People v. Morales CA2/5

Filed 8/18/23 P. v. Morales CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B321868
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. MA077249)
JAIME CASTANEDA MORALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert G. Chu, Judge. Reversed and
remanded.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jason Tran and Shezad H. Thakor,
Deputy Attorneys General, for Plaintiff and Respondent.
Jaime Casteneda Morales was sentenced in connection with
his convictions of forcible rape (Pen. Code,1 § 261, subd. (a)(2);
count 1) and misdemeanor child molestation (§ 647.6, subd. (a)(1);
count 8) shortly after amendments to the Determinate
Sentencing Law took effect on January 1, 2022. As the People
concede, the parties and the trial court were aware of the revised
law, but Morales’s sentence was not in accordance with the
amendments. Because the error was not harmless, we reverse
and remand to the trial court for resentencing in accordance with
the current law.
FACTS AND PROCEDURAL HISTORY2
Prosecution’s Case
Count 1: A.M.
At the time of trial, A.M. was 19 years old. Morales was
her mother’s former boyfriend and father of A.M.’s sister N.M.
Morales became involved with A.M.’s mother when A.M. was nine
years old, and began living in Lancaster with A.M., her sisters
J.M. and N.M., and their mother when A.M. was 10 or 11 years
old. Morales was the sole income provider in the family. A.M.
was always uncomfortable with Morales. He touched her breasts
for the first time when she was nine years old.
1 All further statutory references are to the Penal Code.
2 Morales was charged with multiple sex offenses, but the
jury acquitted him of all but the two counts discussed in this
opinion.
2
A.M. testified regarding an incident that occurred when she
was 14 years old. A.M. and Morales were alone in his truck.
They were coming home after running errands and it was getting
dark. Morales stopped the truck unexpectedly in the open desert
behind the neighborhood where they lived. A.M. asked Morales
why they had stopped, but he did not respond. He started
“coming on” to her and touching her upper thighs. She pushed
him away repeatedly. Morales said in Spanish, “ ‘Come on. Let
me just do this for once.’ ” Morales had made similar comments
before. A.M. told Morales “No.” multiple times, but Morales
continued asking to touch her. This continued for about three
minutes and then Morales jumped over to A.M.’s side of the
truck’s bench seat. A.M. tried to lean toward the door to get out.
Morales put his hand inside A.M.’s pants beneath her underwear
and put his weight on her. A.M. tried to pull her pants up.
Morales put his fingers in A.M.’s vagina for about 30 seconds and
then pulled her pants and underwear down. Morales unzipped
his own pants and put his penis inside A.M.’s vagina for about
two minutes. A.M. tried to push him off the whole time. Morales
stopped and grabbed some tissues. He cleaned himself off and
left the tissues inside his pants. Morales did not say anything to
A.M. afterwards. They just drove home. A.M. did not tell anyone
what happened. A.M. did not have a good relationship with her
mother, and there was no one else she felt close to. A.M. had told
her mother the first time Morales touched her, when she was
nine years old. A.M.’s mother told A.M. that she was crazy and
did not do anything to help her.
In 2019, A.M. visited her aunt for the weekend. A.M.’s
mother called and told her to come home because she did not like
it when A.M. spent time with her aunt. A.M. and her mother
3
argued. A.M. was afraid to go home. Morales had been coming
into her room at home at night and trying to kiss and touch her.
He tried to put his hands in A.M.’s pants and she had kicked him
away. This occurred two to three times a week. A.M. told her
aunt about the incidents with Morales. Her aunt said A.M. could
stay with her as long as A.M. wanted to, and she took A.M. to the
police station the next day. A.M. was concerned about disclosing
what happened to her because without Morales her family could
lose the house, they might not be able to pay the bills, and her
sister N.M. might have to grow up without a father.
Count 8: J.M.
At the time of trial, A.M.’s sister J.M. was 17 years old. On
Halloween in 2018, when J.M. was 13 years old, J.M. and N.M.
were home alone. N.M. was sleeping in the bedroom when
Morales arrived. Morales kissed J.M.’s neck and rubbed her
breast over her clothes. He began pushing her towards the couch.
Morales asked J.M. if she could keep a secret. J.M. ran outside,
and stayed outside for half an hour until her mother and A.M.
came home. J.M. did not tell A.M. what happened.
Defense Case
Morales testified that he began living with A.M. and J.M.
in 2011. He was a father figure to them and husband to their
mother. A.M. “was very trusting [of Morales],” and they often
watched T.V. together. He and A.M. had consensual sex in his
truck. She did not push him away or tell him to stop. A.M.
pursued Morales. She flirted with Morales and hugged him.
4
A.M.’s mother got upset at A.M. because she spent time in
Morales’s bedroom every day. A.M. and her mother did not have
a good relationship.
