Filed 10/3/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL DORADO,

Defendant and Appellant.

 D082126

 (Super. Ct. No. SCD276163)

APPEAL from a judgment of the Superior Court of San Diego County, 

Charles Rogers, Judge. Affirmed in part, reversed in part, and remanded for 

resentencing.

Cynthia M. Jones, 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 Felicity Senoski, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

INTRODUCTION

The Legislature enacted Penal Code1 section 667.6 in 1979 to increase 

the penalties for persons convicted of certain violent sex offenses. To that 

end, subdivision (c) of section 667.6 (“section 667.6(c)”) provides that when a 

defendant is convicted of multiple sex offenses against the same victim on the 

same occasion, the sentencing court may, in its discretion, impose a full, 

separate, and consecutive sentence for each offense. But when a defendant is 

convicted of multiple violent sex offenses against different victims or against 

the same victim on separate occasions, subdivision (d) of section 667.6 

(“section 667.6(d)”) mandates the sentencing court to impose a full, separate, 

and consecutive sentence for each offense. 

It is settled that sentencing courts are forbidden from relying on a 

single fact to aggravate a sentence twice by imposing both an upper term 

under section 1170, subdivision (b)(1)–(7), and a discretionary consecutive 

sentence under section 667.6(c). In this appeal, we confront an issue of first 

impression: whether the same dual use prohibition applies when the 

consecutive sentence is mandatory under section 667.6(d). We hold that it 

does.

In a previous appeal (People v. Dorado (Oct. 11, 2022, D078342) 

[nonpub. opn.] (Dorado)), we affirmed Daniel Dorado’s convictions for 20 

counts of aggravated sexual assault, rape, sexual penetration, and oral 

copulation of an unconscious or intoxicated person. These crimes involved 

four different victims. We reversed Dorado’s sentence and remanded to allow 

the trial court to exercise its new authority under two newly enacted 

sentencing reforms. (Assembly Bill No. 518 (2021–2022 Reg. Sess.) 

1 All further undesignated statutory references are to the Penal Code.
3

(Assembly Bill 518) [amending § 654]; Senate Bill No. 567 (2021–2022 Reg. 

Sess.) (Senate Bill 567) [amending § 1170, former subd. (b).) 

At resentencing, because three of Dorado’s convictions of rape of an 

intoxicated person (§ 261, subd. (a)(3)) involved different victims, the trial 

court determined they were subject to mandatory full-term consecutive 

sentencing under section 667.6(d). It then imposed the upper term for those

convictions based on the same fact that they involved multiple victims. It is 

this pair of sentencing decisions that we conclude was improper. As a result, 

we remand for a second full resentencing. 

FACTUAL AND PROCEDURAL BACKGROUND

I.

First Appeal After Initial Sentencing

Because Dorado’s appeal is limited to sentencing issues, we describe 

the facts and allegations underlying his case only briefly. Dorado was 

charged in an amended information with 35 felony counts alleging he 

committed sex offenses against eight different women. A jury convicted him 

of 20 counts involving four women: Jane Does 1 through 4 (hereafter Jane 1 

through Jane 4). The convictions arose from separate encounters between 

Dorado and each of the victims in which Dorado gave the victim alcoholic 

beverages and then sexually assaulted her while she was intoxicated and 

unconscious. 

As to Jane 1, the jury found Dorado guilty of aggravated sexual assault 

(count 1; § 220, subd. (a)); rape of an unconscious person (count 2; § 261, 

subd. (a)(4)); rape of an intoxicated person (count 3; § 261, subd. (a)(3)); 

sexual penetration of an unconscious person (counts 4 and 6; § 289, subd. (d)); 

and sexual penetration of an intoxicated person (counts 5 and 7; § 289, 

subd. (e)).
4

As to Jane 2, the jury found Dorado guilty of aggravated sexual assault 

(count 12; § 220, subd. (a)); rape of an unconscious person (count 13; § 261, 

subd. (a)(4)); rape of an intoxicated person (count 14; § 261, subd. (a)(3)); oral 

copulation of an unconscious person (count 15; former § 288a,2 subd. (f)); and 

oral copulation of an intoxicated person (count 16; former § 288a, subd. (i)).

As to Jane 3, the jury found Dorado guilty of aggravated sexual assault 

(count 28; § 220, subd. (a)); rape of an unconscious person (count 29; § 261, 

subd. (a)(4)); and rape of an intoxicated person (count 30; § 261, subd. (a)(3)).

And as to Jane 4, the jury found Dorado guilty of aggravated sexual 

assault (count 31; § 220, subd. (a)); oral copulation of an unconscious person 

(counts 32 and 34; former § 288a, subd. (f)); and oral copulation of an 

intoxicated person (counts 33 and 35; former § 288a, subd. (i)).

At a sentencing hearing in November 2020, the trial court sentenced 

Dorado to a total prison term of 40 years, which included several upper term 

sentences that were imposed on the basis of a host of aggravating sentencing 

factors that were neither admitted by Dorado nor found true by a jury beyond 

a reasonable doubt. 

Dorado appealed. We affirmed his convictions but vacated his sentence 

to allow the trial court to exercise its authority under two sentencing reforms

that became effective January 1, 2022, while Dorado’s appeal was pending. 

