People v. Depaz CA2/3 ( 2024 )


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  • Filed 10/17/24 P. v. Depaz CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                                                  B333878
    Plaintiff and Respondent,                           Los Angeles County
    Super. Ct. No. VA150220
    v.
    ELMER ALFREDO DEPAZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of
    Los Angeles County. Roger Ito, Judge. Affirmed.
    James M. Crawford, under appointment by the Court
    of Appeal, for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters,
    Chief Assistant Attorney General, Susan Sullivan Pithey,
    Assistant Attorney General, Idan Ivri and Melanie Dorian,
    Deputy Attorneys General, for Plaintiff and Respondent.
    _________________________
    A jury convicted Elmer Alfredo Depaz of numerous
    sex crimes against his minor daughter. The court sentenced
    Depaz to 32 years in prison, which included an upper-term
    sentence on one of the offenses. Depaz appealed, arguing
    he was entitled to be resentenced under the newly enacted
    Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567).
    In July 2022, a different panel of this court affirmed
    Depaz’s convictions but remanded the case for resentencing.
    (People v. Depaz (July 25, 2022, B309275) [nonpub. opn.]
    (Depaz I).) We held the trial court erred by imposing an
    upper-term sentence based on two aggravating circumstances
    that were not found true by a jury. We concluded a jury would
    have found true only one of the two aggravating circumstances:
    that Depaz used a position of trust to commit the offense.
    Because we were not certain the court would have imposed
    the upper term based solely on that circumstance, we remanded
    the case for resentencing.
    On remand, the trial court again imposed an upper-term
    sentence, citing the fact that Depaz used a position of trust to
    commit the offense. On appeal, Depaz argues the court erred
    because the aggravating circumstance had not been established
    in accordance with the procedure created by Senate Bill 567.
    Although we agree with Depaz that the court erred, we conclude
    the error was harmless. Accordingly, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    1.    Depaz’s crimes and the first sentence
    The People charged Depaz with four counts of committing
    a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a);
    2
    counts 1, 7, 8, 9),1 one count of continuous sexual abuse of a child
    under age 14 (§ 288.5, subd. (a); count 3), two counts of sexual
    penetration by use of force on a child over the age of 14 (§ 289,
    subd. (a)(1)(C); counts 4, 6), and one count of aggravated sexual
    assault of a child under the age of 14 (§ 269, subd. (a)(5); count 5).
    (Depaz I.)
    At trial, the prosecutor presented evidence showing the
    following. Depaz’s daughter, J.D., was born in the United States.
    When J.D. was around two years old, her parents broke up and
    she moved to Mexico with her mother. About eight years later,
    J.D. moved back to the United States to live with Depaz and
    his wife. (Depaz I.)
    J.D.’s mother and siblings remained in Mexico, and
    Depaz forbade J.D. from visiting them. However, J.D. frequently
    communicated with her family living in Mexico. She also visited
    a maternal aunt who lived in the United States. (Depaz I.)
    J.D. was initially afraid to sleep on her own in Depaz’s
    home, so Depaz agreed to sleep next to her on Friday nights.
    One night when J.D. was 11 years old, Depaz was lying next
    to her in bed and put his fingers between her labia underneath
    her underwear. He did this three more times over the next
    few years under similar circumstances. (Depaz I.)
    When J.D. was 14 years old, she and Depaz had an
    argument. Depaz tried to hug J.D. and pull up her shirt, but
    she fought back. Depaz touched J.D.’s breast and put his finger
    between her labia. J.D. told Depaz he was not supposed to
    act that way because he was her father. Depaz replied that
    1     Undesignated statutory references are to the Penal Code.
    3
    if he had wanted to hurt her, he would have done so already.
    J.D. was scared. (Depaz I.)
    Another time, when J.D. was around 15 years old, Depaz
    tried to hug her from behind. J.D. dropped to the floor in an
    attempt to escape. Depaz held J.D. down, lifted up her shirt,
    and grabbed her breasts. Depaz put his mouth on one of J.D.’s
    breasts and inserted his finger into her vagina. (Depaz I.)
    When J.D. was 16 years old, Depaz came into her room
    and forced her onto the floor. He pulled up her shirt, put his
    mouth on her breast, and inserted his finger into her vagina.
    J.D. started screaming and crying. (Depaz I.)
    J.D. told her friends about the incident, and they convinced
