active participation in the sexual conduct at
issue, and substantial evidence produced by both sides supported an inference that he
believed she was consenting”]; People v. Burnham, supra, 176 Cal.App.3d at p. 1144
[“Appellant never denied his active participation in the offenses; hence, mistake of fact
was not inconsistent with his theory of defense, namely, consent”].)
III. Senate Bill 567
A. Additional Background
On July 9, 2021, defendant was sentenced to a total prison term of 13 years 2
months. The trial court imposed the upper term of 11 years for count 1 (§ 264, subd.
(c)(2)) and one-third of the middle terms for counts 3 and 4 (translating to respective
terms of 18 months and 8 months), all to be served consecutively. Concurrent upper term
sentences were imposed for counts 5 and 6.
Defendant’s sentence was in accord with the recommendations of the prosecutor
and the probation department. The probation report identified five aggravating
circumstances specified in the California Rules of Court (further rule references are to the
California Rules of Court):

“The crime involved great violence, great bodily harm, the threat of
great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness. (Rule 4.421(a)(1))

18.
 “The victim was particularly vulnerable, as she was sleeping and
youthful. (Rule 4.421(a)(3))

“The manner in which the crime was carried out indicates planning,
sophistication, or professionalism. The defendant isolated the victim and
provided an excuse to touch her by offering a massage. (Rule 4.421(a)((8))

“The defendant took advantage of a position of trust or confidence to
commit the offense. (Rule 4.421(a)(11))

[and] [¶] … [¶]

“The defendant has engaged in violent conduct which indicates a
serious danger to society. (Rule 4.421(b)(1))”
The People’s statement in aggravation cited the same provisions and alleged many
of the same factual circumstances. Also cited was rule 4.421(b)(2), which reads, “The
defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency
proceedings are numerous or of increasing seriousness.” The prosecutor alleged:
“Defendant has a prior misdemeanor child abuse case for a violation of … section
273a(b) from 2006. The seriousness of his current convictions shows significant increase
in seriousness and severity as an adult.”
The trial court made these statements before pronouncing the judgment:

“The Court has read and considered probation officer’s report and
recommendations, the People’s aggravation and the mitigation factors. The
Court believes the probation report for the district attorney’s office in this
matter. The Court sat through the trial and never heard once that
[defendant] was sorry. I believe during the course of your argument, [the
prosecutor] stated that 16 times, in excess of ten times, [defendant] denied
anything ever happening.

“The thing that struck the Court—that struck the Court, something
happened because the sperm was found in her vagina. He denied
everything, and at the trial one of his statements was—wasn’t quite that far,
but it was as close as you get by saying it was her fault. She’s 14; he’s 43.
He’s three times the age. He should know better. He should never put
himself or her in the position that he did.

19.
 “He violated the trust. He took care to plan this while the mother
was not there, and those matter. [¶] The Court feels that the factors and
[sic] aggravation outweigh any mitigation, and so the Court will proceed on
that.”
B. Applicable Law
At the time of sentencing, the decision to impose the lower, middle, or upper term
for an offense with a sentencing triad rested “within the sound discretion” of the trial
court based on its determination of what “best serves the interests of justice.” (§ 1170,
former subd. (b) as amended by Stats. 2020, ch. 29, § 14.) Approximately three months
later, in October 2021, Senate Bill 567 was signed into law. (Stats. 2021, ch. 731.) As of
January 1, 2022, trial courts are precluded from imposing the upper term unless such
punishment is justified by “circumstances in aggravation of the crime …, 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).) However, “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….” (Id., subd. (b)(3).)
The parties contend Senate Bill 567 applies retroactively to judgments not yet final
as of January 1, 2022. “All published cases to consider this issue have found likewise.”
(People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109.) We agree as well. (See People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 303 [new legislation that “reduces the
possible punishment for a class of persons” is presumptively retroactive].)
Defendant claims Senate Bill 567 entitles him to a new sentencing hearing. The
People argue remand is unnecessary. To explain why we agree with defendant, it is
necessary to first discuss a split of authority regarding the standard of review.
“‘Failure to submit a sentencing factor to the jury, like failure to submit an
element [of the crime] to the jury, is not structural error.’” (People v. French (2008) 43
Cal.4th 36, 52, quoting Washington v. Recuenco (2006) 548 U.S. 212, 222.) “Such an

