People v. Guzman CA4/1

Filed 12/1/22 P. v. Guzman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079867
Plaintiff and Respondent,
v. (Super. Ct. No. BAF2000929)
LEONIDES GUZMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Charles J. Koosed, Judge. Affirmed in part, vacated in part and remanded.
Arielle Bases, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Leonides Guzman engaged in sexually explicit online conversations
with a 13-year-old girl, sent her photographs of his penis, asked for naked
photographs of her, and convinced her to meet him near a park to have sex.
When Guzman showed up with condoms, and the candy and soda the girl
requested, he was arrested. It turned out the girl was an undercover
investigator. A jury convicted Guzman of four felony offenses involving
sexual misconduct against a minor. The trial court sentenced him to four
years in prison, selecting the middle term of three years on the principal
count.
On appeal, Guzman contends the trial court abused its discretion when
it admitted evidence he had previously engaged in similar sexual offenses
against three other underage girls, pursuant to Evidence Code section 1108.1
He further contends section 1108, as applied, violates his rights to a fair trial
and due process under the Sixth and Fourteenth Amendments to the United
States Constitution because propensity evidence “erodes” the presumption of
innocence. We reject these contentions.
However, we agree with Guzman that remand for resentencing is
appropriate under recently-enacted Assembly Bill No. 124 (2021–2022 Reg.
Sess.; Stats. 2021, ch. 695, § 5.3) (Assembly Bill 124), which amended Penal
Code section 1170 to make a low-term sentence presumptively appropriate
when a defendant’s “childhood trauma” was a “contributing factor in the
commission of the offense.” (Pen. Code, § 1170, subd. (b)(6)(A).) The new
ameliorative sentencing law applies retroactively to Guzman. And because
we are unable to conclude the record clearly indicates the trial court would
1 All further unspecified statutory references are to the Evidence Code.
2
have imposed the same sentence had it considered the new requirements of
Assembly Bill 124, remand is appropriate. We reject Guzman’s claim he is
entitled to remand under Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate
Bill 567) because he was not sentenced to any upper term sentence. We
affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Prosecution’s Case
The prosecution charged Guzman with four counts of misconduct
against a minor: attempting to communicate with a minor with the intent to
commit a lewd act with a minor under 14 (Pen. Code, § 288.3, subd. (a); count
1); arranging and going to meet with a minor with the intent to engage in
lewd behavior (Pen. Code, § 288.4, subd. (b); count 2); attempted production
of child pornography with a minor under the age of 14 (Pen. Code, §§ 664,
311.4, subds. (c) & (f); count 3); and distributing harmful material to a minor
(Pen. Code, § 288.2, subd. (a)(2); count 4). The prosecution presented its case
in under one trial day, calling two investigators and three witnesses who
testified regarding Guzman’s prior sexual offenses pursuant to section 1108.
A. Evidence of the Charged Crimes
Liam Doyle, an investigator for the Riverside County District
Attorney’s Office, worked on a task force investigating internet crimes
against children. As part of an undercover online operation, Doyle created a
fake account as a girl named “Destiny” on a dating app called “Flurv.” The
profile for Destiny showed a picture of a female from her shoulders to her
waist, wearing a “Little Mermaid” shirt, and described her as 18 years old.
In August 2020, Destiny received a message from a user named
“Andrez,” later determined to be Guzman. Guzman made “small talk” and
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told Destiny he liked her picture. Destiny “[a]lmost immediately” told
Guzman she was 13 years old. Still, Guzman told Destiny he wanted to meet
her to have sex and he wanted Destiny to perform oral sex on him.
At some point, Destiny asked Guzman “to move to text message.”
Doyle explained he did this because the dating app screened conversations for
underage users and shut down their accounts. As a result, he loses contact
with the person and with it, any evidence for the case. Destiny’s account was
in fact later disabled and deleted, including the record of the messages with
Guzman.
Guzman then texted Destiny on the cell phone number that Doyle gave
him. He told Destiny “it was Andrez” and they “pick[ed] up where [they] left
off.” Guzman “continually” said “stuff that was sexual” to Destiny. He said
“he wanted to have sex” with her; “[h]e wanted to perform oral sex” on her;
“[h]e wanted [her] to perform oral sex” on him. Guzman sent Destiny a
picture of his semi-erect penis and asked her, “if [she] wanted to suck it.”
Guzman, who was then 27 years old, first told Destiny he was 18. He
then said he was 17. So Destiny asked for proof of his age. Guzman
responded by sending Destiny a “selfie.” In court, Doyle identified Guzman
as the man depicted in the selfie with whom he was texting.
“Multiple times” during their conversation, Destiny told Guzman she
was 13. She also told him she was in the eighth grade. She “asked him if he
was sure that he wanted to do this with a 13-year-old.” Guzman sent more
pictures of his penis and asked Destiny “what [she] was going to do with it.”
In response, Destiny told Guzman she “never had sex before and asked him if
he’d be okay teaching a 13-year-old what to do.” Guzman told Destiny “that
he would be okay with that, and that he’ll teach [her].”
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Guzman told Destiny he wanted to meet to have sex with her. Destiny
agreed, and he asked her “when would be a good time, when [her] parents
left, what day, and scheduled a meeting with [her].” They agreed to meet
near a certain dog park2 on a Wednesday at 10:00 a.m., a time Destiny said
her mom would be leaving the home.