Morales denied having sexual contact with J.M. Morales
thought A.M. was manipulating J.M. to get a benefit.
Morales testified that he was convicted of assault with a
deadly weapon on April 12, 2011.
Sentencing
After the jury returned verdicts of guilty on count 1 and
count 8, Morales admitted in a bifurcated proceeding that he had
suffered a prior conviction within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).3 At
the sentencing hearing, the court stated that it intended to
sentence Morales to the maximum time allowed, calculated as 16
years in state prison in count 1 with a consecutive term of 364
days servable in any penal institution in count 8. The court
found that the circumstances in aggravation outweighed any
mitigating circumstances. Defense counsel argued that
amendments to section 1170, subdivisions (b)(1) and (2), which
became effective on January 1, 2022, required the court to impose
the middle term. Pursuant to amended subdivision (b)(2), all
circumstances in aggravation must have either been stipulated to
by the defendant or have been found true beyond a reasonable
doubt at a jury or bench trial. No aggravating factors had been
stipulated to or found true by the jury in Morales’s case. Counsel
also moved to have Morales’s prior strike conviction stricken.
3 The jury returned not guilty verdicts on other counts, and
a not true finding on an enhancement.
5
The trial court stated that it considered the general
objectives of sentencing, including protecting society,
punishment, deterrence, and Morales’s criminal history. The
court found that Morales was prone to violence as evidenced by
the facts of this case and his prior strike conviction. Morales did
not commit the offenses as a result of provocation, coercion, or
duress. Morales was not youthful or inexperienced. A.M. was
particularly vulnerable. Morales took her to a secluded location
in his vehicle. He took advantage of A.M.’s strained relationship
with her mother. Morales also molested J.M. and appeared to be
grooming her. Morales was a threat to society. He showed no
remorse, and blamed A.M. for the rape. Morales did not
understand that a 14-year-old child cannot consent to sexual
intercourse, and did not appreciate the trauma he had inflicted
on A.M. Morales would continue his predatory behavior if not
imprisoned.
The court denied Morales’s motion to strike his prior strike
conviction and denied probation. Morales was sentenced to the
high term of eight years in count 1, doubled pursuant to the
Three Strikes law, plus a consecutive term of 364 days in count 8.
DISCUSSION
Morales contends that the trial court improperly relied on
aggravating circumstances that he had not stipulated to and that
had not been found true beyond a reasonable doubt in a jury or
court trial. We agree with the parties that this was error.
Because we cannot find the error harmless, we reverse and
remand to the trial court for resentencing.
6
Prior to Morales’s sentencing hearing, Senate Bill No. 567
(2021–2022 Reg. Sess.) (Senate Bill 567) amended section 1170,
former subdivision (b)(1) to make the middle term the
presumptive sentence for a term of imprisonment. The court may
impose a higher sentence “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.”4 (§ 1170, subd.
(b)(2).)
The Courts of Appeal are in agreement that a trial court’s
failure to comply with the requirements of section 1170,
subdivisions (b)(1)–(b)(3) is reviewed for harmless error. (People
v. Flores (2022) 75 Cal.App.5th 495, 500 ; People v. Lopez (2022)
78 Cal.App.5th 459, 465 (Lopez); People v. Dunn (2022) 81
Cal.App.5th 394, 401; People v. Lewis (2023) 88 Cal.App.5th
1125, 1131.) The precise inquiry is disputed (Lewis, p. 1131), and
the issue is presently pending before our Supreme Court (People
v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted
Aug. 10, 2022, S274942). We need not choose one of the various
approaches to resolve this case, however, as the error is not
harmless under any standard adopted by the Courts of Appeal,
which all hold that the trial court must have relied on at least
one aggravating circumstance that the jury would have found
4 There is an exception to the requirement that the finding
must be made at a trial held before a jury: “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).)
7
true beyond a reasonable doubt before the error may be found
harmless. (See Flores, at p. 500 [one aggravating factor]; Lopez,
at pp. 465–466 [all aggravating factors]; Dunn, at p. 401 [one
aggravating factor]; Lewis, at p. 1137 [one aggravating factor].)
In this case, the trial court relied on two overarching
aggravating circumstances to impose the high term in count 1:
(1) A.M. was a particularly vulnerable victim (Cal. Rules of
Court, rule 4.421(a)(3)), and (2) Morales is prone to violence and a
danger to society (Id., subd. (b)(1)).5 We cannot find beyond a
reasonable doubt that a jury would have found these two factors
true beyond a reasonable doubt.
“ ‘ “[A] ‘particularly vulnerable’ victim is one who is
vulnerable ‘in a special or unusual degree, to an extent greater
than in other cases.’ ” ’ [Citation.] ‘ “ ‘Vulnerability means
defenseless, unguarded, unprotected, accessible, assailable, one
who is susceptible to the defendant’s criminal act.’ ” ’ [Citation.]