The first reform affected section 654. When Dorado was sentenced, 

section 654 required sentencing judges to impose the longest applicable 

sentence when a defendant was convicted of more than one offense based on 

the same conduct. (§ 654, former subd. (a); People v. Mani (2022) 74 

2 Effective January 1, 2019, former section 288a was renumbered as 

section 287. (Stats. 2018, ch. 423, § 49.) The operative information was filed 

in November 2019, but it used the pre-2019 statute number. 
5

Cal.App.5th 343, 379.) Assembly Bill 518 amended section 654 to give 

sentencing judges discretion to impose either the shorter or the longer 

sentence. (§ 654, subd. (a); Mani, at p. 379.) We thus remanded for 

resentencing in part so the court could exercise its new discretion under the 

amended law. 

The second reform affected section 1170, subdivision (b). At the time 

Dorado was sentenced, section 1170, former subdivision (b), left the selection 

of the appropriate term within a sentencing triad to the sentencing judge’s 

“sound discretion.” (§ 1170, former subd. (b); see People v. Lynch (2024) 16 

Cal.5th 730, 747 (Lynch).) Senate Bill 567 later amended section 1170, 

former subdivision (b), to prohibit sentencing judges from imposing an upper 

term sentence unless the facts underlying any aggravating circumstances 

justifying the upper term (other than a prior conviction) “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.” (§ 1170, 

subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) We concluded this 

change in the determinate sentencing law (DSL) also necessitated a remand 

for resentencing after determining that (1) of the numerous aggravating 

factors relied on by the trial court, the jury would have found only three (the 

physical injuries Dorado inflicted on Jane 1, Jane 2, and Jane 4) to be true 

beyond a reasonable doubt, and (2) there was a reasonable probability the 

court would have imposed a lesser sentence if the aggravating factors 

available to support its sentencing decisions were reduced to this subset of 

factors. 
6

II.

Resentencing After Remand

After we remanded the case to the trial court, Dorado was resentenced 

in April 2023. Before we summarize the proceedings on remand, we briefly 

discuss the general principles of sentencing law that framed the court’s 

sentencing decisions.

A. Relevant Principles of Sentencing Law

Pertinent to this appeal, Dorado’s convictions on counts 3, 14, and 30 

for rape of an intoxicated person required the trial court to make two 

sentencing decisions: whether to run the terms consecutively or concurrently 

(§ 669, subd. (a); People v. Catarino (2023) 14 Cal.5th 748, 752 (Catarino)), 

and what term to impose for each count (§ 1170, subd. (b)(1)–(7)). 

In most cases, consecutive sentencing of determinate terms is governed 

by section 1170.1, under which the aggregate term for multiple felonies is the 

sum of the principal term, the subordinate terms, and any enhancements. 

(Catarino, supra, 14 Cal.5th at p. 752, quoting § 1170.1, subd. (a).) The 

principal term is “the greatest term of imprisonment imposed by the court for 

any of the crimes” (§ 1170.1, subd. (a)) and the subordinate terms consist of 

“one-third of the middle term of imprisonment prescribed for each other 

felony conviction for which a consecutive term of imprisonment is imposed”

plus one-third of any applicable enhancements (ibid.). The decision to run 

terms consecutively under section 1170.1 is generally in the court’s 

discretion. (Catarino, at p. 752.) 

But here, consecutive sentencing of the crimes of rape of an intoxicated 

person underlying Dorado’s convictions on counts 3, 14, and 30 was governed 

by section 667.6. (See § 667.6, subd. (e) [listing offenses subject to sentencing 

under § 667.6; id., subd. (e)(1) [identifying rape of an intoxicated person, in 
7

violation of par. (3) of subd. (a) of § 261, as one such offense].) Under section 

667.6(c), courts have discretion to impose a full, separate, and consecutive 

term for each violation of an enumerated sex offense “if the crimes involve the 

same victim on the same occasion.” Section 667.6(d), however, mandates that 

a full, separate, and consecutive term “shall be imposed . . . if the [qualifying] 

crimes involve separate victims or involve the same victim on separate 

occasions.” The predicate finding that enables sentencing under section 

667.6(d) is made by the sentencing judge. (Catarino, supra, 14 Cal.5th at 

p. 754.) Because the statute authorizes a full, consecutive term in place of 

the one-third-the-middle-term limit that otherwise applies to each 

subordinate term under section 1170.1, section 667.6 “is obviously a much 

harsher sentencing measure than section 1170.1.” (People v. Belmontes

(1983) 34 Cal.3d 335, 344.) 

Second, the trial court had to choose which term to impose for the 

crimes of rape of an intoxicated person underlying counts 3, 14, and 30. (See 

§ 264 [sentencing triad for rape as defined in § 261 is three, six, or eight 

years].) Under the newly amended version of section 1170, subdivision (b), 

the court is required to impose the middle term unless there are aggravating 

circumstances that justify imposition of’ an upper term sentence, 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.’ ” (Lynch, supra, 16 Cal.5th at p. 748.) 

B. The Trial Court’s Decisions at Resentencing

Prior to the resentencing hearing, the People elected not to pursue a 

trial of aggravating factors. However, they filed a sentencing brief in which 

they urged the court to reimpose the 40-year aggregate sentence. The People

asserted that counts 3, 14, and 30 were subject to mandatory full-strength 
8

consecutive sentences under section 667.6(d) because Dorado’s crimes 

involved “separate victims.” They also sought the imposition of upper term 

sentences based on either of two aggravating circumstances: (1) that Jane 1, 

Jane 2, and Jane 4 suffered physical injuries, which facts the prosecution 

argued a jury would have found true beyond a reasonable doubt, as this court 

concluded in its harmless error analysis in Dorado, or (2) the crimes involved 

multiple victims.3 

In response, Dorado argued that because Jane 3 (the victim in count 

30) had not suffered physical injuries, this left multiple victims as the only 

factor available to support an aggravated term on this count. He claimed the 

People were improperly relying twice on this factor to recommend imposition 

of the upper term as well as a full, consecutive term. Dorado asked the court 

to consider imposing a total of 32 years consisting of middle term sentences.