    her to report it to the police. One of the friends accompanied J.D.
    to the police station, where she reported Depaz’s abuse. Depaz’s
    DNA was present on the shirt J.D. was wearing, as well as
    a sample taken from her breast. J.D. also had a red mark
    on her breast. (Depaz I.)
    At the end of the prosecution’s case-in-chief, the court
    dismissed count 5. The jury convicted Depaz of the other counts.
    (Depaz I.)
    The court sentenced Depaz to an aggregate term of
    32 years, consisting of the upper term of 16 years on count 3,
    the middle term of 8 years on count 4, and the middle term of
    8 years on count 6. The court explained that it selected the upper
    term on count 3 because “ ‘the victim was particularly vulnerable.
    The defendant took advantage of a position of trust. . . . [¶]
    . . . For years this young girl was abused by her natural father
    and he isolated her from the family in Mexico that could have
    provided some degree of support or could have provided some
    degree of clarification as to where she should go or what she
    4
    should do. And in my estimation, this isolation was part and
    parcel of that abuse.’ ” (Depaz I.)
    2.     The first appeal
    Depaz appealed his convictions on the ground that the
    trial court erred by denying his Batson/Wheeler motion.2 While
    the appeal was pending, the Legislature passed Senate Bill 567,
    which amended section 1170, subdivision (b) (section 1170(b))
    to restrict a trial court’s discretion to impose an upper-term
    sentence. In response to the new legislation, Depaz filed
    a supplemental brief urging us to remand the case for the
    trial court to resentence him under the amended version
    of section 1170(b). (Depaz I.)
    We rejected Depaz’s Batson/Wheeler argument and
    affirmed his convictions. On the sentencing issue, we determined
    Depaz was entitled to the retroactive benefits of Senate Bill 567,
    and the trial court failed to comply with the amended version
    of section 1170(b). Specifically, we concluded the trial court
    imposed an upper-term sentence based on aggravating
    circumstances that had not been established in accordance
    with the statute. (Depaz I.)
    We then applied a two-step harmless error standard to
    determine whether the trial court’s error required us to remand
    the case for resentencing.3 At the first step, we asked whether,
    beyond a reasonable doubt, a jury applying the same standard
    2     Batson v. Kentucky (1986) 
    476 U.S. 79
    ; People v. Wheeler
    (1978) 
    22 Cal.3d 258
    .
    3    As we explain later in this opinion, the California Supreme
    Court subsequently disapproved of our approach.
    5
    would have found true at least one of the two aggravating
    circumstances on which the trial court relied. We were
    not certain, beyond a reasonable doubt, that a jury would have
    found true that the victim was particularly vulnerable. However,
    we were sufficiently certain a jury would have found that Depaz
    used a position of trust to commit the offense. (Depaz I.)
    At the second step of our harmless error analysis, we
    asked whether it was reasonably probable the court would
    have imposed the same sentence had it relied only on the
    position-of-trust aggravating circumstance. We concluded
    it was not sufficiently clear the trial court would have done so.
    Accordingly, we remanded the case for resentencing in
    accordance with the amended version of section 1170(b).
    (Depaz I.)
    3.     Resentencing
    On remand, the trial court again sentenced Depaz to an
    aggregate term of 32 years, including the upper term of 16 years
    on count 3. The court stated it selected the upper term based
    solely on the fact that Depaz used a position of trust to commit
    the offense. The court noted that, in convicting Depaz of
    continuous sexual abuse of a child, the jury must have
    concluded he used a position of trust.
    Depaz timely appealed.
    DISCUSSION
    Depaz argues the trial court violated his constitutional
    rights by imposing an upper-term sentence based on an
    aggravating circumstance that was not established in accordance
    with section 1170(b).
    Effective January 1, 2022, section 1170(b) states “the court
    shall, in its sound discretion, order imposition of a sentence not
    6
    to exceed the middle term,” 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).) A court also “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).) If a trial court relies on aggravating
    circumstances to impose an upper-term sentence that were
    not established in accordance with section 1170(b), the court
    violates the defendant’s rights under the Sixth Amendment
    to the United States Constitution. (See People v. Lynch (2024)
    
