People v. Aparicio CA4/2 ( 2024 )

Filed 10/2/24 P. v. Aparicio CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083407
v. (Super. Ct. No. RIF1902575)
JACQUELINE APARICIO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge.
Affirmed.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Jacqueline Aparicio appeals the sentence imposed after
this court affirmed her judgment of conviction, vacated her sentence in part, and
remanded the matter for resentencing. Appointed counsel has filed a brief under the
authority of People v. Wende (1979) 25 Cal.3d 436, requesting this court to conduct an
independent review of the record to determine whether there are any arguable issues on
appeal. In addition, defendant has had an opportunity to file a supplemental brief with
this court and has not done so. After reviewing the record, we find no arguable error that
would result in a disposition more favorable to defendant and affirm.
II.
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FACTUAL AND PROCEDURAL BACKGROUND
Defendant and 10 cohorts believed a residential property had a large amount of
cocaine and decided to burgle it around 3:00 a.m. They all wore ski masks and some of
them carried guns, one of which was an AK-47. Defendant was supposed to be the
lookout, but she ended up taking items from the property. (Aparicio I, supra, E077421.)
A.N. lived in the “side house” on the property with her nine-year-old daughter.
Two of the burglars broke a window and entered the side house and began threatening to
rape A.N.’s daughter if she did not tell them “where the money was.” (Aparicio I, supra,
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We take judicial notice of our prior opinion from defendant’s first appeal in case
No. E077421. (See People v. Aparicio (Feb 23, 2023, E077421) [nonpub. opn.]
(Aparicio I).) The factual background is taken from Aparicio I.
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E077421.) They continued threatening A.N. with raping her daughter and making A.N.
watch. The burglars put guns to the heads of A.N. and her daughter and forced them to
walk to the “main house” on the property. (Aparicio I, supra, E077421.)
The burglars gathered everyone they found on the property and forced them to a
bedroom in the main house, where they stayed for two to three hours. The burglars
ransacked the house and kept yelling at the victims to tell them “where the safe was.”
(Aparicio I, supra, E077421.)
The burglars forced M.N., who was pregnant, and her eight and three-year-old
sons onto a mattress. One of the burglars threatened “to take the little girls and kill
them.” (Aparicio I, supra, E077421.) One of them grabbed M.N.’3 three-year-old son
and began a “tug-o-war” with M.N. over him. The burglar then threatened to “take him”
if the victims did not say where the safe was. (Aparicio I, supra, E077421.) M.N. and
her children were terrified, “hysterical,” crying, and screaming, M.N. pled with the
burglars not to hurt her boys. (Aparicio I, supra, E077421.)
The burglars grabbed M.N.’s three-year-old from her, held him by his ankles, and
shook him. M.N. kept yelling to “leave the kids alone.” (Aparicio I, supra, E077421.)
The burglars then hit M.N., and then hit her husband and her 17-year-old nephew in the
head with the butt of their rifles with “full-on strength.” (Aparicio I, supra, E077421.)
One of the burglars told the nephew, “If you guys don’t start telling me, I’m gonna start
taking the kids one by one.” (Aparicio I, supra, E077421.)
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The burglars then told the victims to stay put and that “if you guys move, we’ll
shoot.” (Aparicio I, supra, E077421.) The burglars stole M.N.’s truck, but she did not
try to stop them because she was caring for her children and did not care what they took.
(Aparicio I, supra, E077421.)
When the burglars were gone, the victims remained “panicked and scared.”
(Aparicio I, supra, E077421.) A.N. did not call the police because she feared retaliation.
A few hours later, M.N. reported that his truck had been stolen, but he did not report the
burglary because he was “very scared of what had happened” and “there were so many
weapons and you never know what could happen.” (Aparicio I, supra, E077421.)
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A jury found defendant guilty of kidnapping to commit robbery (Pen. Code,
§ 209, subd. (b)(1); counts 1-3); false imprisonment by violence or menace (§§ 236, 237,
subd. (a); counts 4-5); first degree burglary (§§ 459, 460, subd. (a); count 6); assault with
a firearm (§ 245, subd. (a)(2); counts 7-8); carjacking (§ 215, subd. (a); count 9); criminal
threats (§ 422; counts 10-11); and first degree robbery (§§ 211, 212.5, subd. (a); counts
12-15). With respect to all of the counts except for counts 7 and 8, the jury found true the
allegation that defendant participated as a principal knowing another principal was armed
with a firearm, where the arming was not an element of the offense (§ 12022, subd.
(a)(1)).
The trial court found true that defendant had previously been convicted of assault
with a deadly weapon (§ 245, subd. (a)(1)), which constituted a strike prior (§§ 667,
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All future statutory references are to the Penal Code unless otherwise stated.
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subds. (c), (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony (§ 667, subd. (a)). The
trial court sentenced defendant to a determinate term of 40 years, eight months, followed
by an indeterminate term of 42 years to life.
Defendant subsequently appealed. She argued substantial evidence did not
support her criminal threat conviction and that the matter must be remanded for
resentencing under newly enacted legislation. (Aparicio I, supra, E077421.) We
affirmed the judgment of conviction but vacated defendant’s sentence and remand the
matter for a full resentencing hearing. (Ibid.)
The resentencing hearing was held on March 1, 2024. Following argument by the
parties, the trial court sentenced defendant to the same term it had previously imposed: a
determinate term of 40 years, eight months, followed by an indeterminate term of 42
years to life. The court explained its ruling, in pertinent part, as follows: “The court
again indicated the court is aware of its discretion. The court is also—I will consider any
and all factors that is required, including any potential heavyweight, lightweight issues,
potential duress, mental health issues, racial impact issues. The court is considering all of
these factors in its decision with respect to the conduct in this case. [¶] The court does
feel after listening to the evidence in this case that this was an egregious crime. And I do
find her to be a major participant and an active participant in this crime that was done to a
number of individuals in that home. The terror that was inflicted on the individuals based
on the facts and circumstances of this crime, the court already selecting the midterm, the
court still feels in exercising its discretion that the primary count should be Count 12 and
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will continue to impose its 12 years plus one, that’s six times two plus one for the
enhancement. [¶] All other findings and sentencing the court is going to reiterate from
the previous sentencing hearing and impose that same sentence and indicate for the
record that if given discretion back then or now the court still arrives at the same decision
as far as the sentencing. [¶] And I am also going to direct the court assistant to amend
the abstract to reflect the robbery counts were first degree and therefore should reflect the
proper sentencing triad under Penal Code Section 213(a)(1)(1).” Defendant timely
appealed.
III.
DISCUSSION
After defendant appealed, upon her request, this court appointed counsel to
represent her. Upon examination of the record, counsel has filed a brief under the
authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386
U.S. 738, setting forth a statement of the case, a summary of the facts and potential
arguable issue and requesting this court to conduct an independent review of the record.
Counsel has identified the potential issue of whether the trial court abused its discretion
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with its sentencing choices.
We offered defendant an opportunity to file a personal supplemental brief, but she
has not done so.
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We agree with counsel that the Wende procedure is appropriate in this case, and
People v. Delgadillo (2022) 14 Cal.5th 216 does not apply.
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An appellate court conducts a review of the entire record to determine whether the
record reveals any issues which, if resolved favorably to defendant, would result in
reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-
442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386
U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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