Destiny asked Guzman to bring her a Cherry Coke, Skittles, and
condoms to their meeting. Doyle explained he asked Guzman to bring these
items as a means to eliminate the suspect’s ability to claim, “I was just
showing up here at random, you guys have the wrong person.” Guzman sent
Destiny pictures of the soda, candy and condoms he got for her. He again told
her he was going to have sex with her, that he was going to perform oral sex
on her, and “it would be real good.”
The night before their meeting, Destiny told Guzman she had talked to
a friend who told her “a lot of people say this online, and it’s just a fantasy.”
She asked Guzman “if this was just fantasy talk that he was doing.” Guzman
said it was not, and “he was going to show up” and “he was going to have sex
with [her] real good.”
The morning they were to meet, Guzman texted Destiny and told her to
get in the shower and send him nude pictures. The day before, he had asked
Destiny for a nude picture without her face and for a “normal picture.” Doyle
sent him the same profile picture used to create the account and a picture of a
“life-like doll laying on a beanbag” that was “fully clothed” with “shorts and a
2 Doyle testified he did not give suspects actual addresses to the meet
location, because “[i]t’s a mechanism that [they] use to show that they went
out of their way to find the location to meet, that it wasn’t something we
forced them to do.” Doyle gave Guzman neither an address to Destiny’s home
nor to the dog park.
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shirt” but no face. Doyle explained he did not send nude pictures of either
“minors or young-looking females” to Guzman, because “it’s child
pornography.”
At 10:08 a.m. on the specified Wednesday, Guzman texted Destiny and
said he was at the park. He said the park was “real big” and he wanted to
meet Destiny at her house. Doyle was north of the park in a neighborhood
and watching a live feedback from a drone being flown over the park by the
local police department. When he received Guzman’s text message, Doyle
observed Guzman standing near a white pickup truck. It was the only
vehicle in the parking lot between 10:00 and 10:30 a.m. Destiny texted
Guzman back and said she was going to ride over to the park on her bike.
Doyle watched Guzman get back into his truck, drive into a nearby
neighborhood, make a U-turn, and park.
Police officers then arrested Guzman. They found a Cherry Coke,
Skittles, and condoms in his truck. They also found two cell phones in his
truck, an iPhone and a Samsung cell phone that contained the text messages
between Destiny and Guzman.3 Doyle called the cell phone number he had
been using to text with Guzman, and it rang to the Samsung phone. It was
the same cell phone number on the back of Guzman’s truck, advertising his
business.
3 At trial, the prosecution presented to the jury and admitted into
evidence a video that Doyle had recorded of the text messages Guzman
exchanged with Destiny and a document with screenshots of the same
messages. We received these exhibits as part of the record on appeal and
have reviewed them in deciding this appeal.
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B. Evidence of Prior Sexual Offenses
A warrant search of the two cell phones led to the discovery that
Guzman had been texting with two other underage girls. On the Samsung
phone was an app called “Text Free,” which allows the user to “have . . . a
different phone number then what’s associated with their actual primary
phone.” Doyle looked through the Text Free app and found texts with “a
female” from a number later determined to belong to S.G. On the iPhone,
Doyle found texts with a person whose cell phone number was later
determined to belong to G.B. Her saved contact picture was of a “young
female child.” The same picture of the young female child was also the
background picture of the iPhone display screen.4 A third underage girl,
S.H., was found because Guzman had been convicted of misdemeanor
statutory rape in 2014.
1. S.G.
S.G. was one month shy of 18 years old at the time of trial. She started
speaking with Guzman over the phone and texting with him in June 2020.
She was 16 years old, and told Guzman so. He told her he was 21, and his
name was “Leo.” They spoke about “sexual” things over text messages. He
told her, “Let’s fuck.” Just before her 16th birthday, Guzman asked for her
home address. “He said he was just going to come and keep [her] company.”
Though she never saw him outside her house, she believed Guzman showed
up because he texted her from outside her house requesting oral sex from her.
But S.G. did not go meet Guzman. She identified Guzman from a picture he
4 When he later testified in his own defense, Guzman admitted the
iPhone was his, but claimed the Samsung phone belonged to his friend
“Andrez” who left it with him when he went to Mexico.
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had sent her. The same picture, and her cell phone number, were found on
the Samsung phone.
2. G.B.
G.B. had just turned 18 at the time of trial. She met Guzman on a
dating app in early spring 2018, when she was 15. Guzman told her his
name was “Leonides Guzman” and that he was 18. She first told Guzman
she was 16. But before they met in person, she told Guzman she was 15.
They ended up having a two-year relationship, during which they had sexual
intercourse on “multiple occasions” when she was 15 and 16. Their “sexual
relations” included Guzman touching G.B.’s breasts and “bare vagina.” G.B.
confirmed her cell phone number, which was the number associated with the
text messages and saved contact picture of the “young female child” found on
Guzman’s iPhone.
3. S.H.
S.H. was 22 at the time of trial. In February 2014, at age 14, she met
Guzman on Facebook. Guzman told S.H. his name was “Leo Guzman” and he
was 17 years old; his true age was 20. S.H. told Guzman she was 14. They
chatted with each other for two to three weeks on Facebook. They discussed
“sexual things in general” and Guzman expressed “feelings or love” for S.H.
Guzman then proposed they meet in person at S.H.’s house. He asked S.H.
“about where [her] parents would be at the time” and told her “[h]e didn’t
mind that they were gone.” He then went to S.H.’s house and had sex with
her, four times in February and March 2014.