20.
error does not require reversal if the reviewing court determines it was harmless beyond a
reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S.
18.” (French, at p. 52, citing Neder v. United States (1999) 527 U.S. 1, 15.) In this
context, the test of Chapman, supra, 386 U.S. 18 (Chapman) requires a reviewing court
“to determine ‘whether, if the question of the existence of an aggravating circumstance or
circumstances had been submitted to the jury, the jury’s verdict would have authorized
the upper term sentence.’” (French, at p. 53, quoting People v. Sandoval (2007) 41
Cal.4th 825, 838.)
In People v. Flores (2022) 75 Cal.App.5th 495 (Flores), Division Three of the
First Appellate District articulated the following standard of review for errors arising
from retroactive application of Senate Bill 567: “‘[I]f a reviewing court concludes,
beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt
standard, unquestionably would have found true at least a single aggravating
circumstance had it been submitted to the jury,’ the error is harmless.” (Id. at p. 500,
quoting People v. Sandoval, supra, 41 Cal.4th at p. 839.) Put differently, the Chapman
test need not be applied in relation to all aggravating circumstances relied upon by the
sentencing court. If one such circumstance would have undoubtedly been found to exist,
“remand for resentencing … is unnecessary.” (Flores, at p. 501.)
In People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez), the Fourth Appellate
District, Division One, disagreed with Flores and held that certainty under Chapman as
to the existence of one among several factors relied upon by the sentencing court does not
end the inquiry. According to Lopez, “the initial relevant question … is whether the
reviewing court can conclude beyond reasonable doubt that a jury would have found true
beyond a reasonable doubt all of the aggravating factors on which the trial court relied in
exercising its discretion to select the upper term.” (Lopez, at p. 467, fn. 11.) If the
answer is no, the reviewing court must determine whether it is “certain, to the degree
required by People v. Watson (1956) 46 Cal.2d 818, 836, that the trial court would

21.
nevertheless have exercised its discretion to select the upper term if it had recognized that
it could permissibly rely on only a single one of the aggravating factors, a few of the
aggravating factors, or none of the aggravating factors, rather than all of the factors on
which it previously relied.” (Lopez, at p. 467, fn. 11.) If the answer to both questions is
no, the cause must be remanded for resentencing. (Ibid.)
In People v. Dunn (2022) 81 Cal.App.5th 394, 408 (Dunn), review granted
October 12, 2022, S275655, this district adopted “a version of the standard articulated in
Lopez, modified to incorporate Watson in the first step[.]” (Dunn, at p. 409.) The
threshold determination, i.e., step “(1)(a),” is “whether the jury would have found one
aggravating circumstance true beyond a reasonable doubt” or whether (i) the sentencing
court relied on an aggravating circumstance proven by “the fact of defendant’s prior
convictions and a certified record of defendant’s convictions was admitted, or [(ii)]
defendant admitted the facts underlying an aggravating circumstance.” (Dunn, at pp.
409–410 & fn. 13.)
If any of the step “(1)(a)” questions can be answered affirmatively, the reviewing
court proceeds to step “(1)(b),” asking “whether there is a reasonable probability that the
jury would not have found the remaining aggravating circumstance[s] [relied upon by the
sentencing court] true beyond a reasonable doubt.” (Dunn, supra, 81 Cal.App.5th at p.
410, rev. granted.) In essence, prejudice from the sentencing court’s reliance on factors
not found true by the jury is evaluated under the standard of People v. Watson, supra, 46
Cal.2d 818 (Watson) if the existence of at least one such factor can be determined with
the degree of certainty required by Chapman. “If all aggravating circumstances relied
upon by the trial court would have been proved to the respective standards, any error was
harmless.” If not, the reviewing court proceeds to the second part (step 2) of the analysis.
(Dunn, at p. 410.)
In step 2, the reviewing court determines “whether there is a reasonable
probability that the trial court would have imposed a sentence other than the upper term

