People v. Rubalcaba CA4/1 ( 2022 )

Filed 7/8/22 P. v. Rubalcaba CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079882
Plaintiff and Respondent,
v. (Super. Ct. No. 17CR-00019-RF)
FELIPE CELIS RUBALCABA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County,
Jeanne Schechter, Judge. Convictions affirmed; sentence vacated and
remanded with directions.
Rebecca P. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Michael P.
Farrell, Assistant Attorneys General, Carlos A. Martinez and Chung Mi Choi,
Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Felipe Celis Rubalcaba of continuous sexual abuse
(Pen. Code,1 § 288.5, subd. (a); count 1) and lewd acts upon a child under the
age of 14 years (§ 288, subd. (a); counts 3, 4, 5, 7). It found true allegations as
to each count that Rubalcaba committed lewd acts upon multiple child
victims. (§ 667.61, subd. (c).)2
The court sentenced Rubalcaba to 61 years to life with the possibility of
parole, imposing the upper term of 16 years on count 1; consecutive15-year-
to-life terms on counts 3, 5, and 7; and a concurrent 15-year-to-life term on
count 4. The court also imposed various fines and fees.
Rubalcaba contends the trial court erroneously: (1) allowed the
prosecution to amend count 3 of the information in violation of section 1009
and his constitutional right to due process; (2) instructed the jury with
CALCRIM No. 1190; and (3) imposed certain fines, fees and assessments
without ascertaining his ability to pay them. In supplemental briefing,
Rubalcaba contends that he is entitled to resentencing after Senate Bill No.
567 modified sections 1170 and 1170.1 to limit a court’s discretion to impose
an upper term sentence. We affirm the convictions, vacate the sentence and
remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
As Rubalcaba does not challenge the sufficiency of the evidence to
support his convictions, we set forth the facts relating only to his crimes
against C.M. to provide context for his contention that we should reverse his
count 3 conviction because the court improperly amended the information.
1 Undesignated statutory references are to the Penal Code.
2 Count 1 related to victim A.O.; counts 3 and 4 related to victim C.M.;
count 5 related to victim C.G.; and count 7 related to victim A.M. The court
dismissed count 2 at the prosecutor’s request, and the jury found Rubalcaba
not guilty of count 6.
2
C.M. was 29 years old at the time of trial, and testified that as a minor
he lived in El Nido, California, across the street from his best friend, whose
father was Rubalcaba. Starting when C.M. was 12 years old, Rubalcaba
touched C.M. inappropriately more than five times, including touching C.M.’s
buttocks and penis when C.M. slept over at Rubalcaba’s house. Rubalcaba
used to let C.M. sit in his lap and drive Rubalcaba’s car. On one such
occasion, when C.M. was 12 years old, Rubalcaba touched C.M.’s chest and
stomach under his clothes. On another occasion, Rubalcaba took him to pick
grapes and told him to suck Rubalcaba’s penis, and C.M. did so briefly. C.M.
moved to San Francisco when he was 12 years old.
Motion to Amend the Information
At the end of the People’s case-in chief, the prosecutor moved to amend
the information to conform to proof. Specifically, she sought to expand by two
years the date range of Rubalcaba’s offenses against C.M.; that is, from the
originally stated period of October 25, 1997, through October 24, 2000, to a
new end date of October 24, 2002. She argued: “In sexual assault cases,
particularly sexual assault cases of minors, it is not uncommon . . . that we
have to amend [the information] to reflect what their sworn testimony is
because these events occurred so long ago.”
Defense counsel objected that the proposed amendment “cover[ed] a
longer period of time than what was alleged in . . . the first amended
complaint deemed information.” He added that “changing the dates is a last-
ditch effort by the prosecution to bolster the credibility of witnesses whose
testimony was at best bumpy and nonspecific.” He also objected that the
court would deprive him of an opportunity to further cross-examine the
victims regarding their prior inconsistent preliminary hearing testimony.