After her testimony, the trial court read the following stipulation to the
jury: “The parties hereby stipulate that the defendant, Leonides Guzman,
has . . . a conviction for the following: August 28th, 2014, a violation of Penal
8
Code section 261.5, subdivision (d), statutory rape, a misdemeanor against
Jane Doe, initials S.H.”
II.
Defense Case
Guzman testified but presented no other witnesses. He testified there
were messages between him and Destiny in a dating app called “Meet Me”
that were not among the text messages in the exhibits introduced by the
prosecution. He explained Meet Me is “an app for adults that is used to chat
and meet.”
He has never used the Meet Me app before he began chatting with
Destiny. The Samsung phone with the app on it belonged to his friend and
business partner, “Andrez.” Andrez had left his phone with Guzman when
Andrez went to Mexico. Guzman “didn’t have anything to do,” so he “grabbed
the phone” and went into the app and it “already had the profile” set up.
After 10 minutes of being in the app, he saw Destiny’s message.
It was Destiny who first initiated contact with Guzman. Guzman did
not know it was a detective at the time; he believed “it was a 19-year-old
girl.” He believed Destiny was 19 because “[i]t said there on the app that she
was 19.” He had also asked Destiny “for some photos” and she sent him “a
full body shot of a woman in a bikini holding a California driver’s license.”5
The driver’s license had the name “Destiny” and it “said she was born in
5 Doyle had testified he did not send Guzman a picture of a California
driver’s license of a person named Destiny with a birthdate showing she was
18 years old. Nor did he, posing as Destiny, tell Guzman she was 18 years
old, or tell Guzman to “[l]et’s play a game and pretend” she was 13 years old.
In response, Guzman asserted “[h]e’s lying.”
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1999,” making her 19 years old. He also believed anyone contacting him on
the dating app was over 18 because the service allowed “only people over 18.”
Destiny told Guzman she wanted to role play as a 13-year-old girl⎯“a
little girl student”⎯and that Guzman should pretend to be 18. But this
conversation about “playing a game” where Destiny would be 13 occurred
only on the app (for which Doyle had testified there is no record because the
account was shut down and deleted). Guzman explained that, in the app,
Destiny told him “[t]hat she was going to act like she was 13 on the texts”
and Guzman should respond by text but that she would respond to him only
in the app. Although he thought this was “weird,” he “just went along with
the game.”
Guzman admitted he sent sexually explicit and graphic text messages
to Destiny, that included pictures of his penis, but he claimed it was all role
play. He denied he was “turned on” by Destiny pretending to be a 13-year-old
girl. Indeed, he did not like or enjoy having sex with “underaged girls.” He
testified he went to the park that day to take a walk with Destiny, not to
have sexual intercourse, and they had agreed to meet for a walk during an
actual phone conversation.
As for the other underage girls, Guzman testified he believed S.H. was
17 years old when he met her at age 20. They had a “boyfriend/girlfriend
relationship” and sex on multiple occasions but he did not enjoy it. He later
testified he enjoyed it “[j]ust like normal.” He then found out she was really
14 when he was arrested for having sex with her; he later pled guilty to
statutory rape of S.H.
Guzman testified G.B. told him she was 17 years old when he met her
on a dating app. He admitted he had been “talking to her for about two
years” and he met with her more than once, but denied they had sex or any
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“sexual interaction.” He claimed G.B.’s testimony that they had sex was “not
true.” He last spoke to her “[m]aybe a week” before he was arrested when he
went to meet Destiny at the park.
Guzman testified he did not know S.G., had never texted her, or met
with her. When asked about the texts with S.G. on the Samsung phone,
Guzman again denied the phone was his and asserted it belonged to
“Andrez.” He testified Andrez was “the one who was actually texting” S.G.,
using his name “Leo.” He could think of no reason why his friend would do
that. Guzman admitted he never told Doyle in his post-arrest police
interview that Andrez had the Samsung phone during the text exchange with
S.G.
Although he testified that Andrez left the Samsung phone with him,
Guzman admitted he previously told Doyle that he “bought” the phone from
“a friend” “just two days” before his arrest. Another time, he told Doyle he
got the phone “off of someone on the street.” Yet another time, he testified
S.G.’s text messages were on a phone that he “bought” from his friend before
he went to Mexico. He admitted he paid the bill every month for the
Samsung phone.6
III.
Verdicts
On the morning of the third (and last) day of trial, the trial court
instructed the jury and the attorneys presented their closing arguments.
Sometime after the noon recess that day, the jury returned with guilty
verdicts on all four charged counts. It found Guzman guilty of attempting to
6 The prosecutor played a video recording of Doyle’s post-arrest interview
of Guzman for the jury during her cross-examination of Guzman.
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communicate with a minor with the intent to commit a lewd act with a minor
under 14 (Pen. Code, § 288.3, subd. (a); count 1); arranging and going to meet
with a minor with the intent to engage in lewd behavior (Pen. Code, § 288.4,
subd. (b); count 2); attempted production of child pornography with a specific
finding the minor involved in this offense was under the age of 14 (Pen. Code,
§§ 664, 311.4, subds. (c) & (f); count 3); and distributing harmful material to a
minor (Pen. Code, § 288.2, subd. (a)(2); count 4).
DISCUSSION
I.
Evidence of Prior Sexual Offenses Was Properly Admitted
The trial court admitted the testimony of S.G., G.B., and S.H. regarding
Guzman’s prior sexual offenses pursuant to section 1108, subdivision (a),
which provides: “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.” Guzman asserts this was
prejudicial error, for two reasons. We reject both.
