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Filed 12/17/21 P. v. Flores CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MOISES FLORES,

Defendant and Appellant.

 A160578, A161643

 (Sonoma County

 Super. Ct. No. SCR7311481)

Defendant Moises Flores entered a no contest plea to one felony count 

of committing a lewd act on a child under age 14 (hereinafter, victim).1 The 

trial court sentenced defendant to the middle term of six years in prison and 

denied his invitation under Penal Code section 1170, subdivision (d)2 to recall 

the sentence. Before us is defendant’s consolidated appeal from the judgment

(A160578) and the trial court’s denial of his invitation to recall his sentence

(A161643). We affirm the judgment and dismiss defendant’s appeal from the 

recall denial as taken from a nonappealable order.

1 The victim was 12 years old.

2 Unless otherwise stated, all statutory citations herein are to the Penal 

Code.
2

FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 2019, a felony complaint was filed charging 

defendant with one count of committing a lewd act (kissing on the mouth) on 

a child under age 14 in violation of section 288, subdivision (a) and three 

counts of committing forcible lewd acts (touching the breasts, kissing the 

neck, and biting the neck) on a child under age 14 in violation of section 288, 

subdivision (b). These charges stemmed from the following course of events.

On September 7, 2019, the victim’s mother reported to police that 

defendant, the live-in boyfriend of the victim’s older sister, repeatedly made 

sexual advances toward the victim while she was staying at her father’s 

house over the previous month.

3

On September 11, 2019, the victim was interviewed at the Redwood 

Children’s Center. She described several recent incidents of abuse involving

defendant. The first incident occurred recently, about 1:00 a.m., when the 

victim was sitting on the couch watching television and the rest of the family 

was asleep. Defendant surprised her from behind and touched her in an 

abnormal way. Although the victim told defendant “ ‘stop’ ” and “ ‘no,’ ” he

sat on her and kissed her. Defendant bit her neck and gave her a hickey as

she tried to push him off. He also touched her “ ‘chest area’ ” over her bra 

with his hand and put his tongue in her mouth. Although the victim

continued to say “ ‘no,’ ” she could not move defendant because he was still 

sitting on her. When the incident was over, the victim went to her bedroom

and shut the door. Since the door had no lock, the victim placed items in 

front of it to barricade herself inside. The victim had a purple mark and bite 

marks on her neck.

3 Defendant lived at the victim’s father’s house.
3

Another time, about 12:30 a.m. during Labor Day weekend, defendant

petted the victim’s head, prompting her to slap his hand away and repeatedly

tell him to leave. He finally did.

The victim recalled a third incident when she was sitting on a chair. 

Defendant tried to sit on her, but she kneed him in the jaw as hard as she 

could and he left. The victim also recalled defendant complimenting her and 

taking photos of her on Snapchat. He denied it, but she saw flashes go off.

On September 11, 2019, the victim and a detective assigned to her case 

initiated a pretext communication to defendant via Snapchat. During their

conversation, defendant denied kissing her, giving her a hickey, or touching 

her breasts. Defendant claimed he had been “playing” and they “accidentally 

bumped heads,” and stated, “ ‘Oh, I don’t remember tbh [to be honest]. I was 

super drunk.’ ” When the victim told defendant what she remembered, he 

responded, “ ‘I’m sorry. I don’t want you to feel that way. It was all my 

fault.’ ” Defendant told the victim he would only kiss her again if she wanted 

him to, but he would ask first.

Later that day, defendant was arrested. During his police interview, 

defendant recalled an incident when he sat on the victim and, when he 

turned his head, his lips accidentally touched hers. Defendant denied giving 

her a hickey or touching her breasts. He also denied being drunk and could 

not explain why he told the victim otherwise. Later in the interview, 

defendant admitted drinking but claimed not to have been impaired. He 

denied any intention of kissing her again, even if she consented.

On March 5, 2020, defendant pleaded no contest to one count of 

committing a lewd act on a child under age 14, a serious and violent felony 

within the meaning of sections 1192.7, subdivision (c) and 667.5, 

subdivision (c). Defendant’s plea was an open plea with a maximum term set 
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at eight years in prison. Defendant also agreed the trial court could consider 

the three dismissed counts under section 288, subdivision (b) when 

determining his sentence.

A probation officer interviewed defendant in anticipation of sentencing. 

Defendant “declined to discuss the details of the offense but accepted 

responsibility for what the victim reported occurred.” Defendant was

remorseful, stating, “ ‘I’m ashamed of myself.’ ” He denied being sexually 

attracted to young girls and insisted he would not engage in such conduct 

again. Using a risk assessment instrument known as Static-99R, probation

assessed defendant’s risk level for being convicted of another sexual offense 

within five years if released on probation as “average . . . .” The probation 

department recommended that the court appoint a psychologist or 

psychiatrist to evaluate defendant pursuant to sections 288.1 and 1203.067, a 

prerequisite to placing him on probation.

