People v. Casimiro CA5

Filed 5/17/23 P. v. Casimiro 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083362
Plaintiff and Respondent,
(Super. Ct. No. MCR065074)
v.
RAYMUNDO LOPEZ CASIMIRO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
Joshua L. Siegel, 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, Darren K. Indermill and Paul E.
O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted defendant Raymundo Lopez Casimiro of committing three sex
offenses against a 13-year-old girl in one incident. He raises two issues on appeal. First,
he claims the prosecutor during closing argument misstated the law about the
SEE CONCURRING OPINION
presumption of innocence. Second, he argues he is entitled to a new sentencing hearing
because of Senate Bill No. 567’s (2021—2022 Reg. Sess.) (S.B. 567) amendments to
Penal Code section 1170, subdivision (b).1 We reject his first claim but agree his
sentence must be reversed and the matter remanded for resentencing due to the changes
made to section 1170. The judgment is therefore affirmed in part and reversed in part.
STATEMENT OF THE CASE
An information charged Casimiro with aggravated sexual assault of a child by rape
(§§ 269, subd. (a)(1), 261, subd. (a)(2); count 1), forcible sexual penetration of a child
under age 14 (§ 289, subd. (a)(1)(B); count 2), and forcible lewd acts on a child under
age 14 (§ 288, subd. (b)(1); count 3).
Casimiro’s first trial ended in a mistrial, but the jury in the second trial convicted
him of the charged offenses. The court sentenced him to the upper term of 12 years on
count 2, plus the upper term of 10 years on count 3 to run consecutively to the term
imposed on count 2, for a total determinate term of 22 years. The court also sentenced
him to an indeterminate term of 15 years to life in count 1.
FACTS
I. Prosecution’s case
In February 2016, when she was 13 years old, F. moved from Mexico to the
United States to live with her aunt and uncle in Madera. Within days of moving into her
aunt’s apartment, she got a job as an agricultural worker, working with her aunt and uncle
at a place where Casimiro was the foreman.
Casimiro was born in 1984 and lived in the apartment next door to F.’s aunt and
uncle. He sometimes grabbed and hugged F. at work, and he told her she had pretty eyes.
F. got a different job in summer 2016 and no longer worked with Casimiro.
1 Undesignated statutory references are to the Penal Code.
2.
One day in August 2016, when she was still 13, F. stayed home because she was
told there was no work for her that day. Her aunt and uncle went to work and she stayed
home alone. Around noon, she took the trash out and saw Casimiro outside in his van.
She went back inside and lied down on the recliner in the living room. She was lying
face up, partly covered with a blanket, and looking at her phone when she heard the front
door opening. She pulled the blanket over her head and pretended to be asleep. She did
not see that it was Casimiro coming inside.
Casimiro took the blanket off F. and knelt next to her. F. asked him what he was
doing inside the apartment, and Casimiro said that F.’s aunt intended to sell her to him.
Casimiro grabbed F.’s hands, putting them in one of his hands, and got on top of her. He
used his other hand to take off F.’s shorts and underwear. He touched her vagina with his
hand and digitally penetrated her for “quite a while.” He removed his finger and inserted
his penis into her vagina and had sexual intercourse with her, also for “quite a while.” F.
told Casimiro that he was hurting her and asked him to stop. F. tried resisting but was too
weak. Casimiro stopped having sex with her when she started bleeding from her vagina.
Casimiro ran from the apartment soon after F. began bleeding. But before he left
he told F. that her aunt told him she (F.) wasn’t working that day, and said that her aunt
knew what he planned to do. He also said that “they” would not believe her anyway. F.
testified the assault felt like it lasted over an hour, but she did not know for sure.
F. threw away the blanket and the clothes she had been wearing because she
wanted no one to see the blood. She testified she felt dirty. She walked to the home of a
friend from her new job and moved in with her. She did not call police because she
thought that she would be “taken away” because she was a minor.
F. lived with her friend for about two months. During that time, she told her
father, who was still in Mexico, that she wanted to move to Salinas. She testified she
wanted to move there because there was more work and it was not as hard. Her father
put her in touch with a friend in Salinas named Guadalupe and F. moved in with her.
3.
About two years after the rape, F. told Guadalupe what Casimiro did to her, and
Guadalupe’s husband called police.