A. Section 1108 Is Constitutionally Valid
First, Guzman contends section 1108, as applied, violates his rights to a
fair trial and due process under the Sixth and Fourteenth Amendments to
the United States Constitution because propensity evidence “erodes” the
presumption of innocence. The California Supreme Court has already
rejected this constitutional challenge, in People v. Falsetta (1999) 21 Cal.4th
903 (Falsetta).
In Falsetta, our high court held “[a]lthough this provision represents a
deviation from the historical practice of excluding such ‘propensity’ evidence
(see § 1101, subd. (a)), the provision preserves trial court discretion to exclude
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the evidence if its prejudicial effect outweighs its probative value (§ 352).”
(Falsetta, supra, 21 Cal.4th at p. 907.) The Court further noted section 1108
“also provides for pretrial notice to [the] defendant of the evidence to be
offered (§ 1108, subd. (b)), disclaims any intent to limit admission of evidence
under other provisions (§ 1108, subd. (c)), and defines the various terms used
in the provision (§ 1108, subd. (d)).” (Falsetta, at p. 911.) Thus, “in light of
the substantial protections afforded to defendants in all cases to which
section 1108 applies,” the Court saw “no undue unfairness in its limited
exception to the historical rule against propensity evidence.” (Falsetta, at
pp. 915−916.) The Court “conclude[d], consistent with prior state and federal
case law, that section 1108 is constitutionally valid.” (Falsetta, at p. 907.)
Our high court has since reaffirmed Falsetta, again holding that “ ‘the
trial court’s discretion to exclude propensity evidence under section 352 saves
section 1108 from [the] defendant’s due process challenge.’ ” (People v. Wilson
(2008) 44 Cal.4th 758, 797.) We are bound by these rulings (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and accordingly, we
reject Guzman’s constitutional challenge to section 1108.
B. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of
Guzman’s Prior Sexual Offenses
Second, Guzman contends the trial court prejudicially erred in
admitting the evidence of prior sexual offenses. He asserts the evidence was
“extremely prejudicial and outweighed any probative value,” and that he was
prejudiced by its admission. We disagree.
We review a challenge to the trial court’s admission of section 1108
evidence, including its section 352 determination, for abuse of discretion.
(People v. Dejourney (2011) 192 Cal.App.4th 1091, 1104–1105.) “We will not
find that a court abuse[d] its discretion in admitting such other sexual acts
evidence unless its ruling ‘ “falls outside the bounds of reason.” ’ ” (Ibid.) In
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other words, we will not reverse a trial court’s exercise of discretion under
sections 1108 and 352 unless its decision was arbitrary, capricious or
patently absurd and resulted in a manifest miscarriage of justice. (People v.
Brown (2000) 77 Cal.App.4th 1324, 1337.) We see no abuse of discretion in
the trial court’s ruling here.
“As a general rule, evidence that is otherwise admissible may be
introduced to prove a person’s character or character trait. (§ 1100.) But,
except for purposes of impeachment (see § 1101, subd. (c)), such evidence is
inadmissible when offered by the opposing party to prove the defendant’s
conduct on a specified occasion (§ 1101, subd. (a)), unless it involves
commission of a crime, civil wrong or other act and is relevant to prove some
fact (e.g., motive, intent, plan, identity) other than a disposition to commit
such an act (§ 1101, subd. (b)).” (Falsetta, supra, 21 Cal.4th at p. 911; accord
People v. Catlin (2001) 26 Cal.4th 81, 145.)
The Legislature added section 1108 “to expand the admissibility of
disposition or propensity evidence in sex offense cases.” (Falsetta, supra, 21
Cal.4th at p. 911.) “Section 1108 was intended in sex offense cases to relax
the evidentiary restraints section 1101, subdivision (a), imposed, to assure
that the trier of fact would be made aware of the defendant’s other sex
offenses in evaluating the victim’s and the defendant’s credibility. In this
regard, section 1108 implicitly abrogates prior decisions of [the California
Supreme Court] indicating that ‘propensity’ evidence is per se unduly
prejudicial to the defense.” (Falsetta, at p. 911.) As our high court noted,
“ ‘[t]he Legislature has determined the need for this evidence is “critical”
given the serious and secretive nature of sex crimes and the often resulting
credibility contest at trial.’ ” (Ibid.)
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Thus, section 1108 explicitly allows evidence of other sexual offenses to
be considered “ ‘ “as evidence of the defendant’s disposition to commit such
crimes, and for its bearing on the probability or improbability that the
defendant has been falsely or mistakenly accused of such an offense.” ’ ”
(Falsetta, supra, 21 Cal.4th at p. 912.) The only limitation placed on the
admission of propensity evidence in a criminal sexual offense case is that of
section 352. (See § 1108, subd. (a).) Evidence of other sexual offenses may
not be admitted “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.” (§ 352.)
Although the trial court’s section 352 analysis depends on the unique
facts and issues of each case, “five factors stand out as particularly significant
in a[ ] . . . section 1108 case. These factors are (1) whether the propensity
evidence has probative value, e.g., whether the uncharged conduct is similar
enough to the charged behavior to tend to show the defendant did in fact
commit the charged offense; (2) whether the propensity evidence is stronger
and more inflammatory than evidence of the defendant’s charged acts; (3)
whether the uncharged conduct is remote or stale; (4) whether the propensity
evidence is likely to confuse or distract the jurors from their main inquiry,
e.g., whether the jury might be tempted to punish the defendant for his
uncharged, unpunished conduct; and (5) whether admission of the propensity
evidence will require an undue consumption of time.” (People v. Nguyen
(2010) 184 Cal.App.4th 1096, 1117 (Nguyen).) “A trial court balances this
first factor, i.e., the propensity evidence’s probative value, against the
evidence’s prejudicial and time-consuming effects, as measured by the second
through fifth factors.” (Ibid.)