3
The court granted the proposed amendment of the information, finding
no prejudice to the defense. Referring to the preliminary hearing transcript,
the court stated regarding count three: “[C.M.] did testify . . . question, ‘did
you touch your mouth to [Rubalcaba’s] penis any other time?’ Answer. ‘That
was the only time.’ . . . [I]t’s clear from the testimony that [C.M.] only
testified to one incident. His testimony was . . .[it occurred around age 10 or
11]. [¶] It’s clear from the preliminary hearing transcript as a whole that
these time periods . . . with all of these alleged victims . . . is all in the same
time period, the same number of years, when [Rubalcaba] had access to them
when they were visiting on a regular basis. [¶] And so I think that the
amendment to count three expanding the time—it’s really just by an
additional two years—is appropriate.”
The court also explained: “[I]f this was a situation in which [the
defense] were going to present—let’s say an alibi defense. Say [ ] Rubalcaba
didn’t even live there from, you know, 2000 to 2002, he never saw [C.M.]
during that time period, then yes. I think that would be prejudicial because
now you presented [an] alibi defense. But the only thing [the defense is]
arguing here is credibility. And the issue is the jury is either going to believe
[C.M.], or they’re not going to believe him.” The court added: “[A]s far as
Rubalcaba being on notice as to what he has to defend against, this is not
adding a new charge. The charge is [section] 288, a lewd and lascivious act.
It’s not changing the crime. It’s not adding a new crime. It’s just changing it
to conform to what was actually testified to at trial. And . . . that’s allowed.
And especially in a situation like this, we’ve heard a lot of rather generic
testimony from the witnesses. [¶] And in the types of cases—the courts have
been very clear that generic testimony is acceptable. Just because they may
fail to specify extremely precise dates, times, places, or circumstances doesn’t
4
render the testimony insufficient, and there was a general time period
described here . . . and [C.M.] clearly testified to this. It’s the preliminary
hearing transcript that really is what puts you on notice.”3
The court allowed the defense to recall the victims to testify. When
C.M. testified again the next day, defense counsel’s only questions revolved
around a purported discrepancy between C.M.’s testimony at the preliminary
hearing and at trial regarding whether C.M. had discussed with another
victim Rubalcaba’s improper conduct towards them.
Defense Counsel’s Closing Arguments
Defense counsel addressed the amended information in closing
arguments: “Counts three through seven. Why are the dates so nonspecific?
You have a particular conduct that’s described in each count, but the date
ranges are October 25[,]1997, until five years later, October 24[,] 2002, for
one incident that they described. Why can’t you be more specific, [C.M. and
3 The court instructed the jury regarding amended counts 3 and 4:
“Count three is still a violation of Penal Code section 288[, subdivision (a)],
lewd act upon a child. And [the amended information] states ‘on or between
August 25[,] 1997, [sic] and October 24[,] 2002, [ ] Rubalcaba did willfully,
unlawfully, and lewdly commit a lewd and lascivious act upon or with the
body or certain parts or members of [C.M.], a child under the age of 14, with
the intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of the said defendant or said child, to wit, the first time the defendant
touched [C.M.] while riding in the defendant’s car.’ [¶] Count four, again a
violation of Penal Code section 288[, subdivision (a)], in which [the amended
information] states ‘on or between October 25[,] 1997, and October 24[,] 2002,
[ ] Rubalcaba did willfully, unlawfully, and lewdly commit a lewd and
lascivious act upon or with the body or certain parts or members of [C.M.], a
child under the age of 14 with the intent of arousing, appealing to, or
gratifying the lusts, passions, or sexual desires of the said defendant, or said
child, to wit, the time the defendant had [C.M.] touch his mouth to the
defendant’s penis.’ ”
5
other victims]? These are fair and necessary questions you must pose to
yourself and others back in the jury deliberation room.”
Defense counsel challenged the victims’ credibility: “Nobody witnessed
any of this [wrongdoing] going on. No behavior [was shown] for any of those
supposed victims of [ ] Rubalcaba consistent with persistent victimization as
a child for sex crimes. [C.M.] doesn’t even remember a time when [another
victim] was even at the Rubalcaba address. [¶] Both my recollection of the
testimony is that both [C.M. and another victim] stated these things
happened between five-to-10 times to each of them. That’s what they
initially reported, then it becomes every weekend. This is a huge difference.