F. spoke with a Salinas police detective. In October 2019, the detective set up a
pretext phone call between F. and Casimiro using the detective’s department-issued
phone, which was recorded and played for the jury. During the short call, F. talked about
Casimiro raping her, but Casimiro denied wrongdoing. Throughout that night and into
the next morning, Casimiro repeatedly called the detective’s phone but the detective did
not answer.
The detective, posing as F., exchanged text messages with Casimiro. Printouts of
the text messages were admitted as an exhibit. Casimiro also sent an audio message to
the detective’s phone which was also played for the jury. In the text messages, the
detective told Casimiro that she (F.) wanted to move back to Madera and wanted him to
promise not to rape her again if she moved back. Casimiro replied, “[W]hy do you say
that if you know that it wasn’t like that[?]” The detective asked, “Do you promise not to
have sex with me again?” Casimiro replied, “Why[?]” The detective said, “Because I’m
a child[.]” Casimiro answered, “I don’t think so[.]” Casimiro never admitted to raping
her but also never denied having sex with her. Casimiro told her that he had loved her
and offered to get F. her own apartment if she moved back to Madera.
II. Defense case
Casimiro testified in his own defense and denied having any sexual contact with F.
and denied going into F.’s apartment. He claimed he called and texted F. because he
wanted to know why she was making these allegations against him.
DISCUSSION
I. No prosecutorial misconduct
Casimiro contends the prosecutor committed misconduct and violated his federal
due process rights by stating in his closing argument that “the presumption of innocence
no longer applies.” The People contend the issue was forfeited below for failure to
4.
object, and Casimiro claims his counsel was ineffective for failing to object. We
conclude the prosecutor’s remarks were permissible under relevant case law, and we thus
need not address forfeiture or assess counsel’s performance.
A. Additional facts
Before closing argument, the court orally instructed the jury that the defendant in a
criminal case is presumed innocent and that this presumption requires the prosecution to
prove the defendant guilty beyond a reasonable doubt. The jury also had these
instructions in writing for use during their deliberations.
The prosecutor began his closing argument:
“Ladies and gentlemen, welcome back. Thank you for
coming and for sticking with us for this trial. Ladies and
gentlemen, now is the time the case will be turned over to you
to decide the truth of the matter in this case.
“Ladies and gentlemen, the presumption of innocence
no longer applies. Evidence has been admitted. Evidence
that proves the defendant guilty beyond a reasonable doubt.”
Casimiro’s trial counsel did not object.
Later, while discussing how to fill out the verdict forms, the prosecutor told the
jury that it would fill out the guilty form “if and when you find the People have proven
the case beyond a reasonable doubt[.]” The prosecutor also asserted that F.’s testimony
had proven Casimiro’s guilt on all counts beyond a reasonable doubt, and finished his
rebuttal argument by stating “the People have proven this case beyond a reasonable
doubt.”
B. Discussion
“ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s … intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
5.
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ”
(People v. Hill (1998) 17 Cal.4th 800, 819.) Where, as here, the “charge of prosecutorial
misconduct is based on a prosecutor’s argument to the jury, the appellate court must
consider whether there is a reasonable likelihood the jury construed or applied any of the
challenged statements in an objectionable manner. [Citation.] The court must consider
the challenged statements in the context of the argument as a whole to make its
determination.” (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159 (Cowan).)
“A defendant in a criminal action is presumed to be innocent until the contrary is
proved[.]” (§ 1096.) In People v. Goldberg (1984) 161 Cal.App.3d 170 (Goldberg), the
Second District Court of Appeal relied on section 1096 to approve of these remarks by
the prosecutor: “ ‘And before this trial started, you were told there is a presumption of
innocence, and that is true, but once the evidence is complete, once you've heard this
case, once the case has been proven to you—and that’s the stage we’re at now—the case
has been proved to you beyond any reasonable doubt. I mean, it’s overwhelming. There
is no more presumption of innocence. Defendant Goldberg has been proven guilty by the
evidence.’ ” (Goldberg. at p. 189, italics omitted.) The court noted the jury had been
properly instructed on the presumption of innocence and determined that “the prosecutor
essentially restated, albeit in a rhetorical manner, the law as reflected in …
section 1096[.]” (Ibid.) Thus, the court concluded that the prosecutor’s remarks had
“effectively preserv[ed] the presumption up and until unanimous agreement [was]
reached,” which occurred at “the close of evidence in a persuasively prosecuted case.”
(Id. at pp. 189—190.)