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Here, the trial court granted the prosecution’s request to admit
evidence of Guzman’s prior sexual offenses against S.H., S.G., and G.B. to
demonstrate his propensity to commit sexual offenses. But, with the
prosecution’s agreement, the court excluded evidence that Guzman had
threatened the minor girls and acted violently with two of them. In a written
trial brief, the prosecution proffered the following evidence in support of its
request to admit section 1108 evidence:
After discussing “engaging in sex acts” with Guzman and providing
Guzman with her home address, then 16-year-old S.G. “changed her mind
and told him not to visit her.” Guzman drove to her home anyway and
“threatened if she did not come outside, he would kill her mother and sister.”
He told S.G. “he would only leave her alone if she orally copulated him.” She
blocked his number but “he continued to call her from different numbers,
calling her a ‘slut.’ His threats terrified [S.G.], and she lived in fear of him
assaulting her or her family.”
For nearly two months, Guzman had been coming to then 14-year-old
S.H.’s home to have sex with her while her parents were away, until S.H.’s
grandfather caught Guzman and “expelled” him from the home. Guzman
then left a note at the house calling S.H. a “ ‘whore’ and other derogatory
language.” S.H. then blocked him on social media.
Then 15-year-old G.B. met with Guzman, after connecting with him on
a dating app. The third time they saw each other, when she was 16, Guzman
“unbuttoned her pants and pulled down her pants and underwear. She said
no and attempted to pull them back up but [Guzman] stopped her. She tried
to keep her legs tightly together to prevent him from inserting his penis
inside her vagina and anus and told him to stop. . . . Defendant pushed her
legs apart and inserted his penis in her anus. . . . She tried to push him off
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during the assault but he was too heavy.” The fifth time they met, Guzman
“attempted to rape her again.” She stopped speaking to Guzman “[d]uring
the middle of 11th grade” and “blocked him” on social media.
Guzman objected “to all of the 1108 [evidence] under [section] 352,” but
at minimum argued “for sanitization” of the evidence. And indeed, the
parties had conferred before trial and the prosecution agreed it would not
elicit evidence regarding forcible rape, threats of violence, or derogatory
language. The trial court agreed with the parties’ stipulation and stated,
“Chances are, I would have ruled the same, anyhow.” Thus, the evidence of
Guzman’s prior sexual offenses was sanitized of any reference to threats,
violence and derogatory language.
The trial court then went on to conduct a section 352 analysis on the
remainder of the prosecution’s evidence for each of the three witnesses. As to
each witness, the court found that once sanitized of the threats, violence, and
derogatory language, evidence of the prior sexual offenses were “no more
egregious” or “serious” than what was alleged in the charged crimes; is
“consistent with similar conduct done in a similar fashion”; is “probative as to
[Guzman’s] intent and certainly the motivation and propensity behind this
type of conduct”; and its probative value “outweighs any prejudicial impact.”
Further, the court found the evidence of the prior sexual offenses was not
impermissibly remote or cumulative, noting the prosecution’s representation
they had sanitized the evidence “to the point where it’s going to be only 10
minutes for each of these victims.”
On this record, we have no difficulty concluding the trial court did not
abuse its discretion and properly admitted evidence of Guzman’s other sexual
offenses. The court weighed the five factors considered important in a section
1108 case, and then balanced the probative value of the evidence against its
17
prejudicial and time-consuming effects.7 (See Nguyen, supra, 184
Cal.App.4th at p. 1117.) The court’s ruling was well within the bounds of
reason, and certainly not arbitrary, capricious, or patently absurd. Guzman’s
arguments to the contrary are not persuasive.
Guzman takes issue with the trial court’s finding that his prior “sexual
intercourse with two minors was ‘probative to [his] intent and certainly the
motivation and propensity behind this type of conduct,’ ” and argues “that
evidence, along with G.B.’s testimony that [he] had contacted her via social
media in a sexual manner when she was underage, could have persuaded the
jury that [he] was the kind of person who commits sexual crimes ⎯ precisely
the type of propensity evidence that should be excluded.” Not so. This is
precisely what section 1108 permits. (See Falsetta, supra, 21 Cal.4th at
p. 912 [section 1108 explicitly allows evidence of other sexual offenses to be
considered “ ‘ “as evidence of the defendant’s disposition to commit such
crimes” ’ ”].)
Guzman contends the evidence of the prior sexual offenses lacked
probative value because there is a “very significant difference between
texting someone in a sexual manner [referring to the charged offenses] and
having sexual intercourse with someone [referring to S.H. and G.B.]; sexual
intercourse is much more egregious and inflammatory.” His contentions are
unpersuasive for two reasons. First, the reason Guzman did not have sex
with an underage girl in the charged offenses was because “Destiny” did not
exist. Second, the other sexual offenses need only be “similar enough to the
charged behavior to tend to show [Guzman] did in fact commit the charged
7 The prosecution’s case-in-chief took one day, and the testimony of all
three witnesses introduced pursuant to section 1108 took only 16 pages of the
entire trial transcript.
18
offense.” (Nguyen, supra, 184 Cal.App.4th at p. 1117, italics added.) That
standard was met.
