Filed 6/28/22 P. v. Gomez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE PEREZ GOMEZ,

Defendant and Appellant.

F081222

(Super. Ct. No. BF171195A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John R. 

Brownlee, Judge.

Jeffrey S. Kross, 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, Julie A. Hokans and Clara M. 

Levers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Franson, J. and Peña, J.
2.

Appointed counsel for defendant Jose Perez Gomez asked this court to review the 

record to determine whether there are any arguable issues on appeal. (People v. Wende

(1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief 

within 30 days of the date of filing of the opening brief. Defendant did not respond. 

After requesting supplemental briefing on the applicability and effect of Senate Bill 

No. 567 (2021–2022 Reg. Sess.) (Senate Bill 567) to this case, we conclude the failure to 

submit aggravating circumstances to the jury was not harmless error. We vacate 

defendant’s sentence and remand for resentencing consistent with Senate Bill 567.

BACKGROUND

Defendant, who was 58 years old when he testified, had 13 biological children—

ranging from three to 42 years old—with eight different women. Four of the children in 

his family, not all his biological children, testified that he molested them. One of them, 

Jane Doe, was his biological daughter. When she was eight years old, she moved to 

California with her mother and two half-siblings and began living with defendant. Doe 

had cerebral palsy and required help with bathing and dressing until she was 11 years old. 

From the time Doe was eight years old until she was 12 years old, defendant touched her 

breasts, vagina, and buttocks, and threatened to kill her or her family if she told anyone. 

He touched her in different rooms of their various residences, including in the bathroom 

when he was helping her shower and dress, which he continued to do even after Doe was 

able to shower and dress herself. When Doe told her grandmother about the touchings, 

her grandmother called the police and defendant was apprehended.

During an interview with a detective, defendant repeatedly denied ever touching 

the children inappropriately, then eventually admitted that he caught Doe masturbating 

with her pants down and told her she was doing it wrong. She asked him to show her 

how to do it, so he touched her to demonstrate.

At trial, defendant testified on his own behalf. He said he loved all his children, 

whether biological or not. He denied touching any of them for sexual gratification. He 
3.

said Doe needed help due to her cerebral palsy, and she had low self-esteem because of 

her handicap. She bonded with him, trusted him, and wanted him to be involved in her 

life. They loved each other and he helped her a lot. He explained that Doe was highly 

sexualized because of the sexual abuse she had experienced before she moved to 

California. When he caught her masturbating in the living room, he told her it was 

inappropriate. She asked him to do it for her and show her how to do it. At first, he 

refused, but then he touched her over her clothes for a moment and removed his hand 

quickly. Afterward, he knew it was inappropriate, even though it was only for 

“ ‘educational purposes.’ ”

On April 16, 2018, the Kern County District Attorney charged defendant with 

15 counts of sexual offenses against the four children. Counts 6, 7, and 8 involved Doe 

as the victim.

On December 23, 2019, a jury convicted defendant of only one count—of 

committing a lewd and lascivious act on Doe, a child under 14 years of age (Pen. Code,1

§ 288, subd. (a); count 7) by touching her vagina. The trial court declared a mistrial on 

the remaining 14 counts.2

At the sentencing hearing on May 21, 2020, the trial court found no mitigating 

circumstances and four aggravating circumstances. The court sentenced defendant to the 

upper term of eight years on count 7, imposed various fines and fees, and awarded 

custody credits.

The same day, defendant filed a notice of appeal.

On June 5, 2020, rather than facing retrial on the remaining counts, defendant pled 

no contest to three more counts of section 288, subdivision (a) violations—counts 4, 8, 

1 All further statutory references are to the Penal Code.

2 On counts 1, 2, 3, 5, 6, 8, and 9, the jury voted 10 to two for guilty. On counts 4, 

12, 14, and 15, the jury voted nine to three for guilty. On counts 11 and 13, the jury 

voted seven to five for guilty.
4.

and 11—in return for a stipulated 12-year prison sentence, to be served consecutively to 

the eight-year term on count 7.

Subsequently, on July 23, 2020, the parties recognized that the terms on counts 4, 

8, and 11 would not amount to the agreed-upon 12 years, so defendant pled no contest to 

three more counts of section 288, subdivision (a) violations—counts 5, 6, and 12.