You don’t get that wrong. How does your memory—how do you suddenly
remember 52 times [ ] versus five-to-10 . . . over a period of four years? You
don’t. It either happened as many times as it happened, or it didn’t. There’s
no believable explanation for why there would be that magnitude of
discrepancy.”
Defense counsel added: “If there’s no motive here to fabricate or
exaggerate, why tell even a single lie? [C.M. and another victim] said they
never talked about this until January of 2017, when they were adults when I
cross-examined them. Until they had to admit that they’ve previously said
under oath they talked about it when they were children. No motive to lie.
Why tell that one then? You think they forgot that conversation? No. They
thought they could get away with the different answer. That’s the hard
truth.”
Defense counsel also argued: “[Two victims] each chose to go back to
[Rubalcaba’s] home over and over again. . . . In fact, [C.M. and another
victim] chose to keep coming back there every weekend, even though they
lived two and a half hours away in the Bay [Area], even though their mom
6
didn’t drive, didn’t want to drive that far to go there alone to be victimized.
No. Don’t believe this stuff.”
DISCUSSION
I. The Amended Information
Rubalcaba contends we should reverse his count 3 conviction because
the amended information “amounted to a new abuse allegation” not proved at
the preliminary hearing. He claims that by belatedly “allowing the
prosecution to expand the time frame by two years, the court prevented [him]
from investigating any possible defense to acts alleged during the additional
period of time—from 2000 through 2002,” violating his constitutional right to
due process.
A. Applicable Law
Section 1009 authorizes the trial court to “permit an amendment of an
. . . information . . . for any defect or insufficiency, at any stage of the
proceedings . . . unless the substantial rights of the defendant would be
prejudiced thereby.” However, an information may not be amended “so as to
charge an offense not shown by the evidence taken at the preliminary
examination.” (§ 1009.) This limitation preserves the defendant’s due
process right to notice of the charges against him or her, to have a reasonable
opportunity to prepare and present a defense, and to not be taken by surprise
by the trial evidence. (People v. Graff (2009) 170 Cal.App.4th 345, 360.) The
California Supreme Court has explained that “notice of the particular
circumstances of an alleged crime is provided by the evidence presented to
the committing magistrate at the preliminary examination, not by a factually
detailed information.” (People v. Jennings (1991) 53 Cal.3d 334, 358.)
This court reviews the trial court’s decision for abuse of discretion.
(People v. Miralrio (2008) 167 Cal.App.4th 448, 458; People v. Bolden (1996)
7
44 Cal.App.4th 707, 716.) In People v. Jones (1990) 51 Cal.3d 294, the
California Supreme Court recognized the difficult problems of proof when a
young victim has been molested, because a young victim—or even an adult—
“may have no practical way of recollecting, reconstructing, distinguishing or
identifying by ‘specific incidents or dates’ all or even any such incidents.”
(Jones, at p. 305.) The court balanced these problems of proof with the
defendant’s right to fair notice of the charges against him and a reasonable
opportunity to defend against those charges. With respect to notice, the
Jones court found that “the defendant has no right to notice of the specific
time or place of an offense, so long as it occurred within the applicable
limitation period.” (Id. at p. 317.) The court concluded that “given the
availability of the preliminary hearing, demurrer and pretrial discovery
procedures, the prosecution of child molestation charges based on generic
testimony does not, of itself, result in a denial of a defendant’s due process
right to fair notice of the charges against him.” (Id. at p. 318.) With respect
to the right to present a defense, the Jones court concluded that the victim’s
inability to recall or relate specific dates, locations, or other details of the
offenses did not inevitably preclude a defense. Jones observed that alibi or
identity defenses were rarely raised in resident child molester cases.
Usually, trial centered on the relative credibility of the accuser and the
accused. (Id. at pp. 313, 319.)