Indeed, the prior sexual offenses were remarkably similar to the
charged offenses. Just as in the charged behavior, Guzman met all three of
the other underage girls on either a dating app, social media, or phone; he
knew they were minors because they told him so; knowing they were minors,
he sent all of them sexually explicit text messages and proposed they meet to
have sex, including oral sex; he had sex with S.H. and G.B. when they were
minors and, although he did not have sex with S.G., he went to her home and
texted her from outside the home with a request she perform oral sex on him.
The prior sexual offenses were similar enough to the charged behavior to be
probative of Guzman’s propensity to commit the charged offenses.
In addition to demonstrating a defendant’s propensity to commit the
charged offense, section 1108 “ ‘ “permit[s] the jury in sex offense . . . cases to
consider evidence of prior offenses for any relevant purpose.” ’ ” (People v. Loy
(2011) 52 Cal.4th 46, 63.) Here, the trial court also properly admitted the
evidence of Guzman’s prior sexual offenses as relevant to his intent in the
charged offenses. His defense at trial was he intended to meet Destiny to go
for a walk in the park, not to have sex with her. He claimed he believed she
was a 19-year-old woman who was only role-playing as a 13-year-old girl.
Further, he claimed he had no desire to have sex with minors. The evidence
of the prior sexual offenses against three other underage girls, with a similar
modus operandi, was probative that he possessed the requisite intent in the
charged offenses. Moreover, the evidence was probative “ ‘ “on the probability
or improbability that the defendant has been falsely or mistakenly accused of
such an offense.” ’ ” (Falsetta, supra, 21 Cal.4th at p. 912.)
19
Guzman contends, however, the probative value of the evidence was
substantially outweighed by its prejudicial effect. He contends the prior
sexual offenses against G.B. and S.G. involved uncharged offenses that did
not result in convictions, so he argues the jurors might be “ ‘tempted’ ” to
convict simply to punish him for the other offenses. And in the case of G.B.,
the uncharged conduct was more inflammatory because it involved sexual
intercourse with a minor. Last, he argues the evidence of the uncharged
offenses was “highly unreliable” because he never admitted these offenses
and they were never proven in court. We are not persuaded by any of these
contentions.
The trial court sanitized the evidence of the prior sexual offenses of the
most egregious and inflammatory details. (See Falsetta, supra, 21 Cal.4th at
p. 917 [in considering admissibility of section 1108 evidence and a section 352
weighing, trial court should consider “the availability of less prejudicial
alternatives to its outright admission, such as . . . excluding irrelevant
though inflammatory details surrounding the offense”].) The court instructed
the jury on how it may (and may not) consider the evidence (CALCRIM No.
1191A), and we presume the jury understood and followed the court’s
instructions on the law. (See People v. Martinez (2010) 47 Cal.4th 911, 957.)
We disagree the uncharged offenses against G.B. and S.G., having not
been admitted or proven, were “highly unreliable.” The two cell phones found
in Guzman’s truck, one of which he unequivocally admitted was his,
contained independent corroborating evidence of his texting with both minor
girls. Moreover, Guzman admitted he had been “talking . . . for about two
years” with G.B. and met her in person more than once. Although he denied
having sex with her, his testimony provided corroboration of G.B.’s testimony
that they did. Guzman did not dispute the sexually explicit text messages
20
sent to S.G. from the Samsung phone found in his car; he claimed his friend
“Andrez” did so under his name, which again tended to corroborate S.G.’s
testimony. Finally, the selfie Guzman had sent S.G. was found on the
Samsung phone, discrediting his testimony he never texted her.
In sum, we conclude the trial court did not abuse its discretion and
properly admitted evidence of Guzman’s prior sexual offenses under sections
1108 and 352.
Our conclusion that no error has occurred disposes of Guzman’s
contention that the asserted evidentiary error violated his Fourteenth
Amendment right to due process. But even assuming error, it would be state
law error and evaluated for prejudice under People v. Watson (1956) 46
Cal.2d 818 (Watson). (See People v. Jandres (2014) 226 Cal.App.4th 340, 357
[applying Watson harmless error to admission of evidence under sections
1108 and 352].) Under that standard, we would conclude any error was
harmless.
The evidence of Guzman’s guilt, even without the section 1108
evidence, was overwhelming. The sexually explicit texts Guzman sent to
Destiny were provided to the jury in evidence and we have reviewed them.8
In these texts, Destiny immediately told Guzman, “So I’ve never had sex
before tho. Is that cool. Like do you mind showing a 13 what to do or is that
too weird.” He responded, “Ill eat you out so good baby” and sent her a
picture of his semi-erect penis. He asked her, “So wana suck it” with the
same graphic picture and told her, “I’ll fuck u good baby.” She then told him,
“I don’t drive I’m 13.” He asked her what grade she was going into and she
8 We reproduce the texts here without correcting the misspellings or
grammatical errors.
21
answered, “Going into 8.” She asked, “R u sure you don’t mind that I’m 13.
Ive never done this and don’t want you to be disappointed that I don’t know
what to do.” To that, he responded, “I’ll fuck u good.” He assured Destiny it
was not a fantasy, and that he would show up at the park with the condoms,
candy and soda she had requested. And then, he did exactly that. On this
record, we conclude there is no reasonable probability a result more favorable
to Guzman would have been reached absent the asserted error. (Watson,
supra, 46 Cal.2d at p. 836.)
II.
