People v. Sanchez CA3

Filed 1/30/23 P. v. Sanchez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C094738
Plaintiff and Respondent, (Super. Ct. No. 20CR002261)
v.
JAVIER MENDOZA SANCHEZ,
Defendant and Appellant.
Defendant Javier Mendoza Sanchez appeals from his convictions for sex offenses.
Based on the recently enacted Penal Code section 1016.7,1 effective January 1, 2022,
defendant requests that we remand the case to the trial court to allow him to seek relief
under the new statute. We conclude defendant is not entitled to relief and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was married to a family member of the victim and was considered the
victim’s uncle. He regularly cared for the victim at his home so she could participate in
1 Undesignated statutory references are to the Penal Code.
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online schooling. In September 2020, the victim told police officers that defendant had
sexually abused her multiple times during these childcare sessions. Defendant digitally
penetrated the victim, orally copulated her, had her orally copulate him, and had
intercourse with her. During one incident, he choked her. There was evidence the victim
was suffering from a sexually transmitted disease. The most recent incident happened the
day before the interview. When police confronted the defendant about the allegations, he
“calmly” said, “ok” with a “defeated demeanor.” Defendant was 29 years old at the time
of the abuse.
Defendant was charged with continuous sexual assault of a child under the age of
14 (§ 288.5, subd. (a)—count I); sexual intercourse or sodomy with a child 10 years old
or younger (§ 288.7, subd. (a)—count II); oral copulation or sexual penetration with a
child 10 years old or younger (§ 288.7, subd. (b)—count III); and sexual penetration of an
incompetent person. (§ 289, subd. (b)—count IV.)
In July 2021, defendant pleaded no contest to counts I and IV, as well as to an
added charge of forcible lewd act on a child (§ 288, subd. (b)—count V), in exchange for
a stipulated aggregate sentence of 29 years. The remaining allegations were dismissed.
Defendant signed a plea agreement stating that he and his attorney discussed the facts of
the case, his potential defenses, waiver of rights, the consequences of the plea, and
“[a]nything else” he believed was important to the plea agreement. In August 2021, the
trial court sentenced defendant to 29 years, as follows: the upper term of 16 years for
count I, the low term of three years consecutive for count IV, and the upper term of 10
years consecutive for count V.
Defendant did not request a certificate of probable cause on appeal.
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DISCUSSION
I
A. Legal background
While defendant’s appeal was pending, the Legislature enacted Assembly Bill No.
124 (2021-2022 Reg. Sess.) (Assembly Bill 124) (Stats. 2021, ch. 695, §§ 4, 5) and
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) (Stats. 2021, ch. 731,
§ 1.3). Both laws became effective January 1, 2022, and amended our determinate
sentencing law to make the middle term the presumptive sentence unless certain
circumstances exist. (§ 1170, subd. (b); People v. Flores (2022) 73 Cal.App.5th 1032,
1038.) In addition, the low term is now the presumed sentence if defendant has
experienced trauma, such as abuse; when a defendant is under the age of 26 years at the
time of offense; or if the defendant was a victim of intimate partner violence or human
trafficking. (§ 1170, subd. (b)(6).)
Assembly Bill 124 also added section 1016.7, which, “[i]n the interest of justice,
and in order to reach a just resolution during plea negotiations,” requires the prosecutor to
“consider during plea negotiations, among other factors, the following circumstances as
factors in support of a mitigated sentence if any of the following were a contributing
factor in the commission of the alleged offense:” (1) if defendant experienced trauma,
including abuse; (2) if defendant was younger than 26 years old at the time of the
offense;2 and (3) if, prior to or during the commission of the offense, the defendant was a
victim of intimate partner violence or human trafficking. (§ 1016.7, subds. (a), (b).)
2 Defendant acknowledges that he was over age 26 at the time of the crimes, and he
does not argue that the prosecutor would be required to consider his age during plea
negotiations.