The same day, the trial court sentenced defendant to consecutive two-year terms 

(one-third the midterm of six years) on counts 4, 5, 6, 8, 11, and 12, adding up to 

12 years, to be served consecutively to the eight-year term on count 7, resulting in a total 

sentence of 20 years in prison. The court again imposed various fines and fees, and 

awarded custody credits.

On January 12, 2021, the trial court corrected custody credits and issued an 

amended abstract of judgment.

Defendant did not file a notice of appeal following the convictions on counts 4, 5, 

6, 8, 11, and 12.

DISCUSSION

We requested supplemental briefing on the application of Senate Bill 567 and 

section 1170, subdivision (b) to this case. The parties agree, as do we, that Senate 

Bill 567 applies retroactively to this case (see In re Estrada (1965) 63 Cal.2d 740) and 

the facts underlying the aggravating circumstances relied upon by the trial court were not 

proved as required by section 1170, subdivision (b), but the parties disagree as to whether 

remand for resentencing is required. The People argue that the sentence need not be 

vacated and the matter remanded because “a jury would have found one of 

four aggravating factors relied on by the trial court to be true beyond a reasonable doubt.” 

For the proposition that error is harmless if a reviewing court concludes beyond a 

reasonable doubt that the jury would have found one aggravating circumstance true 

beyond a reasonable doubt, the People rely upon People v. Sandoval (2007) 41 Cal.4th 

825 (Sandoval) as extended by People v. Flores (2022) 75 Cal.App.5th 495 (Flores). As 
5.

we will explain, Sandoval does not control in this situation. Instead, in order for any 

error to be harmless, we must conclude: (1)(a) beyond a reasonable doubt that at least 

one aggravating circumstance would have been proved to the jury beyond a reasonable 

doubt and (1)(b) there is no reasonable probability that the jury would not have found the 

remaining aggravating circumstances true beyond a reasonable doubt. If we so conclude, 

the error was harmless. If we conclude beyond a reasonable doubt that at least one 

circumstance was provable,

3 we must ask (2) whether there is a reasonable probability 

that the trial court would have imposed a lesser sentence based on the aggravating 

circumstances found true. If so, we vacate the sentence and remand for resentencing. If 

not, the error was harmless.

In this case, we conclude that the aggravating circumstances were not found true 

consistent with section 1170, subdivision (b) and the error was not harmless.4 We will 

therefore vacate the sentence and remand for resentencing consistent with section 1170, 

subdivision (b).

A. Additional Background

At sentencing, the trial court reviewed the probation report, then stated the 

following:

“All right. Circumstances in mitigation are none.

“Circumstances in aggravation are the defendant took advantage of a 

position of trust to commit the offense in that he was the victim’s father.

3

If we conclude that no factor was provable beyond a reasonable doubt, the 

sentence violates the Sixth Amendment pursuant to Cunningham v. California (2007) 549 

U.S. 270 (Cunningham) and Sandoval and must be vacated and the defendant 

resentenced.

4 Throughout our discussion, we refer to section 1170, subdivision (b) 

“error.” However, we note that at the time the trial court sentenced defendant, it 

correctly applied the then-existing law. Accordingly, while we refer to section 1170, 

subdivision (b) “error,” we are mindful that the trial court complied with the applicable 

law at the time of sentencing.
6.

“Defendant’s prior convictions as an adult are numerous.

“Defendant’s prior performance on misdemeanor probation was 

unsatisfactory, in that he violated or reoffended.

“And the victim was particularly vulnerable, in that she has a 

physical disability.

“Defendant does qualify for punishment in the California 

Department of Corrections and Rehabilitation, based on the current offense. 

There are no statutory provisions that would limit or prohibit a grant of 

felony probation to the defendant in this case.

“However, the defendant shall not be granted probation until a 

psychological evaluation is completed, pursuant to [section] 288.1 ....

“As to probation suitability, a child with a physical disability was 

sexually molested at the hands of her caretaker. That was the child’s very 

own father. The child could not protect herself and look toward her father 

to keep her safe and protected. It’s unknown the [l]asting effects this 

violation will have on the victim, both mentally and emotionally.