B. Analysis
We preliminarily point out that the defense availed itself of the
opportunity to recall C.M. to testify regarding inconsistencies in his
preliminary hearing and trial testimony, therefore reducing any prejudice to
Rubalcaba caused by the information’s late amendment. Next, as set forth
above, the trial evidence did not support the original information’s claim
8
Rubalcaba committed the crimes against C.M. before 2002. The information
was therefore properly amended to allege the correct date range for the two
specific crimes alleged: that of the touching while C.M. was driving
Rubalcaba’s vehicle (count 3) and that of the oral copulation (count 4). The
amended information showed the crimes occurred when C.M. was 12 years
old. This age is still encompassed by section 288, subdivision (a), because
C.M. was under 14 years of age. As set forth above, defense counsel in
closing addressed the problems of proof presented by the information’s
expanded date range, and urged the jury to find the victims not credible. The
evidence adduced at the preliminary examination was sufficient to provide
Rubalcaba with notice that he committed the charged acts. The court
committed no error, constitutional or otherwise, in permitting the
information to be so amended.
II. CALCRIM No. 1190
Rubalcaba contends the court’s instruction with CALCRIM No. 1190
prejudiced him because it “improperly suggested that jurors should view
complaining witness credibility in sex cases by a different[ ] and lower[ ]
standard.”
A. Background
Rubalcaba’s defense counsel objected to the court instructing the jury
with CALCRIM No. 1109 on the grounds it was duplicative of CALCRIM No.
301.4 Defense counsel further argued that the fact “that [CALCRIM No.]
1190 says specifically in [‘]sexual assault[’] cases is confusing. And I’m afraid
4 CALCRIM No. 301 provides: “The testimony of only one witness can
prove any fact. Before you conclude that the testimony of the one witness
proves a fact, you should carefully review all of the evidence.”
CALCRIM No. 1190 provides: “Conviction of a sexual assault crime
may be based on the testimony of a complaining witness alone.”
9
it would leave a juror, or the jury as a whole, to believe or conclude that . . .
since this is a sexual assault crime as opposed to all other categories of crime
. . . [¶] . . . if you give this instruction, it will make it seem like sex offense
crimes should be treated differently than all other crimes. And that’s . . . not
the law.”
The court ruled that under People v. Gammage (1992) 2 Cal.4th 693(Gammage), both instructions correctly state the law, focus on different legal
points, and do not lower the People’s burden of proof. It therefore instructed
the jury with CALCRIM Nos. 301 and 1190.
Defense counsel in closing arguments stated: “There’s a jury
instruction I want to draw your attention to. . . . It’s [CALCRIM No.] 1190. I
want you to look at that one and [CALCRIM No. 301, which] says the
testimony of a single witness may be enough to prove a fact if you believe it
beyond a reasonable doubt. [CALCRIM No.] 1190 . . . talked specifically
about sexual assault cases. [¶] And the point I want to make to you is this:
[CALCRIM No.] 1190 says that the testimony of a complaining witness in a
sexual assault case is—can be sufficient to convict somebody, but that doesn’t
mean that the standard is lower somehow in a sexual assault case than in
any other case there is . . . because that instruction’s in there twice, very
similar. I just want to make that point to you.”
Defense counsel reiterated to the jury in closing: “I want to go back to
. . . [CALCRIM Nos.] 301 and 1190. [‘]The testimony of only one witness
can—can prove any fact. Before you conclude that the testimony of one
witness proves a fact, you should carefully review all the evidence.[’] Well,
what other evidence is there that could cause you to believe that the
testimony of [victim A.O.] proved any fact? Is there testimony from another
witness that that witness saw it happen? No.”