    16 Cal.5th 730
    , 742–743 (Lynch).)
    On remand in this case, the trial court imposed the
    upper term on count 3. The court cited a single aggravating
    circumstance to support its decision to impose the upper-term
    sentence—that Depaz took advantage of a position of trust to
    commit the offense. (See Cal. Rules of Court, rule 4.421(a)(11)
    [that the “defendant took advantage of a position of trust
    or confidence to commit the offense” is a circumstance in
    aggravation].) Depaz did not stipulate to that circumstance,
    it was not found true beyond a reasonable doubt at trial by
    the jury or by the judge in a court trial, nor does it constitute
    a prior conviction based on a certified record of conviction.
    (See § 1170, subd. (b)(2), (3).) Accordingly, the court’s reliance
    on that circumstance to impose the upper-term sentence on
    7
    count 3 violated section 1170(b) and Depaz’s Sixth Amendment
    rights.4 (See Lynch, supra, 16 Cal.5th at pp. 742–743.)
    Although the trial court erred in this respect, that fact
    alone does not require reversal. In Lynch, supra, 
    16 Cal.5th 730
    ,
    the California Supreme Court held a trial court’s reliance on
    aggravating circumstances that were not established in
    accordance with the current version of section 1170(b) is subject
    to a harmless error analysis. The high court held Chapman
    v. California (1967) 
    386 U.S. 18
     provides the proper standard
    of review in such cases, and the reviewing court must apply
    that standard to every aggravating circumstance on which
    the trial court relied. (Lynch, at pp. 755–757.) Accordingly,
    reversal is required unless the reviewing court concludes “beyond
    a reasonable doubt that a jury, applying that same standard,
    would have found true all of the aggravating facts upon which
    the court relied to conclude the upper term was justified, or
    that those facts were otherwise proved true in compliance with
    the current statute.” (Id. at p. 743.)
    To determine whether this standard has been met,
    the reviewing court “ ‘ “examine[s] what the jury necessarily
    did find and ask[s] whether it would be impossible, on the
    4      We reject the Attorney General’s contention that the
    trial court was obligated to accept the position-of-trust
    aggravating circumstance under the law of the case doctrine.
    Our determination that a jury would have found the
    circumstance to be true was not a purely legal issue. Instead,
    it involved a review of the trial evidence and the inferences
    flowing from it. The law of the case doctrine does not apply
    under these circumstances. (See People v. Campbell (2023)
    