The California Supreme Court addressed similar remarks in People v. Booker
(2011) 51 Cal.4th 141 (Booker). There, the prosecutor had argued, “ ‘I had the burden of
proof when this trial started to prove the defendant guilty beyond a reasonable doubt, and
6.
that is still my burden…. [¶] The defendant was presumed innocent until the contrary
was shown. That presumption should have left many days ago. He doesn’t stay
presumed innocent.’ ” (Id. at p. 183.) After the defendant objected, the trial court
instructed the jury that the presumption of innocence persisted unless and until the jury
concluded the defendant was guilty. (Id. at pp. 183—184.) The prosecutor then
continued, “ ‘As the Court instructed you, I was correct, that the defendant starts out with
the presumption of innocence. That doesn’t stay. That isn’t an automatic thing forever.
That’s why we have a trial. Once the evidence convinces you he is no longer innocent,
the presumption vanishes. That’s all it is.’ ” (Id. at p. 184.) The Supreme Court
expressly approved Goldberg’s reasoning and held the prosecutor’s remarks were proper
because they merely encouraged the jury to “return a verdict in his favor based on the
state of the evidence presented.” (Id. at p. 185.)
The prosecutor’s remarks here were essentially the same as those approved in
Goldberg and Booker. His remark that the presumption of innocence “no longer
applie[d],” considered in context, was a permissible statement about the strength of the
evidence. The remark essentially conveyed that the presumption of innocence no longer
applied because the evidence proved Casimiro guilty beyond a reasonable doubt. That
the court correctly instructed the jury on the presumption of innocence supports this
interpretation of the prosecutor’s remarks. We disagree with Casimiro that the prosecutor
was arguing that the presumption of innocence no longer applied as a procedural matter.
We thus conclude the prosecutor’s argument here was not an incorrect statement of the
law and, instead, was a permissible argument about the weight of the evidence of guilt.
Casimiro unpersuasively relies on People v. Dowdell (2014) 227 Cal.App.4th
1388 (Dowdell), where the Sixth District Court of Appeal concluded the prosecutor
committed misconduct by stating that “ ‘[t]he presumption of innocence is over.’ ” (Id. at
p. 1407, italics omitted.) The prosecutor first used this phrase while discussing the state
of the evidence, which the appellate court determined was analogous to the remarks
7.
approved in Goldberg. (Dowdell, at pp. 1407—1408.) However, the court held that the
prosecutor had committed misconduct by using the phrase a second time when he said,
“ ‘It’s fairly obvious that [the defendant] committed all of the crimes we are accusing him
of. The presumption of innocence is over. He has gotten his fair trial. Be thorough,
deliberate, and come back with guilty verdicts on all counts.’ ” (Ibid., italics omitted.)
The prosecutor’s remarks thus improperly “implied that the ‘fair trial’ was over” and that
the jury should consequently no longer “respect the presumption of innocence.” (Id. at
p. 1408.)
Dowdell is distinguishable. That case essentially involved two statements—the
first one proper, the second one improper. What made the second one improper was that
it was tied not to a discussion of the evidence but to the idea that “the ‘fair trial’ was
over.” (Dowdell, supra, 227 Cal.App.4th at p. 1408.) In other words, the second
statement improperly conveyed that the presumption of innocence no longer applied as a
procedural matter. In contrast, Casimiro’s prosecutor tethered his claim that the
presumption of innocence no longer applied to the idea that the evidence had proven
Casimiro guilty. His remarks were therefore more analogous to those approved in
Booker and Goldberg than those found improper in Dowdell.
We are also not persuaded by Casimiro’s reliance on Cowan, which held that the
prosecutor committed misconduct by stating, “Let me tell you that presumption [of
innocence] is over. Because that presumption is in place only when the charges are read.
But you have now heard all the evidence. That presumption is gone.’ ” (Cowan, supra,
8 Cal.App.5th at p. 1154.) Although the Cowan prosecutor’s remarks also referred to the
state of the evidence, they are distinguishable from the ones here. The statement that the
presumption of innocence was “in place only when the charges are read” impermissibly
conveyed that the presumption no longer applied as a procedural matter once the trial
began. Here, in contrast, the prosecutor did not suggest that the presumption had ended
before the close of evidence and that the presumption was unrelated to the evidence.
8.
Finally, Casimiro’s cites U.S. v. Perlaza (9th Cir. 2006) 439 F.3d 1149 (Perlaza).