10
B. Applicable Law
In Gammage, the defendant contended that the predecessor
instructions of CALCRIM Nos. 301 and 1190 “in combination . . .
unconstitutionally ‘create[ ] a preferential credibility standard for the
complaining witness.’ ” (Gammage, supra, 2 Cal.4th at p. 700.) The
California Supreme Court rejected this contention: “Although the two
instructions overlap to some extent, each has a different focus. [CALCRIM
No. 301’s predecessor] CALJIC No. 2.27 focuses on how the jury should
evaluate a fact (or at least a fact required to be established by the
prosecution) proved solely by the testimony of a single witness. It is given
with other instructions advising the jury how to engage in the fact-finding
process. [CALCRIM No. 1190’s predecessor] CALJIC No. 10.60, on the other
hand, declares a substantive rule of law, that the testimony of the
complaining witness need not be corroborated. It is given with other
instructions on the legal elements of the charged crimes. [¶] Because of this
difference in focus of the instructions, we disagree with defendant . . . that, in
combination, the instructions create a preferential credibility standard for
the complaining witness, or somehow suggest that that witness is entitled to
a special deference. The one instruction merely suggests careful review when
a fact depends on the testimony of one witness. The other tells the jury there
is no legal corroboration requirement. Neither eviscerates or modifies the
other. . . . The instructions in combination are no less correct, and no less
fair to both sides, than either is individually.” (Gammage, at pp. 700-701.)
“Errors in jury instructions are questions of law, which we review de
novo.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1424; People v.
Guiuan (1998) 18 Cal.4th 558, 569.) “It is well established in California that
the correctness of jury instructions is to be determined from the entire charge
11
of the court, not from a consideration of parts of an instruction or from a
particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538,
disapproved on a different point in People v. Reyes (1998) 19 Cal.4th 743,
756.)
The instructions with CALCRIM Nos. 301 and 1190 do not give the
victim’s testimony undue prominence and neither do they “ ‘dilute[ ] the
“beyond a reasonable doubt” standard.’ ” (Gammage, supra, 2 Cal.4th at
p. 701.) The Gammage court concluded: “[T]here remains a continuing
vitality in instructing juries that there is no legal requirement of
corroboration.” (Ibid.) Moreover, juries are also instructed that the
prosecution must prove its case beyond a reasonable doubt. “This places a
heavy burden of persuasion on a complaining witness whose testimony is
uncorroborated. CALJIC No. 10.60 does not affect this instruction but . . .
when all the instructions are given, ‘a balance is struck which protects the
rights of both the defendant and the complaining witness.’ ” (Gammage, at
p. 701.)
C. Analysis
We reject Rubalcaba’s claim that Gammage is inapplicable because it
did not focus on whether CALCRIM No. 1190 suggested that jurors should
judge witness credibility by a lower standard in sexual assault cases than in
other cases. Here, under Gammage, supra, 2 Cal.4th 693, the trial court did
not err by instructing the jury with CALCRIM No. 1190. Furthermore, the
court instructed the jurors with CALCRIM No. 200 to “[p]ay careful attention
to all of these instructions and consider them together.” It also instructed
them with CALCRIM No. 226 that in determining the credibility or
believability of the witnesses they are to use their common sense and
experience and may consider anything that reasonably tends to prove or
12
disprove the truth or accuracy of the testimony. CALCRIM No. 226 also lists
numerous factors jurors may use to judge witness credibility. Considering
the jury instructions as a whole, the trial court did not err by giving
CALCRIM No. 1190. There was no reasonable likelihood that the jury was
misled by the jury instructions.
Rubalcaba relies on Justice Mosk’s concurrence in Gammage, which
concluded CALJIC No. 10.60 was outdated and unnecessary. We, however,
are bound to follow the majority in Gammage. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 [“Courts exercising inferior
jurisdiction must accept the law declared by courts of superior jurisdiction”].)
Accordingly, we conclude the trial court did not err in instructing the jury
with both CALCRIM Nos. 301 and 1190.
III. Senate Bill No. 567
Rubalcaba contends that under Senate Bill No. 567, which modified
sections 1170 and 1170.1 and limited the court’s discretion to impose upper
term limits, this court should remand the matter for his resentencing.
A. Background
In imposing the upper term, the court stated: “. . . [F]or count one, I
always start with the Rules of Court. And under [California Rules of Court,
rule] 4.421, the Court does find the aggravating factors that the victims were
very vulnerable in this case. [Rubalcaba] took advantage of a position of
trust. And there were numerous acts that were testified to over the course of
nine years. The Court can take into account anything else that it considers to
be aggravated. [¶] And so as far as [rule] 4.423, mitigating factors, I do note
that [ ] Rubalcaba has no prior record. However, in light of the number of
victims, the position of trust that he was in—this was a place where they
13
were supposed to feel safe. And yet when they went over [to Rubalcaba’s
house], there was frequent abuse occurring, especially with respect to [A.O.]