4

The trial court granted probation’s request for appointment of an 

expert under section 288.1, and on July 7, 2020, Dr. Kevin T. Kelly, Ph.D., a 

licensed psychologist, examined defendant. In his report to the court, 

Dr. Kelly opined defendant was an “excellent candidate for group treatment 

of sexual offense” and was likely to successfully complete a probationary 

period and not to reoffend. Dr. Kelly based his opinions on several findings, 

including the fact that defendant admitted his offense, volunteered an 

apology, and showed a “favorable amount of insight and self-analysis . . . .”

4 Section 288.1 provides in relevant part: “Any person convicted of 

committing any lewd or lascivious act . . . [on] a child under the age of 14 

years shall not have his or her sentence suspended until the court obtains a 

report from a reputable psychiatrist, from a reputable psychologist who 

meets the standards set forth in Section 1027, as to the mental condition of 

that person.” (Accord, § 1203.067, subd. (a)(3).)
5

On July 16, 2020, the probation department offered a supplemental 

report in light of Dr. Kelly’s report, in which it recommended that defendant 

be placed on supervised probation for four years with conditions that would

include serving 12 months in jail and completing programs and services 

targeting his risk factors as directed by the probation officer and jail 

personnel.

The sentencing hearing was held on July 21, 2020. The court heard 

statements from the victim’s parents describing their daughter’s deep trauma 

from defendant’s actions. The prosecutor then asked the court to sentence 

defendant to prison, pointing out that Dr. Kelly’s report failed to account for

“the true severity of the crimes and the impact on the victim . . . .” The 

prosecutor noted the report failed to acknowledge “the forcible elements of 

what had occurred, which is in front of the Court for consideration, due to 

Harvey[

5

] waivers,” and defendant’s minimization of the severity of his 

actions. (Italics added.) Defense counsel asked the court to follow Dr. Kelly’s

recommendations and place defendant on probation and in a treatment 

program.

In ruling, the court found the factors in mitigation and aggravation 

were “balanced . . . .” The court then focused on defendant’s minimization of

the severity of his actions to both Dr. Kelly and the probation officer and his 

violation of a position of trust in the victim’s family, concluding: “You had a 

place in their home. And you were a trusted member, really sort of 

collaterally, of their family by extension. And to have their child have to feel 

like she had to continuously run, to avoid you, into her room and throw you 

out of her room, is just really unconscionable. I think it would have been a 

different instance if we were talking about one very isolated event. But this, 

5 People v. Harvey (1979) 25 Cal.3d 754.
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to the Court, looks like it was ongoing. It was ongoing for a substantial 

period of time. And the level of responsibility that has been taken, I think 

is—doesn’t rise to the level for what actually occurred.”

Based on these facts, the court denied probation and sentenced 

defendant to the midterm of six years. The court also imposed a lifetime 

registration requirement (§ 290). After imposing various fees and fines, the 

court reserved the issue of victim restitution and dismissed the remaining 

counts with a Harvey waiver on the prosecutor’s motion. Defendant filed a 

timely notice of appeal on July 22, 2020 (A160578).

On October 6, 2020, defendant filed an invitation to recall his sentence 

pursuant to section 1170, subdivision (d), which the prosecution opposed. On 

December 2, 2020, the court declined defendant’s invitation, prompting his 

second notice of appeal as to that order (A161643).

Case Nos. A161643 and A160578 were consolidated for purposes of this 

appeal on January 15, 2021.

DISCUSSION

Defendant contends the trial court abused its discretion by choosing a 

six-year term over probation and refusing to recall the sentence. He reasons 

that the court: (1) arbitrarily disregarded the recommendations of the courtappointed expert and probation department; (2) improperly relied on the 

victim’s age, an element of his crime, as a factor in its sentencing choice; and 

(3) imposed a “disproportionate” sentence contrary to section 1170. We begin 

with the governing law.

“Following a defendant’s conviction of a crime,the sentencing court

may choose among a variety of dispositional options. One option is to release

the offender on probation. ‘Probation is generally reserved for convicted

criminals whose conditional release into society poses minimal risk to public
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safety and promotes rehabilitation.’ [Citation.] A grant of probation is

‘qualitatively different from such traditional forms of punishment as fines or

imprisonment. Probation is neither “punishment” (see § 15) nor a criminal

“judgment”(see § 1445). Instead, courts deem probation an act of clemency

in lieu of punishment [citation], and its primary purpose is rehabilitative in

nature [citation].’ [Citation.] Accordingly, we have explained that a grant of

probation is an act of grace or clemency, and an offender has no right or

privilege to be granted such release. [Citation.] Stated differently,

“[p]robation is not a right, but a privilege.’ [Citation.]” (People v. Moran

(2016) 1 Cal.5th 398, 402 (Moran); see Cal. Rules of Court, rule 4.4146

[criteria affecting decision to grant or deny probation include facts relating to 

the crime and to the defendant].)