“Although the defendant is legally eligible for probation, he is 

considered an unsuitable candidate for a grant of felony probation and the 

underlying offense warrants a prison sentence.

“After review of aggravating factors and none in mitigation, the 

upper term is justified.

“Therefore, the defendant will be sentenced as follows: As to 

[c]ount 7, a violation of ... [s]ection 288[, subdivision] (a), probation will 

be denied and the defendant will be sent to the Department of Corrections 

for the upper term of eight years.”

B. Analysis

At the time defendant was sentenced, former subdivision (b) of section 1170

largely left it to a sentencing court’s “sound discretion” to select the appropriate term 

within a sentencing triad that “best serves the interests of justice.” (Former § 1170, 

subd. (b).) While defendant’s appeal was pending, the Legislature enacted Senate 

Bill 567, which amended section 1170, subdivision (b), making the middle term the 

presumptive term and limiting the situations in which an upper term can be imposed. 
7.

(Stats. 2021, ch. 731, § 1.3.) Effective January 1, 2022, a court must “order imposition of 

a sentence not to exceed the middle term,” except under narrow circumstances. (§ 1170, 

subd. (b)(1).) An upper term may be imposed only when there are aggravating 

circumstances that justify imposition of the upper 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.” (§ 1170, 

subd. (b)(2).) As an exception to the general rule, the trial court is permitted to rely upon 

a certified record of conviction to determine prior criminality for purposes of sentencing 

without submitting the prior conviction to a jury. (§ 1170, subd. (b)(3).)

As a threshold matter, as the parties agree, as do we, Senate Bill 567 is retroactive 

to cases not yet final on appeal pursuant to In re Estrada, supra, 63 Cal.2d 740 (see 

People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039) and defendant’s sentence is 

not yet final on appeal.

In this case, the trial court articulated four circumstances in aggravation: 

defendant took advantage of a position of trust, defendant suffered numerous prior 

convictions, defendant’s “performance on misdemeanor probation was unsatisfactory, in 

that he violated or reoffended[,]” and “the victim was particularly vulnerable, in that she 

ha[d] a physical disability.” None of the facts underlying those circumstances was found 

true by the jury beyond a reasonable doubt. Nor does the record reflect that the trial court 

found defendant’s prior convictions true based on certified records of convictions. 

Nevertheless, the upper term was imposed on count 7. The sentence imposed is therefore 

not in compliance with section 1170, subdivision (b)(2), as amended by Senate Bill 567. 

Therefore, unless imposition of the upper term on count 7 was harmless, the sentence 

must be vacated and the matter must be remanded to the trial court for resentencing in 

compliance with section 1170, subdivision (b).

To explain our disagreement with Flores’s extension of Sandoval, we consider the 

origin of the harmless error standard it applied. In Cunningham, supra, 549 U.S. 270, the 
8.

Supreme Court held that California’s determinate sentencing law (as it existed from 1977 

to 2007) violated the Sixth Amendment right to a jury trial because it permitted a trial 

judge to determine facts (other than a prior conviction) that would allow imposition of a 

sentence in excess of the statutory maximum.5 (Cunningham, at pp. 275–276.) As 

Cunningham explained, the Supreme Court had long held that any fact that permitted 

imposition of a sentence beyond the statutory maximum had to be proved to a jury 

beyond a reasonable doubt. (Id. at p. 281.) Under the California determinate sentencing 

law, a statutory presumption existed that “ ‘[t]he middle term [would] be selected unless 

imposition of the upper or lower term [was] justified by circumstances in aggravation or 

mitigation.’ ” (Id. at p. 278.) Under the then-existing statutory scheme, those 

circumstances in aggravation or mitigation—and the underlying facts related to those 

circumstances—were to be determined by the trial court, not the jury. (Ibid.) The 

Supreme Court therefore determined that the imposition of an upper term without having 

the facts underlying the aggravating circumstances proved to a jury beyond a reasonable 

doubt violated the Sixth Amendment. (Id. at p. 293.)