. . . [¶] And from her testimony that she gave, it has had a tremendous
impact not only on all the victims, but especially on [A.O.], and has made
things unfortunately very difficult for her. And I sincerely hope that [A.O.]
and all the victims receive the help that they need and can move on with
their lives. [¶] So for count one, the Court does select the upper term of 16
years. And I do feel that is the just sentence in this case, as well, taking into
consideration everything.”
B. Applicable Law
At the time of defendant's sentencing, section 1170, former subdivision
(b), provided that the choice between sentencing a defendant to the lower,
middle, or upper term “shall rest within the sound discretion of the court,”
with the court to determine which term “best serves the interests of justice.”
(§ 1170, former subd. (b).)
Under Senate Bill No. 567, section 1170, subdivision (b) has been
amended to make the middle term the presumptive sentence for a term of
imprisonment; a court now must impose the middle term for any offense that
provides for a sentencing triad unless “there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have been found
true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (§ 1170, subd. (b)(1) & (2).)
C. Analysis
14
The People concede and we agree that amended section 1170,
subdivision (b), applies retroactively to Rubalcaba’s convictions, which are
not yet final. But they argue there is no need to remand for resentencing
because the trial court’s sentencing decision comported with section 1170,
subdivision (b)(3), to the extent it was based on three aggravating factors the
jury found true beyond a reasonable doubt, therefore any error was harmless.
On this record, the People’s argument that the jury necessarily found
the aggravating factors beyond a reasonable doubt is correct, as far as it goes.
We agree that the evidence showed the victims here were particularly
vulnerable given their young age; Rubalcaba violated a position of trust and
confidence in committing the offenses; and Rubalcaba committed numerous
acts, as the jury found in the convictions and enhancements. However, the
People’s conclusion does not end our inquiry. As we pointed out in People v.
Lopez (2022) 78 Cal.App.5th 459 (Lopez): “When a trial court increases a
defendant’s sentence by relying on factors that are inapplicable, duplicative,
or improperly weighed, a reviewing court assesses the prejudice to the
defendant by determining whether it is reasonably probable that a more
favorable sentence would have otherwise been imposed absent the trial
court’s improper reliance on such factors. [Citation.] This is because
‘ “[d]efendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court. [Citations.] A court which is
unaware of 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.]’ [Citations.] Therefore, where a trial court cannot have acted with
‘ “ ‘informed discretion,’ ” ’ ‘the appropriate remedy is to remand for
resentencing unless the record “clearly indicate[s]” that the trial court would
15
have reached the same conclusion “even if it had been aware that it had such
discretion.” ’ ” (Lopez, supra, at p. 467.)
Here we cannot be sure the court properly weighed the appropriate
factors because there was a mitigating factor articulated by the probation
report and found by the trial court, that Rubalcaba had no prior conviction.
Although the court considered this mitigating factor under the previous
version of section 1170, it is unclear if it would accord it the same weight
under the amended statute, which makes the mid-term sentence the
presumptive one.
Further, from clues already in the record, it appears Rubalcaba might
benefit from other provisions of the amended statute, that unless the
aggravating circumstances outweigh the mitigating circumstances such that
the lower term would be contrary to the interests of justice, the court shall
order the lower term if defendant has experienced psychological, physical, or
childhood trauma. (§ 1170, subd. (b)(6)(A) & (B).) After sentencing, defense
counsel requested that a psychologist evaluate Rubalcaba’s mental state “to
prepare a [section] 288.1 report.”5 The court granted defense counsel’s
request, and permitted “the family if they wish to retain a psychologist in
order to obtain some sort of report that they feel might assist [ ] Rubalcaba
with respect to his housing at the Department of Corrections.”