A trial court has broad discretion to choose among its dispositional 

options, and its choice will not be disturbed on appeal absent a manifest 

abuse of that discretion. (Moran, supra, 1 Cal.5th at p. 402; People v. 

Carbajal (1995) 10 Cal.4th 1114, 1120.) Stated otherwise, in reviewing the 

matter on appeal, a trial court is presumed to have acted to achieve 

legitimate sentencing objectives in the absence of a clear showing the 

sentencing decision was irrational or arbitrary. (People v. Superior Court

(Du) (1992) 5 Cal.App.4th 822, 831.)

I. The court did not arbitrarily reject Dr. Kelly and the probation 

department’s recommendation.

Defendant contends the court abused its discretion by failing to adopt 

the recommendation of Dr. Kelly and the probation officer to place him on 

probation with conditions that include sexual offender group treatment.

6 All citations to rules herein are to the California Rules of Court.
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Based on the record, we conclude the court had reasonable grounds to choose 

a six-year prison term over probation.

Defendant correctly notes that Dr. Kelly opined that he presented “a 

very low risk of recidivism” and had “a good prognosis for rehabilitation . . . .” 

The probation department endorsed Dr. Kelly’s opinions. However,the trial 

court found defendant minimized the nature of his conduct to both Dr. Kelly

and the probation department. The court also noted defendant had no 

acknowledgment of the severity of his abuse, which was “ongoing for a 

substantial period of time.” The record supports these findings.

For example, according to Dr. Kelly’s report, defendant “declined to 

discuss [the] details” of the charges while acknowledging,“ ‘I made a mistake. 

I touched her, my girlfriend’s sister. I pled no contest.’ ” Yet when Dr. Kelly

asked defendant whether he touched the victim more than once, defendant 

responded, “ ‘No, once.’ ” Dr. Kelly appears to have accepted defendant’s 

response at face value even though it is belied by the record, which reveals 

multiple acts of sexual abuse, several of which involved use of force. Most 

notably, the victim described defendant touching her breast and kissing her 

and, when she repeatedly told him “ ‘no,’ ” he pinned her down by sitting on 

her and holding her wrists. The victim “could not move Flores off her because 

he weighed too much.” Another time, the victim was forced to “knee[] him in 

the jaw as hard as she could” to escape his sexual advances. These forcible 

acts, omitted from Dr. Kelly’s report, were before the court during sentencing 

notwithstanding defendant’s no contest plea. (See People v. Barasa (2002) 

103 Cal.App.4th 287, 291, fn. 3 [Harvey waiver permits sentencing judge to 

consider facts underlying dismissed charges].)

On this undisputed record, no basis exists for disturbing the court’s 

decision to reject Dr. Kelly and the probation officer’s recommendation of 
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probation and to sentence defendant to the midterm of six years. (See People 

v. Superior Court (Du), supra, 5 Cal.App.4th at p. 831.)

II. The court did not improperly rely on the victim’s age during 

sentencing.

Defendant argues the trial court improperly relied on the victim’s age 

(12), an element of his crime (see § 288, subd. (a)), when choosing the six-year 

midterm over probation. (See People v. Wilson (1982) 135 Cal.App.3d 343, 

358 [it is “impermissible dual use of facts for a court to impose an upper term 

by using the same fact used to enhance the sentence”], disapproved on other 

grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) The factual 

record reflects otherwise.

At the sentencing hearing, the court found, “In aggravation, . . . 

Mr. Flores did hold a position of trust within the household. He was a family 

member for all purposes and he was trusted to be there. [¶] Additionally,the 

victim in this case is a child and has been greatly impacted and especially 

since it occurred in her own home. And that’s supposed to be our safe place 

always, is our home. And to have that sense of security destroyed is not 

something I’m sure that will easily be something that she can get over.”

As this excerpt reflects, the court, notwithstanding its brief reference to 

the victim’s youth, relied on two valid aggravating factors: the defendant’s 

exploitation of a position of trust (see rules 4.414(a)(9), 4.421(b)(1)) and the 

victim’s particular vulnerability in her own home late at night while her 

family slept (see rules 4.414(a)(3), 4.421(a)(3)).

7

 Defendant does not dispute 

the evidence supporting these findings. As such, there are no grounds for 

disturbing them. (See People v. Clark (1990) 50 Cal.3d 583, 638 [the evidence 

7 In the presentencing report, the probation officer found as an 

additional aggravating factor defendant’s holding the victim’s wrists to 

prevent her escape (rule 4.421(a)(11)).
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supported a finding of particular vulnerability where defendant “used his . . .

relationship with [the victim] and knowledge gained thereby to persuade her 

to admit him to her apartment”]; People v. Williams (1991) 228 Cal.App.3d 

146, 153 [even a single appropriate factor is sufficient to support an 

aggravated term].) As noted ante, “ ‘[p]robation is not a right, but a

privilege.’ [Citation.]” (Moran, supra, 1 Cal.5th at p. 402.)