The trial court sentenced Dorado to a total prison term of 38 years. It

first determined section 667.6(d) applied and mandated full-strength 

consecutive sentencing on counts 3, 14, and 30 because Dorado stood 

convicted of a qualifying offense against multiple victims. (See § 667.6, 

3 When a jury finds beyond a reasonable doubt that a defendant 

committed crimes against separate victims, it necessarily finds “that the 

crimes involved multiple victims.” (People v. Calhoun (2007) 40 Cal.4th 398, 

408 (Calhoun).) Further, although “multiple victims” is not expressly listed 

as an aggravating factor in the sentencing rules (see Cal. Rules of Court, rule 

4.421 (further unspecified rule references are to the California Rules of 

Court)), the People argued, and Dorado did not and does not dispute, that it 

falls within the “aggravating factor catch-all of Rule of Court 4.408(a)” and 

may be relied on to impose an upper term (see rule 4.408(a) [“[t]he listing of 

factors in these rules for making discretionary sentencing decisions is not 

exhaustive”]; Calhoun, at pp. 405–406 [defendant did not argue deletion of 

the multiple victims factor from the sentencing rules precluded the trial 

court’s reliance on it]).
9

subd. (e)(1).) But it opted not to rely on the victims’ physical injuries to select 

the upper term on any counts. The trial court expressed concern that to rely

on factors that “would have been found true by the jury had those factors 

been submitted to them” would be structural error. The court instead relied 

on the “multiple-victim” factor to impose the upper term of eight years on 

counts 3, 14, and 30. 

In doing so, the trial court recognized it was imposing upper terms and 

full, consecutive terms on counts 3, 14, and 30 based on the same fact: the 

convictions involved multiple victims. The court overruled Dorado’s dual use 

objection, however, based on its view that because one of the two uses—

imposition of a full, consecutive sentence under section 667.6(d)—was 

statutorily mandated, it was not “using the multiple-victim analysis to 

impose consecutive terms” on those counts. 

Thus the trial court selected count 5 as the principal term under 

section 1170.1, subdivision (a), and imposed the middle term of six years on 

that count. It sentenced Dorado to two-year terms (one-third the middle 

term) on each of counts 7, 16, 33, and 35 for a total of eight years, and ran 

these terms as well as the six-year term on count 5 consecutively, thus 

adding a total of 14 years to the 24 total years imposed on counts 3, 14, and 

30. The court imposed middle and upper term sentences on all remaining 

counts and stayed them under section 654. 

DISCUSSION

I.

Dorado Did Not Forfeit His Claim of Dual Use Error

Dorado again challenges his sentence. His primary contention this 

time is that the trial court committed dual use error by relying on the fact 
10

that his crimes involved multiple victims to impose upper terms as well as 

full, consecutive terms on counts 3, 14, and 30.

The People contend Dorado forfeited his appellate challenge to two of 

the three counts—counts 3 and 14—by failing to raise a dual use objection to 

those counts during the sentencing hearing. The People’s forfeiture claim is 

based on the premise that although Dorado objected at the sentencing 

hearing, the objection was limited to “the context of count 30.” It is true that 

to preserve certain sentencing issues for appeal, including complaints the 

court “double-counted a particular sentencing factor” (People v. Scott (1994) 

9 Cal.4th 331, 353 (Scott)), the defendant must raise the issues “at the time of 

sentencing” (id. at p. 351). However, the record does not bear out the People’s 

contention that Dorado failed to raise a timely objection as to counts 3 and 14 

as well as count 30. 

Before the sentencing hearing, Dorado raised a dual use objection in his 

written response to the People’s sentencing statement. It was this objection 

that was limited to count 30. His objection was limited at this juncture 

because he was responding to the People’s sentencing statement, in which the 

People had identified at least one alternative factor—physical injuries to 

Jane 1 and Jane 2—to support imposing the upper term for counts 3 and 14. 

Thus, the specter of dual use had not yet been raised as to counts 3 and 14. 

At the sentencing hearing, however, the trial court brought up the 

possibility of relying on the multiple victims factor to impose upper terms on 

all counts subject to mandatory consecutive sentencing under section 

667.6(d). In response, Dorado’s counsel argued the multiple victims factor 

could not be used to impose both consecutive and upper terms on any count. 

It is thus not the case that defense counsel’s dual use objection at the 
11

sentencing hearing was limited to count 30. Because the factual premise of 

the People’s forfeiture argument fails, so too does the argument.

We turn to the merits and consider de novo whether the court 

misunderstood the proper scope of its sentencing discretion. (People v. Russel

(1968) 69 Cal.2d 187, 195 [“all exercises of legal discretion must be . . . guided 

by legal principles and policies appropriate to the particular matter at 

issue”]; People v. Sandoval (2007) 41 Cal.4th 825, 847 [a trial court’s 

discretion “must be exercised in a manner . . . that is consistent with the 

letter and spirit of the law”]; People v. Superior Court (Frezier) (2020) 54 

Cal.App.5th 652, 659 [legal issues in sentencing are reviewed de novo].)

II.