    98 Cal.App.5th 350
    , 371–372.)
    8
    evidence, for the jury to find that without also finding the missing
    fact as well.” [Citation.] In other words, if “ ‘[n]o reasonable
    jury’ ” would have found in favor of the defendant on the missing
    fact, given the jury’s actual verdict and the state of the evidence,
    the error may be found harmless beyond a reasonable doubt.’
    [Citation.] [The reviewing court] may also find the omission
    harmless if [it] can conclude beyond a reasonable doubt
    ‘that the omitted [fact] was uncontested and supported by
    overwhelming evidence.’ ” (Lynch, supra, 16 Cal.5th at p. 775.)
    Applying the Lynch standard here, we conclude the
    trial court’s failure to comply with the current version of
    section 1170(b) was harmless.5 The trial court relied on a single
    aggravating circumstance to impose the upper term on count 3
    —that Depaz used a position of trust to commit the offense.
    Accordingly, the error requires reversal unless we conclude
    it is beyond a reasonable doubt that a jury applying the same
    standard would have found that circumstance to be true.
    We considered this precise issue in Depaz’s first appeal,
    despite applying a different harmless error standard. We
    concluded, beyond a reasonable doubt, a jury would have found
    5      The procedural posture of this case is not identical to
    Lynch. In Lynch, the trial court sentenced the defendant under
    the prior version of 1170(b), which did not require submission of
    aggravating circumstances to a jury. (Lynch, supra, 16 Cal.5th
    at pp. 744–745.) Here, the trial court resentenced Depaz well
    after the amendments to section 1170(b) had gone into effect.
    Nevertheless, we do not find this distinction to be meaningful
    to the issues Depaz raises on appeal, nor do the parties suggest
    any reason why it would be. Accordingly, we will apply the
    Lynch harmless error standard to determine whether remand
    for resentencing is required.
    9
    true under the same standard that Depaz used a position of trust
    to commit the continuous sexual abuse offense. We explained
    that, unlike some aggravating circumstances, “determining
    whether Depaz used a position of trust does not require an
    imprecise quantitative or comparative evaluation of the facts.
    The undisputed evidence . . . shows Depaz is J.D.’s biological
    father and that she was under his care when he continuously
    sexually abused her. Further, J.D. testified that Depaz
    committed the abuse while lying in her bed at night after she
    expressed a fear of sleeping alone. The jury clearly believed
    this testimony in convicting Depaz of continuous sexual abuse,
    and Depaz does not contend he could have presented evidence
    or otherwise developed the record in such a way as to show he
    did not take advantage of a position of trust. On this record,
    it is beyond a reasonable doubt that the jury would have found
    Depaz used a position of trust as J.D.’s father to commit the
    offense.” (Depaz I.)
    Our analysis in the first appeal is equally applicable here.
    It remains true that the record contains overwhelming evidence
    that Depaz used his position as J.D.’s father and primary
    caregiver to continuously sexually abuse her. We can conceive
    no possible way a reasonable jury could reject this evidence
    while also finding Depaz committed the offense. Nor does
    Depaz contend he could have presented evidence or otherwise
    developed the record in such a way as to rebut that evidence.
    On this record, it is beyond a reasonable doubt that a jury would
    have found—beyond a reasonable doubt—that Depaz used a
    position of trust to commit the continuous sexual abuse. (See,
    e.g., People v. Jones (1992) 
    10 Cal.App.4th 1566
    , 1577 [“the fact
    that defendant was the children’s biological father . . . clearly
    10
    supports the finding that defendant used a position of trust
    and confidence, that of a legal parent, to commit the offense”];
    People v. Clark (1992) 
    12 Cal.App.4th 663
    , 666 [a stepfather who
    was entrusted with caring for the victim was placed in a position
    of trust and confidence regarding the child].) Accordingly, the
    trial court’s reliance on that aggravating circumstance to impose
    an upper-term sentence on count 3 was harmless and does not
    require reversal.
    We reject Depaz’s passing contention that the trial court’s
    reliance on an improper aggravating circumstance resulted in
    an unauthorized sentence that is not amenable to a prejudice
    analysis. The California Supreme Court rejected the same
    argument in Lynch. As the high court explained in that case,
    the unauthorized sentence rule is an exception to the waiver
    doctrine that “permits a challenge to an unauthorized sentence
    on appeal even if the defendant failed to object below. [Citation.]
    There is no issue of forfeiture or waiver here. The new statute
    went into effect after [the defendant’s] trial and sentencing.
    The sentence was authorized when it was imposed. It continues
    to be permissible under the current statute so long as the
    aggravating facts are either stipulated to by the defendant
    or found true by a jury beyond a reasonable doubt. . . . [The
    defendant’s] reliance on precedent governing unauthorized
    sentences is misplaced.” (Lynch, supra, 16 Cal.5th at p. 751.)
    The same is true here. As in Lynch, there is no issue of
    forfeiture or waiver. Nor did the trial court impose a sentence
    that would be unlawful under any circumstances. (See People
    v. Scott (1994) 
    9 Cal.4th 331
    , 354 [“a sentence is generally
    ‘unauthorized’ where it could not lawfully be imposed under
    any circumstance in the particular case”].) To the contrary,
    11
    section 1170(b) granted the court discretion to impose the same
    sentence—including the upper term on count 3—so long as it
    did so based on aggravating circumstances that were established
    in accordance with the statute. (See § 1170, subd. (b)(1), (2).)
    The concept of an “unauthorized sentence” simply does not apply
    under these circumstances. (See Lynch, supra, 16 Cal.5th at
    p. 751.)
    DISPOSITION
    We affirm the judgment.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    EGERTON, J.
    We concur:
    EDMON, P. J.
    ADAMS, J.
    12
    

Document Info

Docket Number: B333878

Filed Date: 10/17/2024

Precedential Status: Non-Precedential

Modified Date: 10/17/2024