22.
in light of the aggravating circumstances provable from the record as determined in the
prior steps. If the answer is no, the error was harmless. If the answer is yes, the
reviewing court vacates the sentence and remands for resentencing consistent with
section 1170, subdivision (b).” (Dunn, supra, 81 Cal.App.5th at p. 410, rev. granted.)
The differing approaches of Flores, Lopez, and Dunn are currently under review
by the California Supreme Court. (See People v. Lynch (May 27, 2022, C094174
[nonpub. opn.], rev. granted Aug. 10, 2022, S274942.) Incidentally, the author of Flores
and another justice who concurred in the Flores opinion have since been persuaded by
“the rationale for adding a state law harmless error component” to the analysis and now
endorse “the two-step harmless error standard articulated in Lopez.” (People v. Ross
(2022) 86 Cal.App.5th 1346, 1354, rev. granted Mar. 15, 2023, S278266.) We will apply
the Dunn analysis to defendant’s claim, but it should be noted the outcome would be the
same under Lopez. (See further discussion, post.)
C. Analysis
1. Step 1(a)
The trial court said it “believe[d] the probation report for the district attorney’s
office in this matter.” Despite the ambiguity of this statement, all implied findings
supporting the judgment “must be sustained on appeal if supported by substantial
evidence.” (People v. Osband (1996) 13 Cal.4th 622, 730.) However, to assume the
existence of an unproven aggravating circumstance under the Chapman standard, the
supporting evidence must essentially be “overwhelming and uncontested.” (People v.
French, supra, 43 Cal.4th at p. 53.) There is reasonable doubt as to the existence of the
alleged circumstance if the record contains “‘evidence that could rationally lead to a
contrary finding.’” (Ibid., quoting Neder v. United States, supra, 527 U.S. at p. 19.)
The trial court did not identify “an aggravating circumstance that relied only upon
the fact of defendant’s prior conviction[],” and, moreover, no certified records of the

23.
alleged prior conviction were introduced or admitted into evidence. (Dunn, supra, 81
Cal.App.5th at p. 410, fn. 13, rev. granted.) Nor did defendant admit or stipulate to “the
facts underlying an aggravating circumstance.” (Ibid.) Defense counsel, in arguing for a
mitigated term of seven years, alleged defendant’s “only prior conviction [was for] a
misdemeanor [violation of section] 273a(b) in which he was intoxicated and left a three
year old child at the residence [unsupervised].” However, even assuming this constituted
a binding admission regarding the fact of a prior conviction, the People’s continued
reliance on rule 4.421(b)(2) is misplaced.
Under rule 4.421(b)(2), an aggravating circumstance exists if the defendant’s
“prior convictions as an adult or sustained petitions in juvenile delinquency proceedings
are numerous or of increasing seriousness.” Disregarding the plain language of the rule,
the People’s statement in aggravation argued the “seriousness of [defendant’s] current
convictions,” when contrasted with his “prior misdemeanor child abuse case,”
demonstrated a “significant increase in seriousness and severity as an adult.” (Italics
added.) There are two problems with the argument. First, “[t]he determinations whether
a defendant has suffered prior convictions, and whether those convictions are ‘numerous
or of increasing seriousness’ [citation], require consideration of only the number, dates,
and offenses of the prior convictions alleged. The relative seriousness of these alleged
convictions may be determined simply by reference to the range of punishment provided
by statute for each offense.” (People v. Black (2007) 41 Cal.4th 799, 819–820.) The
nature and circumstances of the current convictions are irrelevant to the analysis.
The second problem with the People’s argument is that defendant was alleged to
have suffered only one prior conviction. The plain language of rule 4.421(b)(2), which
uses the plural noun “convictions,” requires multiple prior convictions (or juvenile
adjudications) that are “numerous or of increasing seriousness.” The numerosity
provision has been construed as requiring a minimum of three prior convictions or
adjudications. (See People v. Black, supra, 41 Cal.4th at p. 818 [citing People v. Searle

