People v. Delgadillo CA5

Filed 6/27/22 P. v. Delgadillo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081580
Plaintiff and Respondent,
(Kern Super. Ct. No. LF011935A)
v.
MARICELA DELGADILLO, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Smith, Acting P. J., Meehan, J. and Snauffer, J.
Defendant Maricela Delgadillo was convicted by jury trial of three counts of
sexual abuse of a minor. The trial court imposed the upper term, plus a consecutive term
and a concurrent term. On appeal, defendant contends we must reverse and remand for
resentencing based on both Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 695, § 5) (Assembly Bill 124) and Senate Bill No. 567 (2021–2022 Reg. Sess.) (Stats.
2021, ch. 731, § 1.3) (Senate Bill 567), both of which amended Penal Code, section 1170,
subdivision (b).1 The People concede Assembly Bill 124 applies here (In re Estrada
(1965) 63 Cal.2d 740; People v. Flores (2022) 73 Cal.App.5th 1032, 1039) and requires
that we remand for resentencing. The People also correctly observe that our acceptance
of this concession moots the Senate Bill 567 issue. We accept the concession, vacate the
sentence, and remand for resentencing conducted in light of all applicable legislation.
BACKGROUND
Defendant sexually molested the minor victim for many years until he divulged
the molestation to a school counselor; defendant was arrested.
On August 28, 2018, the Kern County District Attorney filed an information
charging defendant with a lewd and lascivious act upon the victim when he was under the
age of 14 years (§ 288, subd. (a); count 1), a lewd and lascivious act upon the victim
when he was 14 or 15 years old and defendant was at least 10 years older than he (§ 288,
subd. (c)(1); count 2), and sodomy with the victim when he was under the age of 18 years
(§ 286, subd. (b)(1); count 3).
On July 15, 2020, a jury found defendant guilty on all counts.
On August 12, 2020, the trial court sentenced defendant to the upper term of
eight years on count 1, plus a consecutive eight-month term on count 2 and a concurrent
eight-month term on count 3, for a total of eight years eight months in prison.
The same day, defendant filed a notice of appeal.
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
DISCUSSION
At the time of defendant’s sentencing, section 1170, subdivision (b) permitted trial
courts to select the appropriate term “within the sound discretion of the court.” (Former
§ 1170, subd. (b).) On January 1, 2022, while this appeal was pending, several changes
to section 1170 became effective. Pursuant to Senate Bill 567, the middle term has
become the presumptive term (§ 1170, subd. (b)(1)), and the trial court may impose an
upper term only if there is one or more aggravating circumstances based on facts either
“stipulated to by the defendant, or … found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial” (§ 1170, subd. (b)(2)). Pursuant to Assembly
Bill 124, trial courts must impose the lower term (unless contrary to the interests of
justice) if certain circumstances—such as defendant’s own “psychological, physical, or
childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence”—contributed to the commission of the offense (§ 1170, subd. (b)(6)(A)).
Here, Assembly Bill 124 requires resentencing because there was evidence
suggesting defendant had endured psychological, physical, or childhood trauma. These
circumstances could conceivably support a finding that defendant’s prior trauma played a
role in her commission of the offenses, thereby triggering the presumption that a low-
term sentence is appropriate. We must therefore remand the matter so the trial court can
resentence defendant in light of Assembly Bill 124’s requirements. We vacate the
sentence and remand for a full resentencing hearing. On remand, the trial court shall
revisit all of its sentencing choices in light of new and applicable legislation, including
Senate Bill 567. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a
sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all
counts is appropriate’ ”]; People v. Garcia, (2022) 76 Cal.App.5th 887, 902–903.)
DISPOSITION
The sentence is vacated and the matter remanded for resentencing. In all other
respects, the judgment is affirmed.
3.