The Dual Use Prohibition Applies to Mandatory Full-term Consecutive 

Sentencing Under Section 667.6(d)

The parties agree courts are prohibited from relying on the same fact to 

impose both an upper term and a discretionary full, consecutive term under 

section 667.6(c). We agree with them; this is a settled point of law. (Advisory 

Com. com., 23 pt. 2 West’s Ann. Codes, Court Rules (2017 ed.), foll. rule 

4.426, p. 187; People v. Price (1984) 151 Cal.App.3d 803, 816 & fn. 8 (Price); 

People v. Reeder (1984) 152 Cal.App.3d 900, 920 (Reeder).) They disagree, 

however, whether the same prohibition applies when the consecutive 

sentence is mandatory under section 667.6(d). The parties do not cite, and we 

have not found, a case that squarely addresses the dual use issue presented 

here. But for the reasons that follow, we can find no principled basis for 

concluding that courts are not similarly constrained when the consecutive 

sentence is mandatorily imposed under section 667.6(d).

Neither section 667.6 nor section 1170 expressly forbid courts from 

relying on the same fact to impose a consecutive sentence and an upper term. 
12

However, the rules governing sentencing and associated Advisory Committee 

comments do speak to this form of dual use of a single aggravating factor. 

The Advisory Committee comment to rule 4.420 (“Selection of term of 

imprisonment for offense”) states, “[J]udges should avoid the use of reasons 

that may constitute an impermissible dual use of facts. . . . The court should 

not use the same reason to impose a consecutive sentence as to impose an 

upper term of imprisonment.” (Advisory Com. com., 23 pt. 2 West’s Ann. 

Codes, Court Rules (2024 Cumulative Supp. Pamp.) foll. rule 4.420, p. 43, 

italics added.) And rule 4.425 (“Factors affecting concurrent or 

consecutive sentences”), states in relevant part that “[a]ny circumstances 

in aggravation or mitigation . . . may be considered in deciding whether to 

impose consecutive rather than concurrent sentences, except: [¶] . . . [a] fact 

used to impose the upper term[.]” (Rule 4.425(b)(1), italics added.) 

This form of dual use is also addressed in rule 4.426, which specifically 

governs consecutive sentencing under section 667.6.4 The Advisory 

4 Rule 4.426 provides, in relevant part: “(a) Multiple violent sex 

crimes. [¶] When a defendant has been convicted of multiple violent sex 

offenses as defined in section 667.6, the sentencing judge must determine 

whether the crimes involved separate victims or the same victim on separate 

occasions. [¶] (1) Different victims [¶] If the crimes were committed against 

different victims, a full, separate, and consecutive term must be imposed for a 

violent sex crime as to each victim, under section 667.6(d). [¶] . . . [¶] 

(b) Same victim, same occasion; other crimes [¶] If the defendant has 

been convicted of multiple crimes, including at least one violent sex crime, as 

defined in section 667.6, or if there have been multiple violent sex crimes 

against a single victim on the same occasion and the sentencing court has 

decided to impose consecutive sentences, the sentencing judge must then 

determine whether to impose a full, separate, and consecutive sentence under 

section 667.6(c) for the violent sex crime or crimes instead of including the 

violent sex crimes in the computation of the principal and subordinate terms 

under section 1170.1(a).” (Rule 4.426(a)(1) & (b).)
13

Committee comment to rule 4.426 states, “The court may not use the same 

fact to impose a sentence under section 667.6(c) that was used to impose an 

upper term. (See rule 4.425(b).)” (Advisory Com. com., 23 pt. 2 West’s Ann. 

Codes, Court Rules (2017 ed.) foll. rule 4.426, p. 187.) However, the comment 

does not similarly caution against use of the same fact to impose an upper 

term and a mandatory consecutive sentence under section 667.6(d). 

Dorado interprets the Legislature’s silence as evidence it did not intend 

for the same fact to be punished twice through aggravation of a term and 

imposition of a full-term, consecutive sentence. Dorado contends the 

prohibition against such dual punishment “ties punishment to culpability 

and reduces arbitrariness in sentencing,” and applies regardless of whether 

the double punishment is discretionary or mandatory. He thus claims that 

such dual punishment is not permitted when consecutive sentencing is 

mandatory, as is the case under section 667.6(d). 

The People, on the other hand, point to the fact that neither section 

667.6(d) nor the sentencing rules expressly prohibit courts from relying on 

the same fact to impose an upper term and a mandatory consecutive 

sentence. In their view, this silence is evidence the Legislature did not 

intend for the dual use prohibition to apply to this combination of decisions. 

They characterize the issue as one of legislative intent. According to the 

People, to conclude this form of dual use is improper would require us to 

“graft the rule against using the same fact to support a trial court’s 

imposition of a consecutive and upper term onto section [667.6(d)].” In short, 

the People treat the Legislature’s silence as an indication it did not intend for 

the prohibition to apply to mandatory consecutive sentencing under section 

667.6(d). We reach the opposite conclusion. 
14

Where, as here, “the terms of a statute provide no definitive answer, 

then [we] may resort to extrinsic sources, including the ostensible objects to 

be achieved and the legislative history.” (People v. Coronado (1995) 12 

Cal.4th 145, 151 (Coronado).) Further, “[a] statute must be construed ‘in the 

context of the entire statutory system of which it is a part, in order to achieve 

harmony among the parts.’ ” (People v. Woodhead (1987) 43 Cal.3d 1002, 

1009.) 

Section 667.6 was enacted in 1979 and became effective on January 1, 

1980. (Stats. 1979, ch. 944, § 10.) This was more than two years after the 

DSL was enacted and took effect on July 1, 1977. (Stats. 1976, ch. 1139, 

p. 5140, § 273, amended by Stats. 1977, ch. 165, p. 647, § 15, eff. June 29, 

1977, operative July 1, 1977.) In enacting the DSL, the Legislature directed 

the Judicial Council to adopt rules promoting uniformity in sentencing, 

including rules providing criteria for the decision to “[i]mpose the lower or 

upper prison term” and “[i]mpose concurrent or consecutive sentences.” 