III. The court imposed a proportionate sentence.

Defendant also challenges his sentence as disproportionate within the 

meaning of section 1170, subdivision (a)(1). This provision states: “The 

Legislature finds and declares that the purpose of sentencing is public safety 

achieved through punishment, rehabilitation, and restorative justice. When 

a sentence includes incarceration, this purpose is best served by terms that 

are proportionate to the seriousness of the offense with provision for 

uniformity in the sentences of offenders committing the same offense under 

similar circumstances.” (§ 1170, subd. (a)(1).)

For the same reasons we rejected his previous arguments, we reject 

this one. Put simply, defendant’s premise—towit, that there are no 

aggravating factors in this case—is mistaken. The record demonstrates that

not only did defendant minimize his actions to several individuals charged 

with reviewing his case but also that his actions were repeated, ongoing, and 

enabled by his position of trust in the victim’s home. These factors, without 

more, support the court’s imposition of the middle term. (See § 1170, subd. 

(a)(3) [“In any case in which the sentence prescribed by statute for a person 

convicted of a public offense is a term of imprisonment in the state 

prison . . . , the court shall sentence the defendant to one of the terms of 

imprisonment specified unless the convicted person is given any other 

disposition provided by law, including a fine, jail, probation”].) As stated
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already, “[w]hen a judgment of imprisonment is to be imposed and the 

statute specifies three possible terms, the choice of the appropriate term shall 

rest within the sound discretion of the court.” (§ 1170, subd. (b).)

IV. Defendant lacks standing to challenge the court’s 

December 2, 2020 order.

Last, defendant challenges the court’s denial of his “invitation” under 

section 1170, subdivision (d)8 to recall his sentence. We agree with the 

People that defendant lacks standing to bring this challenge.

Under section 1237,

9 a defendant may appeal (1) a “final judgment of 

conviction” or (2) an order made after judgment which affects the substantial 

rights of the party. The December 2, 2020 order declining defendant’s recall 

invitation is neither.

8 Section 1170, subdivision (d)(1) provides in relevant part: “When a 

defendant subject to this section or subdivision (b) of Section 1168 has been 

sentenced to be imprisoned in the state prison . . . and has been committed to 

the custody of the secretary . . . , the court may, within 120 days of the date of 

commitment on its own motion, or at any time upon the recommendation of 

the secretary or the Board of Parole Hearings in the case of state prison 

inmates . . . , recall the sentence and commitment previously ordered and 

resentence the defendant in the same manner as if they had not previously 

been sentenced, provided the new sentence, if any, is no greater than the 

initial sentence.”

9 Section 1237 provides: “An appeal may be taken by the defendant

from both of the following:

“(a) Except as provided in Sections 1237.1, 1237.2, and 1237.5, from a 

final judgment of conviction. A sentence, an order granting probation, or the 

commitment of a defendant for insanity, the indeterminate commitment of a 

defendant as a mentally disordered sex offender, or the commitment of a 

defendant for controlled substance addiction shall be deemed to be a final

judgment within the meaning of this section. Upon appeal from a final 

judgment the court may review any order denying a motion for a new trial.

“(b) From any order made after judgment, affecting the substantial 

rights of the party.”
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First, the “final judgment” in this case, by which defendant was 

sentenced to six years, was entered on July 21, 2020, and is the subject of 

case No. A160578. Further, the trial court’s rejection of his invitation to 

recall this sentence is not “[an] order made after judgment which affects the 

substantial rights of the party” within the meaning of section 1237. (People 

v. Pritchett (1993) 20 Cal.App.4th 190, 193–194.) As Pritchett explains: 

“Section 1170, subdivision (d) does not confer standing on a defendant to

initiate a motion to recall a sentence. Instead, that section permits a court to

recall a sentence ‘on its own motion.’ (§ 1170, subd. (d), italics added;

[citations].) Consequently, the courts have uniformly held that an order

denying a defendant’s request to resentence pursuant to section 1170,

subdivision (d) is not appealable as an order affecting the substantial rights

of the party. This is because the defendant has no right to request such an

order in the first instance; consequently, his ‘substantial rights’ cannot be

affected by an order denying that which he had no right to request.

[Citations.]” (Pritchett, supra, at pp. 193–194.) Accordingly, defendant’s 

appeal of the December 2, 2020 order, case No. A161643, must be dismissed.

DISPOSITION

The judgment is affirmed in case No. A160578. Case No. A161643 is 

dismissed.
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_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Needham, J.

A160578, A161643/People v. Moises Flores