In Sandoval, our Supreme Court considered whether an upper-term sentence 

imposed pursuant to the pre-Cunningham determinate sentencing law—i.e., imposed 

based on judicial findings of fact on circumstances in aggravation—was harmless error 

under the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 837.) It explained that 

the trial court had relied upon six aggravating circumstances, none of which had been 

proved to a jury, admitted by the defendant, or based on the fact of a prior conviction. 

(Id. at pp. 837–838.) The upper-term sentence therefore violated the defendant’s 

Sixth Amendment rights under Cunningham. The Sandoval court then considered 

whether the violation was harmless. To that end, it articulated the following standard: 

5

In the Sixth Amendment context, the statutory maximum “ ‘is not the maximum 

sentence a judge may impose after finding additional facts, but the maximum he may 

impose without any additional findings.’ ” (Cunningham, 549 U.S. at p. 275.)
9.

“if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the 

beyond-a-reasonable-doubt standard, unquestionably would have found true at least a 

single aggravating circumstance had it been submitted to the jury, the Sixth Amendment 

error properly may be found harmless.” (Sandoval, at p. 839.) In the Sixth Amendment 

context, the issue was whether the “defendant [was] eligible for the upper term ...”; the 

trial court’s consideration of additional factors not proved to a jury was not a federal 

constitutional question. (Id. at p. 839.)

As noted, in Flores, the Court of Appeal for the First District, Division Three 

extended the standard for harmless error applied in the Sixth Amendment context in 

Sandoval to section 1170, subdivision (b)(2) error.6 (Flores, supra, 75 Cal.App.5th at 

pp. 500–501.) The Court of Appeal for the Fourth District, Division One disagreed with 

Flores on that point. (People v. Lopez (2022) 78 Cal.App.5th 459, 465–468, & 468, 

fn. 11 (Lopez).)

The court in Lopez agreed with Flores that section 1170, subdivision (b)(2) error is 

subject to a harmless error analysis: “where a sentencing factor must be found true by a 

jury beyond a reasonable doubt and the court fails to submit that factor to the jury, the 

error in the court’s reliance on that fact may be subject to harmless error review as to 

whether the lack of a finding by the jury was prejudicial ....” (Lopez, supra, 78 

Cal.App.5th at p. 465.) But Lopez disagreed with Flores on the correct standard for 

harmlessness. Instead of the Sandoval harmless error standard, the Lopez court applied 

the following two-part standard for harmlessness: First, “[i]n order to conclude that the 

trial court’s reliance on improper factors that were not found true by a jury[,] ... admitted 

by [the defendant, or based on certified records of conviction] was not prejudicial, [the 

reviewing court] would have to conclude beyond a reasonable doubt that a jury would 

6 The Flores court did not explain why it concluded that the harmless error test 

applied in Sandoval applies in this context.
10.

have found true beyond a reasonable doubt every factor on which the court relied, 

because the amended statute requires that every factor on which a court intends to rely in 

imposing an upper term, with the exception of factors related to a defendant’s prior 

conviction(s), have been admitted by the defendant or proven to a jury (see § 1170, 

subd. (b)).” (Lopez, at pp. 465–466.) According to Lopez, if that conclusion is made, the 

defendant has suffered no prejudice. (Id. at p. 467 & fn. 11.) If not, the reviewing court 

“then consider[s] the second question, which is whether [it] can be certain, to the degree 

required by People v. Watson (1956) 46 Cal.2d 818, 836 [(Watson)], that the trial court 

would nevertheless have exercised its discretion to select the upper term if it had 

recognized that it could permissibly rely on only a single one of the aggravating factors, a 

few of the aggravating factors, or none of the aggravating factors, rather than all of the 

factors on which it previously relied. If the answer to both of these questions is ‘no,’ then 

it is clear that remand to the trial court for resentencing is necessary.” (Lopez, at p. 467, 

fn. 11.)

Lopez reasoned it is not enough that the reviewing court conclude that a trial court 

was permitted to impose the upper term because the jury would have found true a single 

aggravating circumstance beyond a reasonable doubt; whether the trial court could have

imposed the upper term did not completely resolve the issue. (Lopez, supra, 78 

Cal.App.5th at p. 467.) Instead, when a reviewing court concludes beyond a reasonable 

doubt that a jury would have found true fewer than all the aggravating circumstances 

beyond a reasonable doubt, it must still ask whether it is reasonably probable the trial 

court “would have exercised its discretion” to impose a sentence less than the upper term 

in the absence of the unproved aggravating circumstance(s). (Ibid.)