(§ 1170.3, subd. (a)(2), (4).) On July 1, 1977, pursuant to section 1170.3 and 

article VI, section 6 of the California Constitution, the Judicial Council 

adopted the “Sentencing Rules for the Superior Courts” (sentencing rules) 

which were embodied in former rules 401 through 453 of the California Rules 

of Court. (See People v. Wright (1982) 30 Cal.3d 705, 709–710 [discussing 

this history].) 

One of the original sentencing rules was former rule 441 (“Dual Use of 

Facts; Prohibited Use of Facts”). Former rule 441(c) provided, “ ‘A fact 

used to enhance the defendant’s prison sentence may not be used to impose 

the upper term.’ ” (Price, supra, 151 Cal.App.3d at p. 812.) The Advisory 

Committee comment to former rule 441 provided that this prohibition 

extended to the use of a fact to impose a consecutive sentence and an upper 
15

term, on the theory that a consecutive sentence was a form of enhancement. 

(See Price, at p. 815 [observing that the Advisory Committee comment to 

former rule 441 stated, “ ‘the additional term resulting from ordering 

sentences to be served consecutively is an “enhancement” ’ ” ].) 

In Price, supra, 151 Cal.App.3d 803 and Reeder, supra, 152 Cal.App.3d

900, the Courts of Appeal held that it was error to rely on the same fact to

impose an upper term and a discretionary consecutive sentence under section

667.6(c). Both courts reached this conclusion by relying on former rule 441(c)

and the Advisory Committee comment to former rule 441. (Price, at pp. 815–

816 & fn. 8 [holding “the rule applies to all enhancements and hence to all 

consecutive sentences”]; Reeder, at pp. 919–920 [holding former rule 441(c)

“applies to all enhancements, and hence to all consecutive sentences, without 

regard to the statutory source of those enhancements”].) 

Important here, both the Price and Reeder courts interpreted the 1979

Legislature’s failure to explicitly exempt section 667.6 from the ambit of

former rule 441(c) as evidence the Legislature did not intend for discretionary

consecutive sentencing under section 667.6(c) to fall outside the dual use

prohibition. The Price court noted: “At the time that the 1979 Legislature

acted, Rule 441(c) was a part of the sentencing laws. . . . It must be assumed

that the Legislature was aware of existing related laws and intended to

maintain a consistent body of rules. . . . While it is unmistakable that the 

Legislature intended to increase the severity of punishment for certain 

violent sex crimes by the enactments and amendments contained in the 

legislation which created section 667.6 and related provisions, it does not 

appear, either by express declaration or by necessary implication, that the 

established prohibition against dual use of facts was meant to be abandoned 

as to such crimes.” (Price, supra, 151 Cal.App.3d at p. 816, fn. 8, internal 
16

citations omitted.) Similarly, the Reeder court observed that former rule 

441(c) was already in existence when section 667.6 was added to the Penal 

Code, yet section 667.6 “does not expressly repeal rule 441(c) since it does not

even allude to the dual use of facts prohibition,” and repeals by implication

are not favored. (Reeder, supra, 152 Cal.App.3d at p. 920.) 

Thus, the Price and Reeder courts interpreted the Legislature’s silence 

as evidence discretionary consecutive sentencing under section 667.6(c) was 

subject to the existing prohibition against use of the same fact to impose an 

upper term and a consecutive sentence. We find their reasoning persuasive. 

And their reasoning applies equally to subdivision (d) of section 667.6, which 

was enacted at the same time as subdivision (c).5 Subdivision (d), too, is 

devoid of expressions of legislative intent that the “established prohibition 

against dual use of facts was meant to be abandoned” as to the crimes within 

its ambit (see Price, supra, 151 Cal.App.3d at p. 816, fn. 8), which supports

the conclusion the Legislature did not intend for mandatory consecutive 

sentencing under subdivision (d) to be any more exempt from the dual use 

prohibition than discretionary consecutive sentencing under subdivision (c). 

And although former rule 441 was repealed on January 1, 1991, the 

reasoning of Price and Reeder remains a valid interpretation of the 

Legislature’s intent when it enacted section 667.6. Further, the holdings of 

5 Section 667.6 has been amended since it was originally enacted, but the 

amendments have not materially altered the statutory language we consider 

here. (Compare § 667.6, former subd. (d), as added by Stats. 1979, ch. 944, 

§ 10 [“A full, separate, and consecutive term shall be served for each violation 

of [specified offenses] if such crimes involve separate victims or involve the 

same victim on separate occasions.”]; § 667.6, subd. (d)(1), as amended by 

Stats. 2021, ch. 626, § 30 [“A full, separate, and consecutive term shall be 

imposed for each violation of [specified offenses] if the crimes involve 

separate victims or involve the same victim on separate occasions.”].) 
17

Price and Reeder are still sound. The prohibition that was once embodied in 

former rule 441(c) (as interpreted by the Advisory Committee and the Courts 

of Appeal) has now been replaced by rule 4.425(b)(1). And our high court has 

cited Price and Reeder with approval even after the 1991 repeal of former rule 

441. (See Scott, supra, 9 Cal.4th at p. 350, fn. 12 [citing Reeder, supra, 152

Cal.App.3d at p. 919, for the proposition “it is clear that the court cannot rely

on the same fact to impose both the upper term and a consecutive sentence”];

People v. Chism (2014) 58 Cal.4th 1266, 1336 [parenthetically quoting Price, 

supra, 151 Cal.App.3d at p. 812 & fn. 5 for the propositions that “ ‘a trial 

court may use the same fact(s) to impose more than one aggravated term 

provided the fact is reasonably related to the particular count . . .’ and ‘the 

fact has not already been or will not be used to impose either an enhancement 

or a consecutive term’ ” (italics added)].)

