People v. Sepulveda CA6 ( 2024 )

Filed 2/9/24 P. v. Sepulveda CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051142
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 18CR008296)
v.
AARON EUGENE SEPULVEDA,
Defendant and Appellant.
I. INTRODUCTION
A jury convicted defendant Aaron Eugene Sepulveda of the following offenses:
aggravated sexual assault of a child under the age of 14 by rape (Pen. Code, §§ 269,
subd. (a)(1), 261, subd. (a)(2); count 1),1 forcible rape of a child under the age of 14
(§ 261, subd. (a)(2); count 2), two counts of forcible lewd act on a child under the age of
14 (§ 288, subd. (b)(1); counts 3 & 9), sexual intercourse with a child aged 10 or younger
(§ 288.7, subd. (a); count 4), three counts of lewd act on a child under the age of 14
(§ 288, subd. (a); counts 5, 13 & 14), sodomy with a child aged 10 or younger (§ 288.7,
subd. (a); count 7), aggravated sexual assault of a child under the age of 14 by forcible
oral copulation (§ 269, subd. (a)(4), former § 288a, subd. (c)(2); count 8), and two counts
1
All further statutory references are to the Penal Code.
of oral copulation with a child aged 10 or younger (§ 288.7, subd. (b); counts 10 & 12).2
The jury found true allegations that defendant personally inflicted great bodily injury
(§ 12022.8) and personally inflicted bodily harm upon a child under the age of 14
(§ 667.61, subds. (d)(7) & (j)(1)) regarding counts 1 through 3. The jury also found true
the allegation that defendant personally inflicted bodily harm (§ 288, subd. (i)) regarding
count 5.
The trial court sentenced defendant to prison for life without the possibility of
parole, consecutive to 55 years to life, consecutive to eight years. The sentence was
calculated as follows: life without the possibility of parole on count 2, a consecutive term
of 25 years to life on count 7, a consecutive term of 15 years to life on count 8, a
consecutive term of 15 years to life on count 12, and consecutive terms of six years on
count 13 and two years on count 14. Pursuant to section 654, the trial court imposed and
stayed the punishment on the following counts: life without the possibility of parole on
counts 1 and 3, 25 years to life on count 4, seven years to life on count 5, nine years on
count 9, and 15 years to life on count 10.
In defendant’s first appeal from the judgment, he asserted among other contentions
that this matter must be remanded for resentencing so the trial court may exercise its
discretion under recently amended section 654 to determine which counts to stay. The
Attorney General conceded the issue. Accordingly, this court reversed the judgment and
remanded the matter for the trial court to apply the amended version of section 654 at
resentencing, to correct the sentence on count 9 by selecting the eight-year middle term
(§ 288, subd. (b)(1)), and to correct any errors in the abstract of judgment. (People v.
Sepulveda (July 20, 2022, H049107) [nonpub. opn.].) This court’s opinion stated that
upon remand, “the parties may address in the first instance whether amended section 654
applies to, for example, count 2,” noting a recent Court of Appeal decision that held a
2
The jury found defendant not guilty of two counts of forcible lewd act on a child
under the age of 14 (§ 288, subd. (b)(1); counts 6 & 11).
2
trial court does not have discretion under amended section 654 to suspend or stay a
sentence imposed under section 667.61.
At resentencing, the trial court corrected the sentence concerning count 9 and
imposed the same aggregate sentence, determining that amended section 654 could not
be applied to sentences imposed under section 667.61. Defendant contends the trial
court erred in finding that section 654 may not be applied to sentences imposed under
section 667.61. The Attorney General concedes remand for resentencing is appropriate.
We accept the Attorney General’s concession and remand for resentencing to permit the
trial court to exercise its discretion under amended section 654.
II. BACKGROUND
Defendant committed numerous sexual offenses against his stepdaughter, who was
under the age of 10 at the time of the charged offenses.3 Further exposition of the facts
relating to the charged offenses is not necessary to resolve the issue raised in this appeal.