There, the prosecutor argued to the jury, “ ‘[The presumption of innocence], when you go
back in the room right behind you, is going to vanish when you start deliberating. And
that’s when the presumption of guilt is going to take over you….’ ” (Id. at p. 1169, italics
omitted.) The Ninth Circuit ruled that the prosecutor’s remark constituted misconduct,
and that the trial court’s curative instruction failed to correct its initial ratification of the
prosecutor’s argument when it stated in the presence of the jury, “ ‘That’s proper rebuttal.
Go ahead. You are all right.’ ” (Id. at p. 1171, fn. 25.) Perlaza, which is not binding on
this court, is distinguishable as not only did that prosecutor make an incorrect statement
of law—“ ‘presumption of guilt’ ”—but the error was compounded by the trial court’s
initial ratification of the misstatement—“ ‘[y]ou are all right’ ”—and the Ninth Circuit
ruled the curative instruction neither set forth the prosecutor’s burden of persuasion, that
is, proof beyond a reasonable doubt, nor clarified that the presumption of innocence “
‘go[es] with the jury when it deliberates.’ ” (Id. at pp. 1171—1172 & fn. 25.) Nothing of
that sort occurred here. Moreover, the prosecutor here emphasized that he bore the
burden of proof beyond a reasonable doubt. As such, unlike the Perlaza jury, Casimiro’s
jury was not misled.
We find no prosecutorial misconduct or violation of Casimiro’s due process rights.
II. S.B. 567
Casimiro also contends the matter must be remanded for resentencing in light of a
change to the statutory sentencing scheme enacted while his appeal was pending.
Because his sentence included upper terms on two counts, he claims he is entitled to be
resentenced under a recently enacted portion of section 1170 now governing trial courts’
discretion when imposing one of three possible terms under the determinate sentencing
law. We agree.
9.
A. Additional background
As discussed, the court sentenced Casimiro to the upper term on the forcible
sexual penetration count (count 2) and the forcible lewd acts count (count 3). The
probation report, which the sentencing court needed to consider (§ 1203,
subdivision (b)(3)), listed two factors in aggravation: (1) Casimiro’s “prior convictions
as an adult are numerous and increasing in seriousness” (see Cal. Rules of Court,2
rule 4.421(b)(2)), and (2) his “prior performance on probation was unsatisfactory, as he
sustained violations of probation and committed new law violations while on probation”
(see rule 4.421(b)(4) and (b)(5)).3 The report stated “[t]here are no cited factors in
mitigation fully applicable.”
The probation report also summarized Casimiro’s prior record. Casimiro had
suffered five prior convictions according to the report, three misdemeanors and two
felonies. Two of the misdemeanors were for driving under the influence (Veh. Code,
§ 23152, subds. (a) & (b)) and the third was for theft (§ 484, subd. (a)). One felony was
for domestic violence (§ 273.5, subd. (a)) and the other was for being a felon in
possession of a firearm (§ 29800, subd. (a)(1)). For purposes of our discussion, based on
the record before us, nothing regarding Casimiro’s criminal history was presented to the
trial court in the form of “certified record[s] of conviction.” (See § 1170, subd. (b)(3).)
At the sentencing hearing, the trial court agreed with the probation officer that
Casimiro’s five prior convictions were numerous and of increasing seriousness. The
court also found that Casimiro’s prior performance on probation was unsatisfactory. It
further found Casimiro had unsuccessfully completed probation in two prior cases and
2 Undesignated references to rules are to the California Rules of Court.
3 Rule 4.421(b)(4) lists as an aggravating factor relating to the defendant: “The
defendant was on probation … when the crime was committed[.]” Rule 4.421(b)(5) lists
as an aggravating factor: “The defendant’s prior performance on probation … was
unsatisfactory.”
10.
found that Casimiro was on probation when he committed the current crimes. It found
Casimiro was remorseless and “would present a substantial danger to others” if released
on probation.
In imposing the upper terms on counts 2 and 3, the court stated the aggravating
factors “far outweigh” the mitigating factors. The court specified the following
aggravating factors to support the decision: Casimiro had suffered numerous prior
convictions (see rule 4.421); he was on probation when he committed the current offenses
(see rule 4.421); his prior performance on probation was unsatisfactory (see rule 4.421);
F. was a particularly vulnerable victim (see rule 4.421); the way the crime was committed
indicated planning (see rule 4.421); he took advantage of a position of authority (see rule
4.421); and he has engaged in violent conduct indicating “that he presents a serious
danger to the public” (see rule 4.421). The court restated it found no factors in
mitigation.