Nor do we rely exclusively on Price and Reeder. Additional 

considerations further support our conclusion about the Legislature’s intent. 

For one, to hold that dual use of sentencing factors is prohibited when a 

consecutive sentence is imposed under subdivision (c) but not subdivision (d) 

of section 667.6 would lead to anomalous results. Both subdivisions apply to 

the same list of sex offenses (§ 667.6, subd. (e)), and both authorize the same 

consequence for those offenses: a full-term consecutive sentence. When an 

upper term is added to a discretionary consecutive sentence imposed under 

subdivision (c), because dual use of factors is prohibited, the upper term 

decision requires a separate aggravator to justify the increase. (See Advisory 

Com. com., 23 pt. 2 West’s Ann. Codes, Court Rules (2017 ed.), foll. rule 

4.426, p. 187 [“If the court selects the upper term, imposes consecutive 

sentences, and uses section 667.6(c), the record must reflect three sentencing 

choices with three separate statements of reasons, but the same reason may 
18

be used for sentencing under section 667.6(c) and to impose consecutive 

sentences.”].) If dual use of factors were permitted when a mandatory 

consecutive sentence is imposed under subdivision (d), however, then no 

additional aggravator would be required to justify the imposition of the upper 

term. This scenario fails to ensure that the more culpable offender receives 

the greater punishment. (Cf. Coronado, supra, 12 Cal.4th at p. 153 [elevating 

a defendant’s drunk driving charge to a felony under Veh. Code, former 

§ 23175 and imposing a prior prison term enhancement under Pen. Code, 

§ 667.5, subd. (b), based on the same prior felony conviction that resulted in a 

prior prison term “leads to the rational result that a more culpable habitual 

drunk driver receives greater punishment”].) 

In addition, to hold that the Legislature did not intend for the dual use 

prohibition to encompass mandatory consecutive sentencing under section 

667.6(d) would also mean that in cases where a full-term consecutive 

sentence is required because the defendant was found by a jury to have 

committed multiple sex offenses involving separate victims, the trial court 

would have automatic, unfettered discretion to impose either middle term or 

upper term sentences for those same offenses, based on the same findings. 

This, in turn, would make the decision to increase the defendant’s sentence 

either once (by imposing the required consecutive sentence) or twice (by 

imposing the required consecutive sentence as well as an upper term 

sentence) arbitrary. Such arbitrary sentencing decisions are contrary to the 

goal of uniformity in sentencing the Legislature intended to achieve when it 

enacted the DSL. (See § 1170, subd. (a)(1) [“[T]he purpose of sentencing is 

public safety achieved through punishment . . . . This purpose is best served 

by terms that are proportionate to the seriousness of the offense with 

provision for uniformity in the sentences of people incarcerated for
19

committing the same offense under similar circumstances.”]; People v. 

Hinojosa (1980) 103 Cal.App.3d 57, 64–65 [“one of the expressed purposes of 

the determinate sentencing law is to achieve uniformity in sentencing”].) 

For all of these reasons, we disagree with the People that the 

Legislature’s silence on dual use is evidence it did not intend for mandatory 

consecutive sentencing under section 667.6(d) to be subject to the prohibition 

against relying on a single factor to impose an upper term and a consecutive 

sentence. In reaching this conclusion, we recognize that former rule 441—the 

dual use rule that existed when section 667.6 was enacted—has since been 

repealed, and that judges are required to follow the operative version of the 

sentencing rules. However, we are not persuaded the current rules permit 

the dual use that is at issue here. 

There are currently two sentencing rules that address dual use of a 

single sentencing factor: rule 4.420, which deals with imposition of the base 

term, and rule 4.425, which addresses the criteria for consecutive sentencing. 

(Rules 4.420(g), (h) and 4.425(b)(1)–(3).) Although each rule prohibits at least 

one form of dual use, only rule 4.425(b)(1) explicitly prohibits courts from 

imposing a consecutive sentence on the basis of a fact used to select the upper 

term. (See rule 4.425(b)(1) [“Any circumstances in aggravation or mitigation 

. . . may be considered in deciding whether to impose consecutive rather than 

concurrent sentences, except . . . [a] fact used to impose the upper term.”].) 

Because this provision focuses on the discretionary consecutive sentencing 

decision, it could be read narrowly so as to constrain only that decision, which 

would mean it has no application when the consecutive sentence is 

mandatory. 

But that is not how the California Supreme Court has interpreted it. 

In Calhoun, supra, 40 Cal.4th 398, our high court, relying on rule 4.425(b)(1), 
20

observed that sentencing courts may not consider the fact of multiple victims 

as a basis for imposing both the upper term and a consecutive sentence. 