24.
(1989) 213 Cal.App.3d 1091, 1098, for proposition that “three prior convictions are
numerous”]; People v. Fernandez (1990) 226 Cal.App.3d 669, 681 [“Two prior
convictions … are not ‘numerous’”].) Findings of “increasing seriousness” have been
upheld based on only two prior convictions or juvenile adjudications (e.g., People v.
Quiles (2009) 177 Cal.App.4th 612, 621), but logic and reason dictate that a lone prior
conviction is insufficient. Therefore, the record does not support any implied findings of
an aggravating circumstance under rule 4.421(b)(2).
The trial court expressly found defendant “violated the trust,” presumably alluding
to the factor stated in rule 4.421(a)(11): “The defendant took advantage of a position of
trust or confidence to commit the offense.” On this issue, the evidence at trial was
overwhelming and uncontested. Defendant had been in a relationship with the victim’s
mother for approximately 10 years and had known the victim since she was four years
old. They had resided together for roughly the same length of time, and, by all accounts,
he was a father figure in her life.
The victim’s mother testified to frequently leaving the victim alone with
defendant, considering him to be “like a [stay-at-home] dad” during his periods of
unemployment and/or medical leave from work. Defendant testified to the closeness of
his relationship with the victim: “I was always in the position of advice. I was advisor,
teacher, instructor. And if there became a problem then I would tell [her mother] about it
and she was the one who would lay the law. [¶] … [¶] … My role was just to advise her
and give the best advice, you know, try to keep the yelling down, try to keep, you know,
not go overboard with the punishment.” By defendant’s own admission, the victim had
confided in him about being sexually active with her boyfriend. She testified to feeling
“shocked” at the time of the offenses because, “I didn’t think he was ever going to do this
to me.”
The evidence showed defendant had acquired and then violated a deep trust placed
in him by the victim’s mother and the victim herself. It is apparent, beyond a reasonable

25.
doubt, that the jury would have found defendant “took advantage of a position of trust or
confidence to commit the offense[s].” (Rule 4.421(a)(11).) We thus proceed to the next
step of the analysis. (Dunn, supra, 81 Cal.App.5th at pp. 409–410, rev. granted.)
2. Step 1(b)
“We must next determine whether there is a reasonable probability that the jury
would not have found the remaining aggravating circumstance[s] [relied upon by the trial
court] true beyond a reasonable doubt.” (Dunn, supra, 81 Cal.App.5th at p. 410, rev.
granted.) In doing so, we are mindful “‘“‘that a “probability” in this context does not
mean more likely than not, but merely a reasonable chance, more than an abstract
possibility.’”’” (People v. Wilkins (2013) 56 Cal.4th 333, 351.) “Additionally, to the
extent a potential aggravating circumstance … rests on a somewhat vague or subjective
standard, it may be difficult for a reviewing court to conclude with confidence that, had
the issue been submitted to the jury, the jury would have assessed the facts in the same
manner as did the trial court.” (People v. Sandoval, supra, 41 Cal.4th at p. 840.)
“Many of the aggravating circumstances described in the rules require an
imprecise quantitative or comparative evaluation of the facts. For example, [rule
4.421(a)(3)] call[s] for a determination as to whether ‘[t]he victim was particularly
vulnerable’ ….” (People v. Sandoval, supra, 41 Cal.4th at p. 840.) Here, the probation
department and the prosecutor argued rule 4.421(a)(3) was applicable due to the victim’s
age and because “she was sleeping.” The People appear to have abandoned the
“sleeping” argument on appeal, perhaps realizing the significance of defendant’s acquittal
on count 2.
The jury’s not guilty verdicts on counts 2, 7, and 8, and inability to reach a
consensus on count 9, strongly suggest it did not believe all of the victim’s testimony.
Count 2 was based on the allegation she fell asleep during the magnet massage and
awoke to defendant digitally penetrating her. Given its rejection of this charge, it is