3
B. Defendant’s claims and analysis
Citing People v. Stamps (2020) 9 Cal.5th 685 (Stamps) and In re Estrada (1965)
63 Cal.2d 740, defendant argues the new section 1016.7, subdivision (a) (hereafter
section 1016.7) is an ameliorative change that makes lighter punishment possible and
therefore applies retroactively to his case, which is not yet final for purposes of Estrada.
Defendant notes the record is silent as to whether the prosecutor considered the new
factors during plea negotiations.3 In addition, defendant argues the plea agreement only
stated that he discussed with his attorney the facts of the case, potential defenses, the
waiver of rights, the consequences of the plea, and “ ‘anything else’ ” he believed was
important to the plea agreement. As such, defendant argues the record is silent as to
whether he even discussed with his attorney whether “ ‘psychological, physical, or
childhood trauma, including, but not limited to abuse, neglect, exploitation, or sexual
violence’ contributed to the commission of the charged offenses. (§ 1016.7, subd.
(a)(1).)” Defendant asks us to remand the matter to give him “the opportunity to decide
whether to seek relief under newly enacted section 1016.7.”
The People respond that defendant is trying to renegotiate his plea deal and that
his appeal must be dismissed because he did not obtain a certificate of probable cause,
which is required under section 1237.54 where a defendant challenges the validity of his
3 Notably, section 1016.7 does not require the prosecutor to verify on the record that
he or she considered one or more of the factors articulated in the statute.
4 Section 1237.5 states: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, except where both of the following are
met: [¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. [¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal with the clerk of the
court.”
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plea on appeal. (Stamps, supra, 9 Cal.5th at p. 694 [ordinarily, a defendant who
challenges a stipulated sentence is challenging the validity of the plea itself and must
have a certificate of probable cause on appeal].) Citing Stamps, defendant argues a
certificate of probable cause is not required here because he is seeking retroactive
application of a newly enacted ameliorative law. (Id. at p. 696-698 [a defendant does not
attack the validity of his plea and does not need a certificate of probable cause when he
argues on appeal that he is entitled to retroactive application of a subsequently enacted
ameliorative law].)
We will address the merits of defendant’s claims.
Ordinarily, provisions in the Penal Code are not retroactive where, as here, the
statute is silent regarding the issue. (§ 3; Stamps, supra, 9 Cal.5th at pp. 698-699.)
However, in Estrada, our Supreme Court held that a statute that “reduced the punishment
for a crime applied retroactively to any case in which the judgment was not final before
the statute took effect.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303
(Lara).) The holding in Estrada rests on the premise that “ ‘[a] legislative mitigation of
the penalty for a particular crime represents a legislative judgment that the lesser penalty
or the different treatment is sufficient to meet the legitimate ends of the criminal law.’ ”
(In re Estrada, supra, 63 Cal.2d at p. 745.)
Courts have applied the Estrada rule to statutes governing penalty enhancements,
substantive offenses, and “statutes that merely made a reduced punishment possible.”
(People v. Frahs (2020) 9 Cal.5th 618, 629.) For example, in Lara, our Supreme Court
determined that the Estrada rule applies to Proposition 57 (as approved by voters, Gen.
Elec. (Nov. 8, 2016)), which prohibits prosecutors from directly filing charges against a
minor in “adult” criminal court and gives juvenile courts the sole discretion to determine,
after conducting a transfer hearing, whether a minor can be tried and sentenced as an
adult. (Lara, supra, 4 Cal.5th at p. 303.) Although Proposition 57 does not mitigate
punishment for a particular crime, Estrada was found to apply because it “reduces the
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possible punishment for a class of persons, namely juveniles.” (Lara, at p. 303.) The
Lara court noted that, unlike adult court, the goal of juvenile court is rehabilitation,
which “can result in dramatically different and more lenient treatment.” (Ibid.)
Similarly, in Frahs, our Supreme Court applied the Estrada rule to section
1001.36, which allows trial courts to offer mental health diversion to criminal defendants
who suffer from a qualifying mental disorder. (People v. Frahs, supra, 9 Cal.5th at p.