(Calhoun, at p. 408.) The defendant in Calhoun had been convicted by a jury 

of two counts of vehicular manslaughter and two counts of reckless driving 

causing bodily injury; each of the four counts involved a different victim. (Id.

at pp. 400–401, 405.) The trial court sentenced the defendant to upper terms 

on both vehicular manslaughter counts based on the fact that there were 

multiple victims. (Id. at p. 405.) The defendant claimed the court’s reliance 

on the multiple victims factor was improper, in part because each count of 

conviction named only one victim such that he was deprived of his right to a 

jury trial on the aggravating multiple victim factor. Our high court rejected 

this Sixth Amendment argument, reasoning that in convicting the defendant 

of multiple counts against four separate victims, “the jury necessarily found 

there were multiple victims.” (Calhoun, at pp. 406, 408.) The defendant also 

challenged the upper terms on the ground the trial court’s authority to 

elevate his sentence based on the multiple victims factor was limited to 

imposing consecutive sentences. Our high court also rejected this claim, 

stating: “There is no persuasive reason why the trial court should not be 

allowed to consider the fact of multiple victims as a basis for imposing either 

the upper term or a consecutive sentence, although it cannot do both. (Rule 

4.425(b)(1).)” (Id. at p. 408, italics added.)

The Supreme Court’s statement that a court can impose either an 

upper term or a consecutive sentence based on the fact of multiple victims, 

but “it cannot do both” (Calhoun, supra, 40 Cal.4th at p. 408), reflects the 

view that the dual use prohibition in rule 4.425(b)(1) applies equally to the 

upper term decision and the consecutive sentencing decision, and constrains 

both decisions. Under this reading of the rule, once the sentencing court has 
21

imposed an upper term based on the “fact of multiple victims,” it may not rely 

on that fact again to impose a consecutive sentence; and, conversely, once the 

court has imposed a consecutive sentence based on the “fact of multiple 

victims,” it may not rely on that fact again to impose an upper term. 

(Calhoun, at p. 408.) Although in Calhoun the consecutive sentencing 

decision was discretionary because it was governed by section 1170.1, we see 

no logical reason why the latter scenario should be limited to situations in 

which imposition of the consecutive sentence is discretionary. Whether the 

“fact of multiple victims” makes a consecutive sentence mandatory or 

discretionary, it has been used “as a basis for imposing . . . a consecutive 

sentence” such that a court errs and “do[es] both” (Calhoun, at p. 408, italics 

added) if it considers the same multiple victims fact again as a basis for 

imposing the upper term. 

The Advisory Committee’s comment to rule 4.420, which guides courts 

on the selection of a base term, further persuades us that the dual use 

prohibition described in rule 4.425(b)(1) limits the upper term decision as 

well as the consecutive sentencing decision. The comment states, “The court 

should not use the same reason to impose a consecutive sentence as to impose 

an upper term of imprisonment.” (Advisory Com. com., 23 pt. 2 West’s Ann. 

Codes, Court Rules (2024 Cumulative Supp. Pamp.), foll. rule 4.420, p. 43.) 

“An advisory committee comment is effectively the voice of the Judicial 

Council, providing further explanation as to the meaning of the language of a 

rule and guidance in its application.” (People v. Hall (2023) 97 Cal.App.5th 

1084, 1102–1103, disapproved on other grounds in Lynch, supra, 16 Cal.5th 

730.) If the prohibition against reliance on the same fact to impose an upper 

term and a consecutive sentence applied only to discretionary consecutive 

sentencing decisions, there would be no reason for the Advisory Committee to 
22

caution courts against this form of dual use within the rule governing 

selection of the upper term. 

Further, to the extent the People rely on the fact that the Advisory 

Committee comment to rule 4.426 cautions courts not to “use the same fact to 

impose a sentence under section 667.6(c) that was used to impose an upper 

term” but is silent on dual use in the context of section 667.6(d), we do not 

find the silence to be material. Rule 4.426 is narrow; it only addresses 

consecutive sentencing under section 667.6. Because the decision to impose a 

full, consecutive term under section 667.6(c) is discretionary, there is a need 

to address within rule 4.426 the proper exercise of that discretion, including 

by identifying the factors that are off limits when the court makes its 

discretionary decision. There is no comparable need for such guidance with 

respect to consecutive sentencing under section 667.6(d) since it is 

mandatory. 

Finally, we recognize that our conclusion is at odds with footnoted dicta 

in Reeder stating: “Since compulsory full term consecutive sentences are 

mandated for multiple offenses governed by subdivision (d) of section 667.6, 

the problem of dual use of facts both to aggravate and to enhance by a 

consecutive sentence never arises under that subdivision.” (Reeder, supra, 

152 Cal.App.3d at p. 919, fn. 8.) We respectfully disagree with this view. As 

we have explained, the problem of dual use of facts does not turn on the 

mandatory or discretionary nature of the punishment. Stated differently, it 

does not matter that one of the two uses was by the Legislature rather than 

the sentencing judge. That consecutive sentencing under section 667.6(d) is 

mandatory is not a sufficient basis for concluding that it does not trigger the 

prohibition against relying on the same fact to impose an upper term and a 

consecutive sentence. Further, unlike the Reeder court, we rely on rule 
23

4.425(b)(1), and we have the added benefit of our high court’s interpretation 

of this rule in Calhoun.

For all of these reasons, we conclude that once the trial court 

determined that full, consecutive terms were required for counts 3, 14, and 30 

because the crimes underlying those counts involved multiple victims, it 

erred when it relied on the same multiple victims fact to impose upper terms 

on those counts.6 

III.

The Error Was Prejudicial and Resentencing Will Be Limited

to the Record as It Stands

In order to determine whether the trial court’s error requires a remand 

for resentencing, we “ ‘ “must determine if ‘it is reasonably probable that a 

6 Dorado raises two other contentions, but they are meritless. First, 

Dorado contends the trial court erred and exceeded the scope of our 

remittitur in Dorado, supra, D078342. He asserts that we “directed the trial 

court to decide whether an upper term sentence is warranted based solely on 

the aggravating factor” of “ ‘the physical injuries to Jane 1, Jane 2, and 

Jane 4.’ ” The contention fails because our decision included no such 

directive. 

