Filed 8/26/20 P. v. Figueroa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AURELIO MORENO FIGUEROA,

Defendant and Appellant.

F077514

(Super. Ct. No. VCF331062)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. 

Kalashian, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer 

Oleksa, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-
2

Aurelio Moreno Figueroa was convicted of seven crimes related to sexually 

abusing a minor. The prosecution pled and proved two crimes violated California’s One 

Strike Law. (Pen. Code, § 667.61.)1 Depending on the circumstances pled and proven, 

the One Strike Law mandates a sentence of either 15 years to life, 25 years to life, or life

without the possibility of parole. (§ 667.61, subds. (a), (b), (j), (l), & (m).)

Figueroa was sentenced to serve several consecutive sentences, including two 15-

years-to-life sentences under the One Strike Law. He contends the court erred in 

pronouncing judgment because the court stated no reason for its decision to impose 

consecutive sentences that were not otherwise mandatory. On this basis, he seeks a new 

sentencing hearing. 

The People likewise seek a new sentencing hearing but for a different reason. 

They contend the court erroneously imposed less severe punishment than required by the 

One Strike Law. They request a new sentencing hearing for the trial court to properly 

impose the greater sentence. 

We conclude the People are correct, rendering Figueroa’s claims moot. We will 

vacate the sentence and remand for a new sentencing hearing. In so doing, we determine 

an increase in sentence does not violate double jeopardy principles and the pleadings 

adequately advised of the maximum potential punishment.

BACKGROUND

Charges

The Tulare County District Attorney charged Figueroa with committing seven 

crimes. Counts 1 and 2 charged violations of section 288, subdivision (b)(1), forcible 

lewd act on a victim under 14 years old. Each count included a special allegation the 

crimes involved binding and tying the victim within the meaning of section 667.61, 

subdivisions (a), (b), and (e).

1 All statutory references are to the Penal Code.
3

Counts 3, 4, and 5 charged violations of section 288, subdivision (a), lewd act on a 

victim under 14 years old. Counts 4 and 5 included a special allegation the crimes 

involved substantial sexual conduct within the meaning of section 1203.066, subdivision 

(a)(8).2

Count 6 charged a violation of section 136.1, subdivision (b)(2), dissuading a 

witness from participating with the prosecution. Count 7 charged a violation of section 

273.6, subdivision (a), disobeying a domestic relations court order. 

Trial Evidence

The victim testified Figueroa assaulted her while she was sleeping in her bed. 

After binding her wrists with window curtains and electrical cords, he attempted to 

penetrate her and grabbed her breast. DNA samples taken near the victim’s genitalia 

matched Figueroa’s DNA profile. 

The victim also testified to two other incidents involving Figueroa. In one 

incident, he carried her to bed and, while lying down with her, grabbed her breast. In the 

other incident, he placed his hand atop her clothes near her vagina. After she removed

his hand, he replaced it. 

After Figueroa was arrested, he wrote several letters to the victim’s mother. In the 

letters he variously stated that not cooperating with the prosecution would benefit his 

case.3 

Verdicts and Sentence

Figueroa was convicted as charged. All special allegations were found true. He 

was sentenced to serve 40 years eight months to life in prison as follows: count 1, 15 

2 This special allegation renders a person ineligible for probation.

3 Before trial, Figueroa pled no contest to count 7, disobeying a domestic relations 

order. 
4

years to life; count 2, 15 years to life; count 3, six years; count 4, two years; count 5, two 

years; count 6, eight months.4 

DISCUSSION

The People’s request to increase Figueroa’s sentence upon remand raises two 

constitutional issues: Double jeopardy and due process. We address each in turn.

I. Double Jeopardy Is Not Implicated

Under the One Strike Law, enumerated sex crimes committed under specific 

circumstances are punished by life imprisonment. (§ 667.61.) The minimum sentence 

under the One Strike Law is 15 years to life. (§ 667.61, subd. (b).) When a victim is 

under 14 years old, the minimum punishment is instead 25 years to life. (§ 667.61, subd. 

(j)(2).)

Pursuant to the One Strike Law, the court here sentenced Figueroa to serve 15 

years to life in prison for each section 288, subdivision (b) conviction (counts 1 and 2). 

This sentence is error because the victim was under 14 years old. Indeed, all victims of 

section 288, subdivision (b) are necessarily under 14 years old. The correct punishment 

is “imprisonment in the state prison for 25 years to life.”

5

 (§ 667.61, subd. (j)(2).)

“An unauthorized sentence is subject to correction when it comes to the attention 

of the reviewing court.” (People v. Tua (2018) 18 Cal.App.5th 1136, 1140.) “‘The 

unauthorized sentence exception is “a narrow exception” to the waiver doctrine that 

normally applies where the sentence “could not lawfully be imposed under any 

circumstance in the particular case,” for example, “where the court violates mandatory 

provisions governing the length of confinement.”’” (People v. Turrin (2009) 176 

Cal.App.4th 1200, 1205.) The “sentence can be corrected at any time.” (Ibid.)