C. Analysis
In late 2021, S.B. 567 was signed into law, amending the determinate sentencing
scheme in section 1170, subdivision (b). Before the bill’s passage, section 1170,
subdivision (b), permitted sentencing courts to impose determinate sentences comprised
of either the lower, middle, or upper terms. Sentencing courts had broad discretion to
impose any of the three terms and could make factual findings on aggravating or
mitigating circumstances as described in California Rules of Court, rules 4.421 and
4.423.
On January 1, 2022, under the newly amended law, the middle term was made the
presumptive maximum term of imprisonment. (§ 1170, subd. (b)(1).) Now, sentencing
courts may only impose the upper term sentence where there are circumstances in
aggravation that justify imposition of a term of imprisonment exceeding the middle term,
and the facts underlying all of the aggravating circumstances have been stipulated to by
the defendant or are found true beyond a reasonable doubt by a jury or a trial court.
11.
(§ 1170, subd. (b)(1), (2).) However, “the court 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.” (§ 1170, subd. (b)(3).)
Without evidence to the contrary, amendments to statutes that reduce punishment
for a particular crime apply to all defendants whose judgments are not yet final on the
amendment’s operative date. (In re Estrada (1965) 63 Cal.2d 740, 744—745.) S.B. 567
does not contain a provision intending only prospective application and so applies to all
cases not yet final on January 1, 2022. (People v. Dunn (2022) 81 Cal.App.5th 394, 402,
review granted Oct. 12, 2022, S275655 (Dunn); People v. Lopez (2022) 78 Cal.App.5th
459, 465.) The parties recognize, as do we, that the ameliorative benefits of S.B. 567
apply retroactively to Casimiro’s non-final case.
The parties disagree, however, on the appropriate remedy. Defendant argues the
case must be remanded so that the trial court may exercise its discretion under amended
section 1170, subdivision (b), and decide whether to impose the middle or upper terms on
the two counts at issue. The People argue any error was harmless under the standard
articulated by a panel of this court in Dunn, supra, 81 Cal.App.5th 394.
Our colleagues in Dunn articulated the appropriate harmlessness test as follows:
“The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury
would have found one aggravating circumstance true beyond a reasonable doubt and
(1)(b) whether there is a reasonable probability that the jury would have found any
remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating
circumstances relied upon by the trial court would have been proved to the respective
standards, any error was harmless. If not, the reviewing court [must determine]
(2) whether there is a reasonable probability that the trial court would have imposed a
sentence other than the upper term in light of the aggravating circumstances provable
from the record as determined in the prior steps. If the answer is no, the error was
harmless. If the answer is yes, the reviewing court vacates the sentence and remands for
12.
resentencing consistent with section 1170, subdivision (b).” (Dunn, supra, at pp. 409—
410, fn. omitted.)
Casimiro argues that his sentences on counts 2 and 3 are inconsistent with
section 1170, subdivision (b)(2) and (b)(3), because none of the aggravating
circumstances relied upon by the sentencing court were either found true beyond a
reasonable doubt or admitted by Casimiro. He thus contends the upper terms on counts 2
and 3 were imposed in error. The People concede that not all of the aggravating
circumstances are consistent with the amended statute but maintain that one of the
aggravating circumstances was admitted by Casimiro’s trial counsel in a sentencing
memorandum.4 The People also maintain that, in any event, any noncompliance with
section 1170, subdivision (b), was harmless under the test articulated in Dunn, supra,
81 Cal.App.5th 394.
We agree that a two-step analysis is necessary. However, even assuming we agree
with Dunn’s articulation of step 1(a), we disagree with Dunn’s application of the Watson5
harmless error analysis, particularly at the second step. At the first step, a harmless error
analysis cannot establish resentencing is unwarranted—a second step is required.
4 The People contend the probation report proves that Casimiro’s prior convictions
are numerous and of increasing seriousness, that he failed on probation, and that he was
on probation when he committed the present offenses. This presumes that a probation
report is a certified record of conviction, but it is not. (Dunn, supra, 81 Cal.App.5th at
p. 403.)