26.
reasonably probable the jury concluded the victim was not sleeping. The People point to
no additional evidence of vulnerability beyond the victim’s age and the nature of her
relationship with defendant. Without more, it is reasonably probable the jury would not
have unanimously found the victim was “particularly vulnerable.”6 (Rule 4.421(a)(3);
see People v. Sandoval, supra, 41 Cal.4th at p. 842 [listing “clear-cut” examples of
victim vulnerability: “elderly, very young, or disabled, or otherwise obviously and
indisputably vulnerable”].)
The probation department and the prosecutor further alleged, and the trial court
appears to have relied upon, the applicability of rule 4.421(a)(8), i.e., “The manner in
which the crime was carried out indicates planning, sophistication, or professionalism.”
The probation report argued defendant “isolated the victim and provided an excuse to
touch her by offering a massage.” The People’s statement in aggravation argued, “After
the incident, the Defendant tried to talk to the victim and tell her not to report it or tell her
mom.” The People also cited defendant’s admission to showering after the incident and
his alleged effort to persuade the victim to shower, the implied argument being it showed
an effort to eliminate DNA evidence. At sentencing, the trial court found defendant
“took care to plan this while the mother was not there.”
While the record provides some support for the trial court’s express and implied
findings under rule 4.421(a)(8), it also contains evidence probative of the opposite
conclusion. The incident did occur while the victim’s mother was at work, but a six-
year-old relative was present the entire time. This child fell asleep shortly before the
crimes were committed and was napping in the victim’s bedroom during the events. In
addition, the mother was expected home soon and did in fact return not long after the

6 We note defendant was already subject to increased punishment due to the victim’s age.
Forcible rape is ordinarily punishable “by imprisonment in the state prison for three, six, or eight
years.” (§ 264, subd. (a).) However, under section 264, subdivision (c)(2), the sentencing triad
increases to seven, nine, or 11 years if the crime was committed “upon a minor who is 14 years
of age or older.”

27.
incident had occurred. The victim testified to text messaging her mother from inside the
bathroom about wanting to discuss something with her, and the mother replying that she
“was on her way home.”
Furthermore, what set everything in motion was the victim asking defendant to
buy her a particular item. Defendant came up with a chore list in response to the request,
and the victim elected to perform the “massage” at that point in time. Had the victim
chosen to start with the other tasks on the list, e.g., vacuuming and washing dishes, her
mother or one of the other adult relatives who lived there may have returned home by the
time she was ready to use the magnets. It is reasonably probable at least one juror would
have interpreted the evidence as demonstrating a complete lack of planning and
sophistication, i.e., as showing defendant had acted impulsively in a moment of
opportunity. (See, e.g., People v. Wandrey (2022) 80 Cal.App.5th 962, 983 [“While it
may seem intuitively obvious that [appellant] abused a position of trust, this is less true as
to whether [the victim] was particularly vulnerable and whether [the] offenses indicated
planning. Some degree of speculation would necessarily be required for us to conclude
the jury would have agreed with the trial court’s evaluation”], rev. granted Sept. 28,
2022, S275942; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1472 [“It is just as
likely, if not more so, that the jury would have found [the crimes] were not planned,
sophisticated, or professional”].)
We next consider the likelihood of the jury finding “[t]he crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).) The probation
department cited rule 4.421(a)(1) without providing any factual argument or allegations.
The People argued defendant “forcibly raped and attempted to sodomize, by use of force,
his 14 year old stepdaughter,” further noting the victim “sustained injury to the back of
her cervix that was observed during her SART exam.” The trial court made no express
findings on this issue.

28.
 Forcible rape is a violent and inherently harmful offense. (See People v. Rundle
(2008) 43 Cal.4th 76, 143 [“there is no doubt that a rape is a violent injury to another”].)
“An aggravating circumstance is a fact that makes the offense ‘distinctively worse than
the ordinary.’” (People v. Black, supra, 41 Cal.4th at p. 817; see rule 4.420(h) [“A fact
that is an element of the crime on which punishment is being imposed may not be used to
impose a particular term”].) Determinations under rule 4.421(a)(1) involve the type of
“somewhat vague” and subjective standards the California Supreme Court cautioned
about in Sandoval. (People v. Sandoval, supra, 41 Cal.4th at p. 840.) The jury’s mixed
verdicts, combined with its questions about consent and the required lack thereof, make it
difficult to surmise its conclusions regarding exactly what happened in this case, much
less whether the facts demonstrated “great violence, great bodily harm, [the] threat of
great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness.” (Rule 4.421(a)(1), italics added.)
The term “great bodily harm” is typically defined for jurors in the language of
section 12022.7, i.e., to mean “a significant or substantial physical injury.” (Id., subd. (f);
see, e.g., CALCRIM Nos. 821, 830.) As such, it is reasonably probable the jury would
have focused on the victim’s physical injuries (or lack thereof) as opposed to the
psychological trauma she experienced. (See People v. Caudillo (1978) 21 Cal.3d 562,
582 [although “substantial psychological and emotional distress is experienced by rape
victims generally,” reference to “physical injury” in § 12022.7 does not include
psychological or emotional distress].) Had the prosecutor’s arguments to the jury
regarding rule 4.421(a)(1) focused on the SART nurse’s cervical findings—as argued in
the statement of aggravation—it is reasonably probable not all 12 jurors would have been
convinced beyond a reasonable doubt. As previously discussed , there was a plausible
alternate explanation for those findings, i.e., consensual sex between the victim and her
boyfriend. And while defendant’s behavior was undeniably repugnant, we cannot be
certain to the degree required by Watson that the jury would have unanimously found a