We agree with the Lopez court that a reviewing court finding beyond a reasonable 

doubt that the jury would have found a single aggravating circumstance true beyond a 

reasonable doubt is insufficient to conclude that the error was harmless. In other words, 

we disagree with Flores that Sandoval is applicable in this context. We further agree that 
11.

the second step of the Lopez analysis—considering whether the trial court would have 

imposed a lesser term in absence of the aggravating circumstances not provable on the 

record before the reviewing court—is necessary. To find that section 1170, 

subdivision (b) error is harmless when fewer than all of the circumstances relied upon by 

the trial court could have been proved to the jury, we must determine whether the trial 

court would nevertheless have imposed the upper term based on the remaining 

aggravating circumstances.

Despite our agreement with Lopez on the majority of the standard it articulated, we 

are unconvinced that the harmless beyond a reasonable doubt standard of Chapman v. 

California (1967) 386 U.S. 18 (Chapman)—applicable to errors implicating federal 

constitutional rights—must be applied to all aggravating circumstances in the Lopez

court’s first step. Lopez does not provide a clear explanation for why the Chapman 

standard for harmless error applies to all aggravating circumstances. Indeed, the only 

citation that the Lopez court provides for the proposition that Chapman applies to every 

aggravating circumstance is citation to section 1170, subdivision (b), itself. While 

Sandoval directs that at least one aggravating circumstance must be proved to the 

Chapman harmless error standard to satisfy the Sixth Amendment (i.e., for it to be 

permissible for the trial court to impose the upper term consistent with the 

Sixth Amendment), ordinary errors of state law are subject to review pursuant to Watson, 

supra, 46 Cal.2d 818.7 (People v. Breverman (1998) 19 Cal.4th 142, 171 [when a state 

statutory right to a jury determination is violated, such error “is state law error alone, and 

7 The test under Watson is whether, “ ‘after an examination of the entire cause, 

including the evidence,’ [the reviewing court] is of the ‘opinion’ that it is reasonably 

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

the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) In this context, the 

question for the reviewing court would be whether there is a reasonable probability that 

the trial court would not have found the aggravating circumstance(s) true beyond a 

reasonable doubt.
12.

thus subject, under article VI, section 13 of the California Constitution, to the Watson 

harmless error test”; “the state-created right to jury determination” does not implicate 

federal due process interests].)

We note that the Chapman standard of harmless error is compelled when an 

element of an offense or a sentencing factor necessary to impose a sentence above the 

statutory maximum is not presented to the jury. (Washington v. Recuenco (2006) 548 

U.S. 212, 220 [firearm enhancement sentencing factor harmless error is decided pursuant 

to Chapman]; People v. French (2008) 43 Cal.4th 36, 52–53 [applying only Chapman 

where the trial court imposed the upper term based on one aggravating circumstance and 

that circumstance was not proved to the jury].) A fact that is necessary to impose a 

sentence above the statutory maximum must be proved to a jury beyond a reasonable 

doubt. However, as Sandoval has made clear, when multiple aggravating circumstances 

not proved to the jury are relied upon by a trial court in imposing the upper term, the 

reviewing court must only conclude beyond a reasonable doubt that one of those 

circumstances would have been found true by the jury beyond a reasonable doubt to 

avoid offending the Sixth Amendment. (Sandoval, supra, 41 Cal.4th at p. 839 [“so long 

as a defendant is eligible for the upper term by virtue of facts that have been established 

consistently with Sixth Amendment principles, the federal Constitution permits the trial 

court to rely upon any number of aggravating circumstances in exercising its discretion to 

select the appropriate term by balancing aggravating and mitigating circumstances, 

regardless of whether the facts underlying those circumstances have been found to be true 

by a jury”].) Accordingly, one aggravating circumstance must be reviewed pursuant to 

Chapman, but the remaining aggravating circumstances involve only a state-created right 

to a jury trial that must be reviewed pursuant to Watson.