Also, Casimiro’s counsel filed a sentencing memorandum in which he recounted
Casimiro’s criminal history and prior probation performance. Counsel listed Casimiro’s
five prior convictions and disputed that they were “numerous” and “increasing in
seriousness.” The People contend this is an admission of Casimiro’s five prior
convictions. (See § 1170, subd. (b)(2).) Casimiro responds the memorandum, which was
submitted before S.B. 567’s enactment, was not intended to serve as a stipulation to any
aggravating factors, and thus it would be unfair to use it for the present purpose of
complying with section 1170, subdivision (b)(2). As we will explain, we need not settle
this dispute.
5 People v. Watson (1956) 46 Cal.2d 818.
13.
Moreover, at the second step, if the reviewing court finds that some, but not all, of the
aggravating circumstances relied on by the trial court have been proved to the standards
in the first steps, the question at the second step is not “whether there is a reasonable
probability that the trial court would have imposed a sentence other than the upper term
in light of the aggravating circumstances[.]” Instead, as explained in People v. Lewis
(2023) 88 Cal.App.5th 1125 (Lewis), the question at the second step is “whether the
record clearly indicates that the trial court would have imposed the same sentence under
the new law.” (Id. at p. 1138, citing People v. Gutierrez (2014) 58 Cal.4th 1354.)
We need not determine here whether any of the aggravating circumstances
complied with amended section 1170, subdivisions (b)(2) and (b)(3) or were proven to
the standards of the first steps of Dunn’s harmlessness test. This is because even if all of
the aggravating circumstances were proven, nothing in the record “clearly indicates” the
trial court would still have imposed two upper terms had section 1170,
subdivision (b)(1)—imposing the presumptive midterm—been in effect when Casimiro
was sentenced. (Lewis, supra, 88 Cal.App.5th at p. 1134.) The trial court’s remark that
the aggravating factors “far outweigh[ed]” the mitigating factors is not a clear indication
in the circumstances here that the trial court would reimpose the two upper terms given
the new presumptive midterm.
Because the changes made to section 1170 retroactively apply, on remand the trial
court must incorporate them when it resentences Casimiro and must make any requisite
findings accordingly. Furthermore, “[w]e conclude the need to apply amended
section[]1170, subdivision (b) ... creates sufficiently ‘ “changed circumstances” ’
[citation] to warrant a full resentencing.” (People v. Jones (2022) 79 Cal.App.5th 37,
46.) On remand, therefore, the trial court may fully resentence defendant anew when it
incorporates the new legislative changes. (See People v. Valenzuela (2019) 7 Cal.5th
415, 424—425 [“[T]he full resentencing rule allows a court to revisit all prior sentencing
14.
decisions when resentencing a defendant.”]; accord People v. Buycks (2018) 5 Cal.5th
857, 893 [“ ‘the full resentencing rule’ ”].)
DISPOSITION
The matter is remanded for a full resentencing in a manner consistent with this
opinion. Should the sentence change, the superior court clerk is directed to prepare an
amended abstract of judgment and forward certified copies to the appropriate entities.
In all other respects, the judgment is affirmed.
SNAUFFER, J.
I CONCUR:
MEEHAN, J.
15.
DETJEN, Acting P. J., Concurring.
I concur with the majority opinion in rejecting defendant Raymundo Lopez
Casimiro’s claim of prosecutorial misconduct. I also agree with the majority opinion’s
disposition in that I conclude defendant’s sentence must be vacated and the matter
remanded for resentencing consistent with the requirements of Senate Bill No. 567
(2021–2022 Reg. Sess.) (Senate Bill No. 567).
I write separately, however, to explain that I concur in the conclusion on the
Senate Bill No. 567 issue by applying the standard of harmless error articulated in People
v. Dunn (2022) 81 Cal.App.5th 394, 401, review granted October 12, 2022, S275655.1
My disagreement with the majority stems from my view that Senate Bill No. 567, in
modifying Penal Code2 section 1170, subdivision (b)(1) through (5), did not change how
the trial court exercises its discretion to select a term of imprisonment, nor did it change
the factors that the court considers in exercising its discretion; it simply codified and
made explicit the longstanding standard for appropriate exercise of discretion in selecting
a term of imprisonment when a statute specifies three possible terms.
The Gutierrez instruction (People v. Gutierrez (2014) 58 Cal.4th 1354(Gutierrez))—which requires “remand for resentencing unless 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’ ”—applies where a trial court makes a sentencing
decision without “awareness of the full scope of discretion” that it has, or for instance,
where the standard for exercise of discretion has changed while the matter is on direct
appeal. (Gutierrez, at p. 1391; see In re T.A. (2023) 90 Cal.App.5th 347, 354; Lewis,
supra, 88 Cal.App.5th at p. 1143 (conc. opn. of Raphael, J.); People v. McDaniels (2018)
1 My reasons for disagreement largely mirror those stated by Justice Michael J.
Raphael in his concurring opinion in People v. Lewis (2023) 88 Cal.App.5th 1125(Lewis).