At the time of defendant’s initial sentencing hearing, section 654, subdivision (a)
provided in relevant part: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, former subd. (a).) Effective January 1,
2022, section 654, subdivision (a) was amended to read in relevant part: “An act or
omission that is punishable in different ways by different provisions of law may be
punished under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a), as amended by Stats. 2021,
ch. 441, § 1.) “Previously, under section 654, ‘the sentencing court was required to
impose the sentence that “provides for the longest potential term of imprisonment” and
stay execution of the other term. [Citation.] . . . [S]ection 654 now provides the trial
3
This court granted defendant’s request to take judicial notice of the record
concerning defendant’s initial appeal, case No. H049107.
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court with discretion to impose and execute the sentence of either term, which could
result in the trial court imposing and executing the shorter sentence rather than the longer
sentence.’ [Citation.]” (People v. Jones (2022) 79 Cal.App.5th 37, 45.) Thus, in
defendant’s initial appeal, this court agreed with defendant that this matter must be
remanded for resentencing to apply amended section 654.
At resentencing, defendant asserted that the trial court had the discretion to apply
amended section 654 to all counts that involved the same acts, including staying the
sentences for counts 1 through 3, which were imposed pursuant to section 667.61. Thus,
defendant asked the trial court to act as follows: “I am asking the [c]ourt, with respect to
the grouping of [c]ounts 1, 2, 3, 4, and 5, which are all the same act, to impose a sentence
of [seven years] to life for [c]ount 5, and to stay [life without the possibility of parole] for
[c]ounts 1, 2, and 3, . . . and the sentence of 25-to-life for [c]ount 4, all stayed, pursuant
to amended [section] 654 . . . .” Defendant acknowledged that at the time, only two
published Court of Appeal decisions existed on the question of the applicability of
amended section 654 to sentences imposed under section 667.61, and both were contrary
to his position. However, defendant nonetheless contended that amended section 654
could apply to counts that involved section 667.61 sentences.
The trial court determined it had no authority under section 667.61 to grant
defendant’s request, citing the two Court of Appeal decisions contrary to defendant’s
position. The trial court corrected the sentence on count 9 to the middle term of eight
years, which was stayed, but the trial court did not grant defendant’s requested relief
concerning counts 1 through 5 and defendant’s total term remained the same: life
without the possibility of parole, consecutive to 55 years to life, consecutive to eight
years. This appeal followed.
III. DISCUSSION
“ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court.” ’ [Citation.] ‘ “[A] court that is unaware
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of its discretionary authority cannot exercise its informed discretion.” ’ [Citation.]
‘Generally, when the record shows that the trial court proceeded with sentencing on the
erroneous assumption it lacked discretion, remand is necessary so that the trial court may
have the opportunity to exercise its sentencing discretion at a new sentencing hearing.’
[Citation.]” (People v. Czirban (2021) 67 Cal.App.5th 1073, 1096–1097.) When a
statute retroactively supplies a trial court with sentencing discretion, remand is required
unless the record provides “a clear indicator of how the trial court would exercise its new
discretion . . . .” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1033 (Dryden).)
The “One Strike” law, section 667.61, provides that “[a] person who is convicted
of an offense specified in subdivision (c) . . . upon a victim who is a child under 14 years
of age under one or more of the circumstances specified in subdivision (d) or under two
or more of the circumstances specified in subdivision (e), shall be punished by
imprisonment in the state prison for life without the possibility of parole.” (§ 667.61,
subd. (j)(1).) Defendant’s convictions for counts 1 through 3 carried mandatory
sentences of life without the possibility of parole under section 667.61. Counts 1 through
5 were all alleged to have occurred “[o]n or between August 26, 2018 through August 27,
2018,” and at the initial sentencing hearing, defense counsel argued that defendant’s
conduct in counts 1 through 5 should be treated as the same act for purposes of
section 654. Accordingly, at defendant’s initial sentencing hearing the trial court
imposed and stayed the sentences for counts 1 (life without the possibility of parole),
3 (life without the possibility of parole), 4 (25 years to life), and 5 (seven years to life)
under section 654, imposing the sentence of life without the possibility of parole for
count 2. On resentencing, the trial court maintained the same sentences for counts 1
through 5, finding that section 654 did not permit it to stay the life without the possibility
of parole sentences for counts 1 through 3 in favor of the seven-years-to-life sentence on
count 5, as defendant requested.