29.
high degree of cruelty, viciousness, or callousness. (Cf. People v. Garcia (1989) 209
Cal.App.3d 790, 792, 794 [upper term sentencing justified under former rule 421(a)(1)
where appellant, who “knew that he had herpes,” raped a randomly targeted victim after
having “punched and slapped her, dragged her by the hair across a parking lot …[,] beat
her face, neck, and upper body, and … ripped off her clothing”].)
Another circumstance alleged by the prosecutor and probation department, but not
expressly found by the trial court, was that defendant “has engaged in violent conduct
that indicates a serious danger to society.” (Rule 4.421(b)(1).) The People argued he
“displayed predatory sexual behavior, used force and violence to complete the acts, and
encouraged the victim not to report.” The probation department gave no explanation for
why rule 4.421(b)(1) was applicable, but a different section of its report claimed
defendant had scored a “-1” on the “Static-99R,” described therein as “the most widely
used … [¶] actuarial measure of risk for sexual offense recidivism.”
According to the probation report, defendant’s Static-99R score “means his
relative risk level is below average risk[,] which represents the risk of someone in this
score group being charged or convicted of another sexual offense within five years after
he is released on probation.” More specifically, the risk of defendant reoffending was
estimated to be “1.9%” over five years.” The risk score was based on the information
known at the time of sentencing.
Defendant’s reportedly low score on the Static-99R and scant criminal history
show the allegation he posed a “serious danger to society” was contestable. (Rule
4.421(b)(1), italics added.) “Aggravating circumstances are based upon facts that are not
elements of the crime[,] … [and] [d]efendant thus did not necessarily have reason—or the
opportunity—during trial” to dispute the applicability of rule 4.421(b)(1). (People v.
Sandoval, supra, 41 Cal.4th at p. 839.) Therefore, we “cannot necessarily assume that
the record reflects all of the evidence that would have been presented had [the issue] been

30.
submitted to the jury.” (Ibid.) But even as the record stands now, it is possible the jury
would not have found this aggravating circumstance true beyond a reasonable d oubt.
We lastly observe that the prosecutor, while alleging various aggravating
circumstances, argued defendant had “shown absolutely no remorse.” The trial court
subsequently made a remark about “never hear[ing] once that [defendant] was sorry” and
further noted he had “denied everything.” These and other related statements arguably
suggest the trial court considered defendant’s lack of remorse and/or refusal to admit
guilt to be an additional aggravating factor.
A criminal defendant has the right to maintain his or her innocence. (People v.
Bloom (2022) 12 Cal.5th 1008, 1038–1039.) A sentencing court may consider as a
mitigating circumstance whether the defendant “voluntarily acknowledged wrongdoing
before arrest or at an early stage of the criminal process.” (Rule 4.423(b)(8).) However,
a defendant’s refusal to admit guilt does not, in and of itself, constitute an aggravating
circumstance justifying the imposition of upper term sentencing.
In death penalty cases, “lack of remorse, because it suggests the absence of a
mitigating factor, is deemed a relevant factor in the jury’s determination as to whether the
factors in aggravation outweigh those in mitigation, and is thus an appropriate subject of
comment by the prosecutor, so long as he or she does not argue that lack of remorse
constitutes a factor in aggravation.” (People v. Crittenden (1994) 9 Cal.4th 83, 150;
accord, People v. Duong (2020) 10 Cal.5th 36, 71.) In noncapital cases, remorse is a
factor to be considered in deciding whether to grant probation. (Rule 4.414(b)(7).)
Defendant, however, was statutorily ineligible for probation. (§ 1203.065, subd. (a).)
Lack of remorse is not among the aggravating factors listed in rule 4.421. It may
sometimes be considered under the catchall provisions of rules 4.408(a) and 4.421(c), but
not if “‘the defendant has denied guilt and the evidence of guilt is conflicting.’” (People
v. Leung (1992) 5 Cal.App.4th 482, 507, italics omitted; accord, People v. Weber (2013)
217 Cal.App.4th 1041, 1064, fn. 7.) Defendant denied guilt, and the evidence at trial was