2 Undesignated statutory references are to the Penal Code.
22 Cal.App.5th 420, 425–426.) It is necessary in such situations to ensure that harmless
error review does not become a speculative guessing game of how the trial court would
have exercised its discretion in the first instance had it understood the scope of its
discretion. (McDaniels, at p. 426.)
Senate Bill No. 567, as to subdivision (b)(1) through (5) of section 1170, did not,
however, change the standard for the exercise of discretion. Before and after Senate Bill
No. 567, the trial court could – and can now – impose the upper term when it determines
“there are circumstances in aggravation of the crime that justify the imposition of a term
of imprisonment exceeding the middle term . . . .”3, 4 (§ 1170, subd. (b)(2).) That
determination is the same determination that the trial court necessarily made in imposing
the upper term prior to Senate Bill No. 567 and requires consideration of the same
circumstances in aggravation and in mitigation. Before and after the modifications to the
determinate sentencing law brought about by Cunningham v. California (2007) 549 U.S.
270, and after the effective date of Senate Bill No. 567, trial courts have been required to
consider and state the circumstances in aggravation and in mitigation in exercising
discretion to select a term of imprisonment. (§ 1170, subd. (b)(5); id., former subd. (c);
3 Section 1170, subdivision (b)(2) and (3) also requires that 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” or be “the
defendant’s prior convictions . . . [having been proved using] a certified record of
conviction.” Steps 1(a) and 1(b) of the Dunn harmless error analysis address that
requirement.
4 The language of section 1170, subdivision (b)(2) does not suggest that a
presumption in favor of the middle term continues to apply after the trial court considers
the circumstances in aggravation and determines that a sentence in excess of the middle
term is justified. (§ 1170, subd. (b)(2) [“[t]he 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 . . . .”]; accord, Cal.
Rules of Court, rule 4.420(b).) Once that determination is made, section 1170,
subdivision (b)(1) and (2) impose no limits upon the trial court’s discretion in selecting
an appropriate term of imprisonment.
2.
Cal. Rules of Court, rule 4.420(b), (i);5 former rule 4.420(b), (e).) At all of those times,
the standard for abuse of discretion in selecting a term of imprisonment has remained the
same: At least “[a] single aggravating factor [has always been required to] support an
upper term sentence.” (People v. Weber (2013) 217 Cal.App.4th 1041, 1064, citing
People v. Osband (1996) 13 Cal.4th 622, 728, 732; accord, People v. Flowers (2022) 81
Cal.App.5th 680, 684, review granted Oct. 12, 2022, S276237; People v. Ortiz (2012)
208 Cal.App.4th 1354, 1371.) The trial court may base its decision on any aggravating
circumstances6 it deems significant that is “ ‘reasonably related to the decision being
made.’ ” (People v. Sandoval (2007) 41 Cal.4th 825, 848.) But, a trial court “abuse[s] its
discretion . . . if it relies upon circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.” (Id. at p. 847.)
Prior to the effective date of Senate Bill No. 567, had a trial court imposed an
upper-term sentence without reliance on any circumstances in aggravation, it would have
constituted an abuse of discretion. (People v. Weber, supra, 217 Cal.App.4th at p. 1064.)
Indeed, courts had to state on the record “[t]he reasons for selecting one of the three
authorized terms of imprisonment referred to in [former] section 1170[, subdivision ](b).”
(Former rule 4.420(e).) Such statements of reasons indicated that the trial court found the
circumstances in aggravation justified an upper-term sentence. By prohibiting a trial
court from imposing the upper term unless the circumstances in aggravation justified
imposition of the upper term, Senate Bill No. 567 codified the long-standing standard for
5 Undesignated references to rules are to the California Rules of Court.
6 As noted previously, the amendments to section 1170, subdivision (b)(2) and (3),
now require that the trial court rely only on factors for which the underlying facts were
stipulated by the defendant, proved to the jury beyond a reasonable doubt, or were the
defendant’s prior convictions which have been proved by a certified record of conviction.
That change in factfinder and standard of proof does not change the standard for the trial
court’s exercise of discretion where the aggravating circumstances have been proved as
required.