The Matter Shall Be Remanded For Resentencing Pursuant to Penal Code
Section 1170, Subdivision (b), as Amended
At the time of Guzman’s sentencing, Penal Code section 1170, former
subdivision (b), left it to the sentencing court’s “sound discretion” to select the
appropriate term within a sentencing triad that “best serves the interests of
justice.” (Pen. Code, § 1170, former subd. (b), as amended by Stats. 2018,
ch. 1001 (Assem. Bill No. 2942) § 1.) During the pendency of this appeal and
relevant here, the Legislature enacted two ameliorative sentencing bills
which made significant amendments to the determinative sentencing law
under Penal Code section 1170, effective January 1, 2022.
First, Senate Bill 567 amended Penal Code section 1170, former
subdivision (b), to provide that “a court may impose a sentence exceeding the
middle term only when 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.” (Pen. Code, § 1170, subd. (b)(2).)
Second, Assembly Bill 124 amended Penal Code section 1170 to make a low-
22
term sentence presumptively appropriate when a defendant’s “childhood
trauma” is a “contributing factor” to the defendant’s commission of an
offense. (Pen. Code, § 1170, subd. (b)(6)(A).)
Guzman contends he is entitled to retroactive application of both
Senate Bill 567 and Assembly Bill 124, and requests that we vacate his
sentence and remand for resentencing under Penal Code section 1170, as
amended. The Attorney General correctly concedes both ameliorative
amendments apply retroactively to Guzman. (In re Estrada (1965) 63 Cal.2d
740, 742 [we presume, absent evidence to the contrary, that statutes that
reduce punishment for criminal conduct apply retroactively to all defendants
whose sentences are not final on the statute’s operative date]; People v.
Gerson (2022) 80 Cal.App.5th 1067, 1095 [Assembly Bill 124 applies
retroactively to nonfinal cases on direct appeal]; People v. Lopez (2022) 78
Cal.App.5th 459, 465 [Senate Bill 567 applies retroactively to nonfinal cases
on direct appeal].) However, the Attorney General argues remand is not
required under either amendment.
Here, we conclude Senate Bill 567 does not apply to Guzman’s
sentence, but he is entitled to remand for an opportunity to further develop
the record for the trial court’s consideration of Penal Code section 1170,
subdivision (b)(6)(A), as amended by Assembly Bill 124.
A. Remand Under Senate Bill 567 Is Not Required Because the Trial Court
Did Not Impose Any Upper Term Sentence
We agree with the Attorney General that remand is not required under
Senate Bill 567 because the trial court did not impose any upper term
sentence. The court sentenced Guzman to four years in prison. It arrived at
this term by imposing the middle term of three years on count 2 (Pen. Code,
§ 288.4, subd. (b)), a consecutive term of one-third the middle term for four
months on count 3 (Pen. Code, §§ 664, 311.4, subds. (c) & (f)), and a
23
consecutive term of one-third the middle term for eight months on count 4
(Pen. Code, § 288.2, subd. (a)(2)). The court stayed imposition of sentence on
count 1 (Pen. Code, § 288.3, subd. (a)), pursuant to Penal Code section 654.
Penal Code section 1170, subdivision (b), as amended, does not apply here
because the court did not exceed the presumptive middle term on any count.
(Pen. Code, § 1170, subd. (b)(2).)
Guzman, however, asserts he is entitled to the benefits of Senate Bill
567. This is so, he argues, because the trial court considered evidence of his
prior sexual offenses “when imposing sentence” and used it “as an
aggravating factor” to “increas[e] the sentence above probation or the low
term, and then imposed the middle term because of [his] background.”
(Italics added.) And this aggravating factor had not been proven beyond a
reasonable doubt to the jury or admitted by him, as required by the new law.
There are two problems with Guzman’s argument. One, Penal Code section
1170, subdivision (b)(2), as amended, requires an aggravating factor be
proven beyond a reasonable doubt or stipulated by the defendant when used
to “exceed[ ] the middle term,” not probation or the low term. (Pen. Code,
§ 1170, subd. (b)(2), italics added.) Two, Guzman’s argument
mischaracterizes the record. The court did not consider the evidence of his
prior sexual offenses in “imposing sentence.” It considered that evidence in
denying probation.
In evaluating Guzman’s suitability for probation, the court discussed
with counsel whether it could consider the evidence of his prior sexual
offenses admitted at trial. The court “put it this way: Without it, all he has
is a misdemeanor stat rape criminal history. That would in my mind weigh
in whether I give him probation or not. If I can consider that evidence, he
sounds like a total predator to me, not redeemable at any probationary level,
24
unstoppable force. So I think that’s a big factor.” (Italics added.) The court
again said, “if it turns out I can consider that evidence [of prior sexual
offenses], I’m really not inclined to give him probation, because to me, at that
point being allowed to consider that evidence, he’s done this multiple times,
multiple victims, understanding there’s no real victim in this case.” (Italics
added.) The court ultimately found Guzman was not a “good candidate” for
probation based on “the totality of the record,” including the evidence of his
prior sexual offenses. The court stated, “He would appear to be a predator in
this regard having victimized several underaged girls.”
In deciding the term to impose, the trial court stated that “[i]n
considering the aggravating and mitigating factors, [it was] going to follow
the probation officer’s recommendation” of a middle term sentence. The
probation officer had identified in his report two aggravating factors⎯the
manner in which the crime was carried out showed planning, sophistication,
or professionalism (Cal. Rules of Court, rule 4.421(a)(8)) and the defendant’s
prior convictions as an adult are numerous or of increasing seriousness (Id.,
rule 4.421(b)(2))⎯and one mitigating factor⎯the impact of the defendant’s
crime on the victim in this case is less serious than the impact in similar
cases (Id., rule 4.408). Although the court did not use any aggravating factor
to impose the upper term, evidence of Guzman’s prior uncharged sexual
offenses was not among the aggravating factors listed in the probation report.