In sum, we think the correct standard for harmless error lies between the standards

articulated in Flores and Lopez; Flores sets too low a standard for harmlessness and 

Lopez too high. We instead apply a version of the standard articulated in Lopez, modified 
13.

to incorporate Watson in the first step: 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 the aggravating circumstances would have been proved to the 

respective standards, any error was harmless. If not, we move to the second step of 

Lopez, (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, we vacate the sentence and remand for resentencing 

consistent with section 1170, subdivision (b).

With that standard in mind, we revisit the aggravating circumstances relied upon 

by the trial court. As noted, the trial court relied upon defendant having taken advantage 

of a position of trust, defendant having suffered numerous prior convictions, defendant’s 

unsatisfactory “performance on misdemeanor probation ..., in that he violated or 

reoffended[,]” and “the victim[’s] particular[] vulnerab[ility], in that she ha[d] a physical 

disability.”

We conclude beyond a reasonable doubt the jury would have found true beyond a 

reasonable doubt at least one aggravating circumstance: that defendant had numerous 

prior convictions as an adult.

8

 Defendant’s history of convictions is well documented; 

the probation report sets out numerous convictions committed over about 33 years.

Defendant did not object to the criminal history set out in the probation officer’s report

and there is no logical reason he would not have done so if the report had been 

inaccurate.

8 We note that defendant’s criminal history did not need to be proved to a jury. The 

trial court could instead have relied upon a certified record of conviction for those 

offenses. (§ 1170, subd. (b)(3).)
14.

We further conclude that there is no reasonable probability9that the jury would 

not have found true beyond a reasonable doubt that defendant’s performance on 

misdemeanor probation was unsatisfactory, insofar as he was convicted of new offenses

while on probation and violated probation repeatedly between 1989 and 2007.

10

 As with 

defendant’s history of criminal convictions, defendant’s violations of probation by 

commission of new offenses can be proved by court records, specifically those granting 

probation and reflecting admission of probation violations and commission of new 

offenses.

We cannot, however, come to the same conclusion regarding the two remaining 

aggravating circumstances in light of the jury’s hung verdicts, two of which involved Doe 

as the victim. The jury did not unanimously find that defendant penetrated Doe’s vagina 

with his finger (count 6) or touched her breast (count 8), suggesting that the two holdout 

jurors may have believed that defendant touched Doe’s vagina when she was 

masturbating and did not otherwise touch her. They may also have believed that Doe was 

overly sexualized and that defendant did not take advantage of her trust, but instead 

touched her because she asked him to. Thus, we cannot say with confidence sufficient to 

meet the Chapman or Watson standards that the jury would have found beyond a 

reasonable doubt that defendant took advantage of a position of trust to commit the 

offense.

9 We would reach the same conclusion if we applied the Chapman standard.

10 Defendant appears to have violated probation every time it was granted to him 

between 1989 and 2007. Nevertheless, defendant also appears to have been repeatedly 

reinstated on probation after his violations. While we note that whether a jury would 

have found that defendant’s prior performance on misdemeanor probation was 

“unsatisfactory” is a somewhat subjective determination, defendant’s repeated violations 

of probation and new convictions support our conclusion—the jury would have found 

beyond a reasonable doubt that defendant’s performance was unsatisfactory.
15.

Further, we cannot say that the jury would have found that Doe was particularly 

vulnerable because of her physical disability. This would have been a subjective 

assessment for the jury, based on more than the simple fact that Doe had a disability, and 

we cannot say how the jury would have assessed her. (Sandoval, supra, 41 Cal.4th at 

p. 840 [“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”].)

Left with only two of four the circumstances in aggravation relied on by the trial 

court, and in light of the changes brought about by Senate Bill 567, we conclude that 

there is a reasonable probability that the trial court would have imposed a lesser term of 

imprisonment on count 7.

In summary, we conclude the jury unquestionably would have found true 

two aggravating circumstances, provable by official records; however, because we could 

not conclude that there is no reasonable probability the trial court would not have 

imposed a lesser term in light of the fewer aggravating circumstances provable from the 

record, we must vacate defendant’s sentence and remand for resentencing.

We express no opinion regarding the appropriate sentence on remand.

DISPOSITION

Defendant’s sentence is vacated and the matter is remanded for resentencing 

consistent with section 1170, subdivision (b).