5 Section 288.1 provides: “Any person convicted of committing any lewd
or lascivious act including any of the acts constituting other crimes provided
for in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years shall not have his or her sentence
suspended until the court obtains a report from a reputable psychiatrist , . . .
who meets the standards set forth in Section 1027, as to the mental condition
of that person.”
16
The psychologist who evaluated Rubalcaba provided this diagnostic
assessment: “Neurocognitive Disorder. He shows ongoing difficulty in
environments with multiple stimuli. He has difficulty holding new
information in mind. For example, he was unable to recall his social security
number. According to his family input, he would remember the last four
numbers, but had difficulty remembering the beginning of the sequence. He
also showed difficulty with executive functioning, that is, planning and
decision making. He developed a routine of certain habitual behaviors to give
him some structure. He had difficulty completing multi-stage projects,
including difficulty with multitasking. As noted above, the etiology of this
disorder is difficult to pinpoint. . . . Early development sequelae on the part of
the defendant are not accessible for review at this point.” (Italics added.)6
The defense had no occasion or opportunity to develop and present evidence
of any psychological, physical, or childhood trauma that Rubalcaba might
have experienced, because the statutory amendments were not in place at the
time of his sentencing.
Because the record does not clearly establish how the court would have
balanced the sentencing factors with the limitations imposed under Senate
6 The psychologist also stated: “Results and data developed from the
mental status examination point to a diagnostic impression of Neurocognitive
Disorder. There are times where this disorder may be labeled dementia.
Although dementia is the customary term for disorders linked to
degenerative dementias, they usually affect older adults. The term
Neurocognitive Disorder is widely used and often preferred for conditions
affecting younger individuals. The Neurocognitive Disorder is somewhat
broader than the term dementia. The etiology in this case can be difficult to
pinpoint. There is also the issue of a relatively less than robust educational
journey for the defendant. He denied that he had any major head injuries
though he did acknowledge that he had been hit in the face by a cow which
resulted in loss of teeth and loss of consciousness.”
17
Bill No. 567 and amended section 1170, resentencing is warranted; remand is
not an idle act. (See People v. Buycks (2018) 5 Cal.5th 857, 893. 896.) We
therefore remand the matter to the trial court for resentencing consistent
with the current version of section 1170, subdivision (b). (See Lopez, supra,
78 Cal.App.5th at p. 468.)
IV. Fines, Fees and Assessments
Rubalcaba contends: “The trial court imposed the following legal
financial obligations at sentencing: a $10,000 restitution fine, a $200 court
security fee, and a $150 [criminal conviction] assessment. . . . Trial counsel
did not ask the court to consider [his] ability to pay in setting these fees, and
the trial court made no attempt to consider his ability to pay.”7 He relies on
People v. Dueñas (2019) 30 Cal.App.5th 1157 for his claim that such a
determination is constitutionally required. He contends that an ability to pay
determination is also required under the Eighth Amendment to the federal
Constitution, the excessive fines clause, and California’s constitutional
guarantee of equal protection.
The California Supreme Court is presently considering whether courts
must evaluate a defendant’s ability to pay before imposing or executing fines,
fees and assessments and which party bears the burden of proof. (People v.
Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)
7 The parties point out that the trial court orally imposed a $15,000
restitution fine and a $100 criminal assessment. Penal Code section 1202.4,
subdivision (b)(1) states that the maximum restitution fine is $10,000 and
Government Code section 70373, subdivision (a)(1) states that the criminal
conviction assessment is $30 for each felony. The trial court erred in its oral
pronouncement but the abstract of judgment and amended minute order
correctly reflect that the restitution fine is $10,000 and the assessment is $30
per count.
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Because we vacate Rubalcaba’s sentence and remand the matter for
resentencing, we need not reach the merits of these arguments; rather, he
will have an opportunity to challenge the fines, fees and assessments on
remand.
DISPOSITION
The convictions are affirmed. We vacate the sentence and remand the
matter for the trial court to resentence Rubalcaba in a manner consistent
with this opinion, prepare a new abstract of judgment and forward a certified
copy to the Department of Corrections and Rehabilitation.
O’ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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