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Section 667.61, subdivision (h) states: “Notwithstanding any other law, probation
shall not be granted to, nor shall the execution or imposition of sentence be suspended
for, a person who is subject to punishment under this section.” Based on this language,
two Court of Appeal decisions issued before defendant’s resentencing in this case
concluded that section 654 does not permit a trial court to stay a sentence imposed under
section 667.61 in favor of a shorter sentence not mandated under section 667.61.
(People v. Caparaz (2022) 80 Cal.App.5th 669, 690 (Caparaz) [trial court “has no
discretion to suspend or stay the One Strike law sentence for count 4 in favor of the
shorter non-One Strike law sentence for count 3 notwithstanding the amendment to
section 654, and there is no need to remand for resentencing”]; People v. Bolanos (2023)
87 Cal.App.5th 1069, 1086 [agreeing with Caparaz that section 667.61, subdivision (h)
“means section 654 does not apply to the One Strike law”].) However, after defendant’s
resentencing in this case, the Court of Appeal in People v. Govan (2023) 91 Cal.App.5th
1015, 1035 (Govan) held that “section 667.61, subdivision (h), does not divest the trial
court of discretion under section 654 to stay a sentence imposed under the one strike
law.” The court in Govan held: “Reasonably read, section 667.61, subdivision (h),
prohibits only probation and not a stay under section 654. The language in
subdivision (h) is unique to a grant of probation. Moreover, section 667.61,
subdivision (h), is intended to increase the punishment for forcible sex offenses, whereas
section 654 is intended to ensure the punishment for an offense is commensurate with a
defendant’s culpability where two crimes arise from a single, indivisible course of
conduct. Because the one strike law does not preclude a stay under section 654, Govan
is entitled to resentencing under amended section 654.” (Id. at p. 1020, fn. omitted.)
The Attorney General concedes that under Govan, which was decided after
defendant’s resentencing hearing, remand for resentencing is appropriate to permit the
trial court to consider whether to grant defendant’s request to stay the sentence on counts
1 through 3 in favor of the shorter sentence on count 5. Moreover, the Attorney General
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concedes that the record does not clearly indicate the trial court would have imposed the
same sentence if it had recognized its discretion under amended section 654.
We accept the Attorney General’s concession that under Govan, the One Strike
law did not prohibit the trial court from staying the sentences for counts 1 through 3
under amended section 654 in favor of the shorter sentence for count 5, as defendant
requested. The recent amendments to section 654 were passed well after the One Strike
law went into effect. Despite the language of section 667.61, subdivision (h) stating that
“the execution or imposition of sentence” shall not be “suspended,” the Legislature later
expanded sentencing relief under amended section 654, allowing the trial court to impose
sentence “under either of such provisions” when an act or omission is punishable in
different ways by different provisions of law. (§ 654, subd. (a).) If the Legislature
intended section 667.61, subdivision (h) to carve out an exception to section 654, the
Legislature had the opportunity to so state when it amended section 654. We therefore
accept the Attorney General’s concession and follow Govan’s holding that “the one strike
law does not preclude a stay under section 654 . . . .” (Govan, supra, 91 Cal.App.5th at
p. 1020.)
At the initial sentencing hearing, the trial court stated that “defendant’s conduct
was egregious, one of the worst I have seen in 30 years in the criminal justice field,” and
therefore defendant “must be held accountable for his conduct.” At resentencing, the trial
court declined defense counsel’s request to impose the sentence for count 9 and stay the
sentence as to counts 8 and 10 under section 654, “based upon the extreme conduct in
this case . . . .” Nonetheless, the trial court did not have the opportunity to exercise its
discretion as to the applicability of section 654 to counts 1 through 5. Because the
Attorney General concedes that the record does not provide a “clear indicator of how the
trial court would exercise its new discretion,” defendant is entitled to resentencing under
amended section 654. (Dryden, supra, 60 Cal.App.5th at p. 1033.)
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IV. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for full
resentencing under current law.
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BAMATTRE-MANOUKIAN, J.
WE CONCUR:
GREENWOOD, P.J.
WILSON, J.
People v. Sepulveda
H051142