B. Remand Is Appropriate Under Assembly Bill 124
We conclude remand is appropriate under Assembly Bill 124 to allow
Guzman an opportunity to further develop the record for the trial court’s
consideration of this amendment. Penal Code section 1170, subdivision
(b)(6)(A), as amended, provides: “[U]nless the court finds that the
aggravating circumstance outweigh the mitigating circumstances that
25
imposition of the lower term would be contrary to the interests of justice, the
court shall order imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] (A) The person has
experienced psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence.”
In the probation report to the court, the probation officer summarized
Guzman’s “social history,” as provided by Guzman. Guzman stated his
mother abandoned his father and their six children when he was four years
old. He described his father as “authoritarian, chauvinist and constantly
upset with him and his siblings” and “[h]e recalled many family conflicts
between his father, siblings, and other close relatives.” At age 14, he “left El
Salvador due to threats from the cartels and illegally entered the United
States.” He reported “his physical and mental health as ‘good’ with no known
ailments, disabilities, or diagnosis” and that he was not currently in
treatment and “does not believe he is [in] need of such.”
Guzman contends “the court should have imposed the lower term based
on these factors” from his social history under the new law, and the remedy is
remand for resentencing. The Attorney General disagrees. He acknowledges
“the record shows [Guzman] may have experienced some trauma during his
childhood” but argues remand is not required because “the trial court
appeared to agree with the probation report that the aggravating
circumstances outweighed the single mitigating factor the report identified.”
The Attorney General points out that the court found Guzman was a
“ ‘predator,’ he had victimized several underage girls in the past, he was
previously granted probation, and that grant of leniency did not work because
he continued to commit the same crimes.” And thus the Attorney General
argues, “[e]ven if the court had found that [Guzman] experienced some
26
trauma that contributed to his commission of the crimes, the record
demonstrates that the court would not have sentence[d] [him] to anything
less than the term it imposed.”
“ ‘Defendants are entitled to sentencing decisions made in the exercise
of the “informed discretion” of the sentencing court.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) When a trial court sentences a
defendant without awareness of the full scope of its discretion, the
appropriate remedy is to remand for resentencing. (Ibid; People v. Banner
(2022) 77 Cal.App.5th 226, 240 (Banner).) However, remand for resentencing
is not required if the record “ ‘clearly indicate[s]’ that the trial court would
have reached the same conclusion ‘even if it had been aware that it had such
discretion.’ ” (Gutierrez, at p. 1391.) In other words, remand is not required
when it would be an “idle act.” (People v. Flores (2020) 9 Cal.5th 371, 432.)
We disagree the record clearly indicates the trial court would have
imposed the same sentence had it considered the new requirements of
Assembly Bill 124. The court’s comments regarding Guzman’s predatory
behavior and recidivism were made in the context of whether he was a
suitable candidate for probation, not the appropriate sentence to impose.
And in imposing sentence, the court simply stated: “In considering the
aggravating and mitigating factors, I’m going to follow the probation officer’s
recommendation [of the middle term].” The court did not specify the number
of factors it considered or the weight it assigned to them when selecting the
middle term.
But the Attorney General concedes the record does contain information
that suggests Guzman “may have experienced some trauma during his
childhood.” Although the trial court did not refer to Guzman’s social history
as “childhood trauma” (Pen. Code, § 1170, subd. (b)(6)(A)), it made comments
27
after it imposed sentence suggesting it considered Guzman’s social history as
mitigation. In response to a request by defense counsel to redact the social
history from the probation report, the court said the request was “a double-
edged sword” and asked, “Doesn’t that information kind of help him? It is
sort of mitigating as far as his background is concerned. The truth is that I
did consider that in not giving him [the] upper term.”
We note there is no evidence or argument in the record that Guzman’s
childhood experience was “a contributing factor in the commission of the
offense.” (Pen. Code, § 1170, subd. (b)(6)(A).) But neither party would have
had an incentive to develop the record on this potential mitigating factor
since Assembly Bill 124 had not yet been enacted. (See Banner, supra, 77
Cal.App.5th at p. 242 [noting that, prior to the enactment of Assembly Bill
124, neither the defendant nor the trial court had an incentive to assess
whether childhood trauma contributed to the crime].) Consequently, the
record is incomplete as to whether the trial court would have considered
Guzman’s background as “childhood trauma” or that it was “a contributing
factor” in the commission of the offenses. (See Pen. Code, § 1170, subd.
(b)(6)(A).) The record is also incomplete as to the weight the trial court
allocated to the aggravating and mitigating factors, and whether it would
find the imposition of the lower term contrary to the interests of justice.
We thus conclude the record does not clearly indicate the trial court
would have reached the same conclusion even if it had been aware that it had
such discretion under the new sentencing law. Accordingly, remand is
appropriate for the parties to further develop the record for the trial court’s
consideration of any factor under Penal Code section 1170, subdivision
(b)(6)(A), as amended. We express no view as to how the trial court should
exercise its discretion on remand.
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DISPOSITION
Guzman’s sentence is vacated. The matter is remanded to the trial
court for resentencing consistent with this opinion. The judgment is affirmed
in all other respects.
DO, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
29