631.) The Frahs court noted that, compared to being tried and sentenced, mental health
diversion “ ‘can result in dramatically different and more lenient treatment,’ ” especially
since the trial court is required to dismiss the criminal charges for those who successfully
complete diversion. (Ibid.)
Our Supreme Court also held in Stamps that the Estrada rule applied to Senate Bill
No. 1393 (2017-2018 Reg. Sess.), which eliminated the prior restriction on a court’s
ability to strike a serious felony enhancement in the furtherance of justice. (Stamps,
supra, 9 Cal.5th at p. 699; see also People v. Contreraz (2020) 53 Cal.App.5th 965, 967,
969 [concluding the defendant was entitled to retroactive relief under Senate Bill No. 620
(2017-2018 Reg. Sess.), which amended section 12022.5 to remove the prior restriction
on a court’s ability to strike a firearm enhancement in the interest of justice].)
However, unlike Frahs, Lara, and Stamps, section 1016.7 does not offer
“dramatically different and more lenient treatment” for defendants engaging in plea
bargaining. It does not alter the substantive requirements for conviction, nor does it alter
the penalty for any crime, affect the sentencing triad, give the trial court new power to
strike an enhancement, or affect the substantive burden on the prosecution in a given
case. The procedural statute also does not offer an alternative to adult court or divert a
defendant into a system with different rehabilitative goals, such as the juvenile justice
system. In short, it does not render any of the terms of defendant’s plea bargain invalid.
Instead, section 1016.7 merely requires prosecutors engaged in plea bargaining to
consider, among other factors, the defendant’s youth, or whether prior trauma contributed
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to the commission of the charged offenses. Defendant points to no law suggesting that
prosecutors were previously prohibited from taking such factors into consideration when
striking a plea bargain. As courts have explained, prosecutors have historically had
“broad latitude in taking into account whatever mitigating factors the defense might wish
to advocate in plea bargain negotiations.” (People v. Brooks (2020) 58 Cal.App.5th
1099, 1108; see also Cal. Rules of Court, rule 4.423(c) [broadly defining potentially
mitigating circumstances with respect to sentencing, including “[a]ny other factors . . .
that reasonably relate to the defendant or the circumstances under which the crime was
committed”].) Nothing prevented defendant from arguing during plea negotiations in
2021 that he was entitled to a lesser sentence because prior trauma contributed to the
commission of the charged offenses. We do not doubt that the prosecutor would have
listened to such a claim, given that public officials must discharge their duties in good
faith. (Brooks, supra, at p. 1108.)
We are aware that courts have applied Estrada retroactivity to the changes to
section 1170 that also were enacted as a result of Assembly Bill 124 and Senate Bill 567
(the same set of bills that enacted section 1016.7). (See, e.g., People v. Zabelle (2022) 80
Cal.App.5th 1098, 1109; People v. Flores, supra, 73 Cal.App.5th at p. 1039.) As courts
have explained, the changes to section 1170 are ameliorative because they potentially
lessen punishment for those defendants who were sentenced to the upper term for an
offense, given that section 1170 now favors imposition of the low or middle term.
(Zabelle, supra, at p. 1109.)
Here, in contrast, defendant seeks only the retroactive benefit of section 1016.7.
Unlike revised section 1170, which limits the trial court’s sentencing discretion, section
1016.7 only requires that prosecutors consider prior trauma, among other factors, during
plea negotiations, with no explicit mechanism to enforce this requirement. Defendant
cites no authority that requires us to apply Estrada to all of the changes that came about
as a result of Assembly Bill 124 and Senate Bill 567, especially where the provision at
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issue does not, in effect, offer different or more lenient treatment for defendants given
that prosecutors already had discretion to consider the factors listed in section 1016.7
during negotiations. In sum, we find no merit in defendant’s contentions that this
procedural law is ameliorative within the meaning of Estrada and its progeny.
DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HULL , J.
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