A victim is considered particularly vulnerable ‘where the age or
physical characteristics of the victim, or the circumstances under
which the crime is committed, make the defendant’s act
especially contemptible.’ ” (People v. Lewis, supra, 88
Cal.App.5th at p. 1138.) “Examples of ‘particularly vulnerable
victims’ thus include individuals attacked while asleep [citation]
or unconscious [citation], elderly victims who live alone attacked
5 When analyzing these two aggravating circumstances, the
court considered Morales’s prior conviction, the nature and
circumstances of the instant crime, Morales’s lack of remorse,
and the fact that Morales took advantage of a position of trust or
confidence to commit the rape. We discuss these sub-factors in
connection with each of the two over-arching aggravating
circumstances.
8
at home [citation], and victims of gross vehicular manslaughter
[citation].” (Ibid.)
While there was evidence presented at trial that would
support the finding that A.M. was particularly vulnerable,
including her age, her relative size, and the commission of the
rape in a vehicle in an isolated location, ultimately the inquiry
requires that a subjective, qualitative determination be made.
Many victims of rape are young or smaller than their attackers
and unable to defend themselves, and rape is often committed in
an isolated environment where the victim cannot easily summon
help. We cannot conclude with confidence that the jury would
have found beyond a reasonable doubt that A.M. was particularly
vulnerable in comparison to other rape victims. (See People v.
Sandoval (2007) 41 Cal.4th 825, 840 [“to the extent a potential
aggravating circumstance at issue in a particular case rests on a
somewhat vague or subjective standard, it may be 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”].)
With respect to the second aggravating factor, as the Court
of Appeal, Fourth District, Division Two has observed, there
appear to be no published cases “that meaningfully consider[] the
aggravated circumstance of a defendant engaged in ‘violent
conduct that indicated a serious danger to society.’ . . . [W]hat
constitutes ‘violent conduct that indicated a serious danger to
society’ is vague and subjective.” (People v. Lewis, supra, 88
Cal.App.5th at p. 1139.)
9
The trial court considered the facts of the present crime
and Morales’s prior conviction for assault with a deadly weapon.6
Rape by means of force is a sexually violent offense and a serious
and violent felony. (People v. Sledge (2017) 7 Cal.App.5th 1089,
1101.) However, a jury could conclude that Morales’s conduct in
the instant offense was not sufficiently violent to indicate that he
is a danger to society. A conviction for assault with a deadly
weapon does not require a finding that the underlying conduct
was violent. (People v. Superior Court of Riverside County (2022)
86 Cal.App.5th 268, 279.) Whether the assault was violent, and
whether Morales’s overall conduct indicated a serious danger to
society are individualized, fact-specific inquiries for which there
was arguable conflicting evidence at trial. With respect to the
trial court’s reliance on lack of remorse, at the time of Morales’s
6 Morales disputes whether the trial court properly relied
on his prior conviction to support this aggravating factor. He
concedes that he admitted he suffered the prior conviction within
the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)), but argues that he did not admit this
same prior conviction for purposes of sentencing pursuant to
section 1170, subdivision (b). Under the amended laws, a trial
court may consider a prior conviction based upon a certified
record of conviction, even if the truth of the prior conviction has
not been submitted to a jury or court at trial (§ 1170, subd.
(b)(3)). Here, Morales admitted the prior conviction, and
therefore the record of conviction was not presented to the trial
court for consideration. On appeal, the People did not respond to
Morales’ argument about the failure to meet the requirements of
section 1170, subd. (b)(3). Because we are remanding for
resentencing, we need not resolve the issue, and the parties may
address the issue of proof of the prior conviction on the record
developed at resentencing.
10
trial section 1170, subdivision (b) had not yet been amended;
whether he experienced remorse was not relevant to the issues.
Morales’s belief that A.M. consented to sexual intercourse does
not preclude him from feeling remorse in retrospect. Morales was
not questioned regarding remorse, as he would have been if the
issue was squarely before a jury. The evidence that Morales took
advantage of a position of trust or confidence is strong—he was a
father figure to A.M. and knew that her relationship with her
mother was difficult in part due to the amount of time A.M. spent
with Morales in his room—but it was only one of several factors
that the trial court considered. Given the subjective nature of the
inquiry, we cannot determine whether the jury would have
assessed the facts as the trial court did beyond a reasonable
doubt.
Accordingly, we must remand for resentencing. On
remand, the People should have the option to proceed under the
amended version of section 1170, subdivision (b), which would
permit them to seek to prove aggravating factors to a jury beyond
a reasonable doubt (or to the court if Morales waives the right to
a jury). (Lopez, supra, 78 Cal.App.5th at p. 468.) Alternatively,
the People “may accept resentencing on the record as it stands.”
(Ibid.)
11
DISPOSITION
The sentence is vacated, and the case is remanded for
resentencing. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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