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conflicting. Therefore, his alleged lack of remorse could not be relied upon as an
aggravating circumstance.7
3. Step 2
We must now determine “whether there is a reasonable probability that the trial
court would have imposed a sentence other than the upper term in light of the aggravating
circumstances provable from the record as determined in the prior steps.” (Dunn, supra,
81 Cal.App.5th at p. 410, rev. granted.) As explained above, only one of the alleged
circumstances “would have been proved to the respective standards.” (Ibid.) The
question, therefore, is whether the trial court would have concluded upper term
sentencing was appropriate and justified solely because “defendant took advantage of a
position of trust or confidence to commit the offense” (rule 4.421(a)(11)). (See § 1170,
subd. (b).)
In People v. Avalos (1984) 37 Cal.3d 216, the California Supreme Court applied
the Watson standard “to determine whether error by the trial court in relying upon
improper factors in aggravation requires remanding for resentencing.” (Avalos, at p.
233.) The case holds remand is necessary if the reviewing court “cannot determine

7 Additionally, in light of Senate Bill 567, a defendant’s lack of remorse would now need
to be found true by the trier of fact before the sentencing court could rely upon it under the
catchall provisions. While on the witness stand, defendant was asked about his displays of
emotion during the testimony of the victim and the victim’s mother. He testified: “It’s because I
miss them. [¶] … [¶] Both of them. I was out—I was always there for them and, you know, I
tried to do my best and I loved them. I still do. That’s why.” The jury also saw defendant cry in
the video of his custodial interview, wherein he discussed his efforts to be a good parent and how
much he valued his family. Although maintaining innocence and lacking remorse can go hand in
hand, both are not mutually exclusive. (See People v. Fierro (1991) 1 Cal.4th 173, 244 [“there
appears to be little practical difference between a failure to confess and a claim of innocence;
neither should be cited as evidence of lack of remorse”].) The current law provides for
bifurcation of the trial on the circumstances in aggravation from trial of the charges and
enhancement allegations (§ 1170, subd. (b)(2)), so a defendant’s exercise of their right to contest
the charges is hardly indicative of how the issue of remorse would be argued to jurors following
a guilty verdict. Thus, even assuming defendant’s alleged lack of remorse could be considered
as an aggravating factor, the record does not necessarily demonstrate harmless error in failing to
submit the issue to the jury.

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whether the improper factor was determinative for the sentencing court.” (Ibid.) Here,
the trial court directly and indirectly referenced multiple aggravating circumstances
without indicating the relative importance of any to its decision. As we cannot deduce
whether the improperly considered factors were determinative, it is necessary to remand
for resentencing.
IV. Mooted Claims
Defendant’s briefing alleges additional sentencing errors. All such claims,
including one based on the imposition of certain fines and fees and the holding of People
v. Dueñas (2019) 30 Cal.App.5th 1157, are mooted by defendant’s entitlement to a new
sentencing hearing. Those mooted issues may be raised on remand.
DISPOSITION
Defendant’s sentence is vacated and the cause is remanded for resentencing
consistent with section 1170, subdivision (b). In all other respects, the judgment is
affirmed.

PEÑA, Acting P. J.
WE CONCUR:

SMITH, J.

DE SANTOS, J.

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