Second, Dorado asks us to address an argument from his first appeal 

that the trial court’s failure to sentence him in accordance with the 

requirements of Senate Bill 567 was not amenable to harmless error review 

because it resulted in an unauthorized sentence. We need not do so. For one 

thing, the point is now moot. Dorado made this argument in his first appeal 

in order to persuade us to reverse his original sentence. We did reverse his 

sentence, albeit after subjecting the court’s sentencing decisions to harmless 

error review. For another, the California Supreme Court has now decided 

this precise issue adversely to Dorado. (See Lynch, supra, 16 Cal.5th at 

p. 751 [rejecting the argument that the failure to submit aggravating facts to 

a jury “as now required by section 1170[, subd. ](b)(2) results in an 

‘unauthorized sentence’ that is not amenable to a prejudice analysis”].) We 

are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 455.) 
24

result more favorable to the appealing party would have been reached in the 

absence of the error.’ ” ’ ” (People v. Sperling (2017) 12 Cal.App.5th 1094, 

1104; see People v. Osband (1996) 13 Cal.4th 622, 728 [dual use error does 

not necessitate resentencing if “ ‘ “[i]t is not reasonably probable that a more 

favorable sentence would have been imposed in the absence of the error” ’ ”].) 

The People contend the error was harmless because the trial court 

could have imposed the upper term based on aggravating factors other than 

the multiple victims factor, such as the physical injuries to Jane 1 and 

Jane 2, or the “pattern of violent conduct indicating [Dorado] poses a danger 

to society.” We disagree that we can affirm the sentence on the basis of these 

alternative factors. 

Following the enactment of Senate Bill 567, a court may impose an 

upper term sentence “based on a single, properly proven aggravating 

circumstance [only] if, in the court’s discretion, that circumstance alone 

justifies a sentence exceeding the middle term.” (Lynch, supra, 16 Cal.5th at 

p. 764.) Here, the record fails to demonstrate that the trial court viewed any 

of the alternate factors identified by the People as sufficient to justify a 

sentence exceeding the middle term. On this record, we are compelled to 

conclude there is a reasonable probability Dorado would have received a 

lesser sentence were it not for the court’s error.

In Dorado’s first appeal, we remanded for resentencing and stated that 

on remand, “the procedures set forth in Lopez shall apply. (See [People v.

Lopez (2022)] 78 Cal.App.5th [459,] 468–469.)”7 (Dorado, supra, D078342.) 

The referenced portion of Lopez stated, in part, that “[o]n remand, the People 

7 People v. Lopez, supra, 78 Cal.App.5th 459 was disapproved on other 

grounds in Lynch, supra, 16 Cal.5th at page 769. 
25

may elect to proceed under the requirements of the newly amended version of 

section 1170, subdivision (b), which would permit the People to prove the 

existence of aggravating factors beyond a reasonable doubt to a jury, unless 

the defendant waives the right to a jury and agrees to have the factors 

decided by the court beyond a reasonable doubt; alternatively, the People 

may accept resentencing on the record as it stands.” (Lopez, at p. 468.) 

According to the People’s sentencing statement filed before the April 

2023 resentencing hearing, after Dorado’s case was remanded to the trial 

court, the People “alerted the court and counsel at status conferences ahead 

of the current resentencing date that it would not be seeking a jury trial on 

aggravating factors, which would essentially involve a retrial of the entire 

case, including victim testimony.” 

We directed the parties to submit supplemental briefs addressing 

whether, on remand, the People are now precluded from seeking a trial of 

aggravating factors and must accept resentencing on the record as it stands. 

In response, the People argued that on remand they should be given a new 

opportunity to elect a trial on aggravating factors, under the full resentencing 

rule or as a matter of collateral estoppel. Dorado argued that because the 

trial court’s error occurred at resentencing, to restore the status quo ante, we 

should remand for a resentencing hearing on the record as it stands. 

We agree with Dorado. When a matter is reversed on appeal, “the ends 

of justice require that the status quo ante be restored[.]” (In re Sutherland

(1972) 6 Cal.3d 666, 672; see People v. Harris (1991) 227 Cal.App.3d 1223, 

1227.) Here, the trial court’s error only affected the sentence imposed at the 

April 2023 resentencing hearing. The People made their election not to seek 

a trial of aggravating factors under the newly amended law well in advance 

of that resentencing hearing. Restoration of the status quo ante will be 
26

accomplished in this case by vacating Dorado’s sentence and remanding for a 

new resentencing hearing on the record as it stands. 

Contrary to the People’s arguments, neither the full resentencing rule 

nor principles of collateral estoppel entitle them to another bite at the apple. 

Under the full resentencing rule, “when part of a sentence is stricken on 

review, on remand for resentencing ‘a full resentencing as to all counts is 

appropriate, so the trial court can exercise its sentencing discretion in light of 

the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) It 

is the trial court that is given an opportunity to exercise its discretion anew, 

not the prosecution. Remanding Dorado’s case for a new, full resentencing 

hearing on the record as it stands is entirely consistent with the full 

resentencing rule. Nor are we relying on principles of collateral estoppel for 

our determination that the People will not have the opportunity to revisit 

their trial election on remand. Rather, we base our determination on the 

conclusion that restoration of the status quo ante requires a new 

resentencing hearing, but no more.
27

DISPOSITION

The sentence is vacated, and the case is remanded for a full 

resentencing hearing. The judgment is affirmed in all other respects.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.