3.
proper exercise of trifecta sentencing discretion. Because the standard has merely been
codified, not changed, a reviewing court does not engage in the kind of speculative
review warned against by Gutierrez and the clear indication standard need not be applied.
Because the trial court in this case has exercised its discretion to impose the upper
term based on the implied conclusion that the aggravating circumstances it found true
justified imposition of the upper term, as the reviewing court, we should consider
whether there is a reasonable probability that the trial court would have reached a
different sentence had it not considered any aggravating circumstances not provable to
the relevant standards.7
As the majority notes, in imposing the upper term on counts 2 and 3, the trial court
relied upon several objective circumstances in aggravation not found true by the jury—
defendant had suffered numerous prior convictions (rule 4.421(b)(2)), he was on
probation at the time of the offense (rule 4.421(b)(4)), and his performance on probation
was unsatisfactory (rule 4.421(b)(5)). The probation report reflects that the probation
officer compiled the list of defendant’s five prior convictions in reliance on the California
Identification and Investigation Bureau database, the Federal Bureau of Investigation
database, the California Department of Motor Vehicles database, and the Madera County
Department of Corrections database.8 In his sentencing memorandum, defendant
acknowledged having suffered those five prior convictions. Defendant did not dispute
the truth of those convictions; he disputed only whether they were “ ‘numerous and
7For the same reason, if an appellate court concludes that all aggravating
circumstances found true by the trial court were provable to the jury to the relevant
standards, there is no need to move to the second step of Dunn because the trial court has
already exercised its discretion to determine that the upper term was justified by the
aggravating circumstances.
8Specifically, the probation officer identified the sources of the information and
defendant’s identification numbers within those databases as follows:
“CII: AXXXXXXXX[, ¶] FBI: 482789WC5[, ¶] CDL: Y9155969[, ¶ and]
MDOC: 167326.”
4.
increasing in seriousness.’ ” I conclude beyond a reasonable doubt that the jury would
find true beyond a reasonable doubt that defendant had suffered those convictions.
Defendant’s convictions are numerous. (See People v. Searle (1989) 213 Cal.App.3d
1091, 1098 [three prior convictions are numerous].) Defendant also acknowledged in his
sentencing memorandum his probation revocations and that he was on probation on the
date of the offenses. I note both of defendant’s probation revocations that did not include
reinstatement occurred on the same date as his sentencing for a new offense, suggesting
that his revocations were based on the commission of a new offense for which he was
convicted. I therefore conclude there is no reasonable probability the jury would not
have found true beyond a reasonable doubt that defendant’s performance on probation
was unsatisfactory and that defendant was on probation on the date of the offenses.
The trial court also, however, relied upon subjective aggravating circumstances
including: the minor victim was “particularly vulnerable” (see rule 4.421(a)(3)), the
“manner in which the crime was committed indicated planning” (see rule 4.421(a)(8)),
defendant “took advantage of a position of authority” (see rule 4.421(a)(11) [“defendant
took advantage of a position of trust or confidence”]), and defendant’s “violent conduct
indicate[d] that he presents a serious danger to the public” (see rule 4.421(b)(1)). 9 Those
circumstances all “rest[] on . . . somewhat vague or subjective standard[s], [such that it is]
difficult for a reviewing court to conclude with confidence that, had the issue been
submitted to the jury, the jury would have assessed the facts in the same manner as did
the trial court.” (People v. Sandoval (2007) 41 Cal.4th 825, 840; see ibid. [such
circumstances “often entail a subjective assessment of the circumstances rather than a
9 While the trial court listed those circumstances in aggravation after noting that it
would impose the sentences consecutively rather than concurrently, the circumstances
identified were those listed in rule 4.421—listing circumstances in aggravation—and not
those factors listed in rule 4.425—listing factors affecting concurrent or consecutive
sentences.
5.
straightforward finding of facts”].) So, there is a reasonable probability the jury would
not have found these aggravating factors true beyond a reasonable doubt.
Moving next to step 2 of the Dunn harmless error analysis, because I conclude
there is a reasonable probability the jury would not have found true four of the seven
aggravating circumstances and because the trial court gave no particular weight to any
aggravating circumstance, I conclude there is a reasonable probability the trial court
would have imposed a sentence less than the upper term had it not relied upon all of the
circumstances it considered. For that reason, I concur in the majority’s disposition.
DETJEN, Acting P. J.
6.