4 No time was imposed on count 7.

5 Section 667.61, subdivision (j)(1) provides for imprisonment for life without the 

possibility of parole under circumstances not applicable to this case.
5

Ordinarily, “[w]hen a defendant successfully appeals a criminal conviction, 

California’s constitutional prohibition against double jeopardy precludes the imposition 

of more severe punishment on resentencing.” (People v. Hanson (2000) 23 Cal.4th 355, 

357.) But “[t]he rule is otherwise when a trial court pronounces an unauthorized 

sentence. Such a sentence is subject to being set aside judicially and is no bar to the 

imposition of a proper judgment thereafter, even though it is more severe than the 

original unauthorized pronouncement.” (People v. Serrato (1973) 9 Cal.3d 753, 764, 

disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572.)

The sentence in this case was unauthorized. The Legislature prescribed mandatory 

sentences for crimes involving the circumstances in this case. Any deviation from the 

mandatory sentence is unauthorized. (See § 667.61, subd. (g) [no discretion to strike 

special allegation]; In re Vaquera (2019) 39 Cal.App.5th 233, 244-245, review granted 

November 26, 2019, S258376 (Vaquera) [One Strike sentence is mandatory].) 
6

Accordingly, correcting the sentence does not implicate double jeopardy.6 (People v. 

Vizcarra (2015) 236 Cal.App.4th 422, 436-438.)

II. Due Process Is Satisfied

While we conclude an increased sentence upon remand in this case would not 

violate double jeopardy principles, due process concerns present a distinct issue. The 

issue is currently under review in the Supreme Court in Vaquera, supra, 39 Cal.App.5th 

233, and People v. Zaldana (2019) 43 Cal.App.5th 527, review granted March 18, 2020, 

S259731 (Zaldana).

“A defendant has a due process right to fair notice of the allegations that will be 

invoked to increase the punishment for his or her crimes. [Citation.] To the extent 

6

 Figueroa’s consecutive sentencing claim is moot by virtue of our decision to 

remand the matter for a new sentencing hearing. We express no opinion on whether 

concurrent or consecutive sentences are ultimately appropriate but note the following. 

The trial court must comply with section 667.61, subdivision (i), which mandates “a 

consecutive sentence for each offense that results in a conviction under this section if the 

crimes involve separate victims or involve the same victim on separate occasions.” “In 

determining whether crimes against a single victim were committed on separate 

occasions ... the court shall consider whether, between the commission of one sex crime 

and another, the defendant had a reasonable opportunity to reflect upon his or her actions 

and nevertheless resumed sexually assaultive behavior. Neither the duration of time 

between crimes, nor whether or not the defendant lost or abandoned his or her 

opportunity to attack, shall be, in and of itself, determinative on the issue of whether the 

crimes in question occurred on separate occasions.” (§ 667.6, subd. (d).) “[M]ultiple sex 

offenses occur[] on a ‘single occasion’ ... if there [is] a close temporal and spatial 

proximity between offenses.” (People v. Jones (2001) 25 Cal.4th 98, 100-101.) The 

court must also comply with rules 4.406 and 4.425 of the California Rules of Court. (See 

People v. Henderson (2020) 46 Cal.App.5th 533, 553 [“If the court elects consecutive

sentences it must state reasons for its decision.”].) 

It is worth noting the trial court may ultimately impose a less severe total sentence. 

For example, if the court upon remand concludes concurrent sentences on counts 1 and 2 

are appropriate, the total sentence will necessarily decrease. Neither party contends this 

possibility renders the issue not ripe for decision. We conclude remand to the trial court 

to impose a more severe sentence on any individual count is sufficient to present an issue 

ripe for decision.
7

[Figueroa] contends he was not provided adequate notice of the punishment he faced, we 

are not persuaded.” (People v. Houston (2012) 54 Cal.4th 1186, 1227.)

The information in this case alleged a special allegation pursuant to section 

667.61, subdivisions (a), (b), and (e), and listed the circumstance of “tying or binding.” 

Section 667.61, subdivision (a) prescribes punishment of 25 years to life. This alone 

constituted adequate notice of a potential 25-years-to-life sentence.

More importantly, section 667.61, subdivision (b) prescribes punishment of 15 

years to life “[e]xcept as provided in subdivision ... (j).” Subdivision (j) in turn clearly 

states that when the victim is under 14 years old, the punishment is 25 years to life. 

(§ 667.61, subd. (j)(2).) Because subdivision (b) clearly, directly, and immediately 

references subdivision (j), the subdivisions are necessarily read in conjunction. 

(Vaquera, supra, 39 Cal.App.5th at p. 242 [“The 25-year-to-life [sentence] was 

effectively noted in the information by reference to section 667.61, subdivision (b), 

which specifically references, in its introductory clause, section 667.61, subdivision (j), 

as an exception to its provisions.”]; Zaldana, supra, 43 Cal.App.5th at p. 535 [same].) 

No other conclusion is reasonable. 

We recognize the Sixth District held otherwise in People v. Jimenez (2019) 35 

Cal.App.5th 373. The court there held the reference in the information to section 667.61, 

subdivision (b) was inadequate to notify the defendant the potential sentence was 25 

years to life. (People v. Jimenez, supra, at pp. 395-398.) We disagree with Jimenez for 

two reasons.

First, the information here referenced both section 667.61, subdivisions (a) and 

(b). Subdivision (a) states the punishment is 25 years to life, albeit in circumstances 

ultimately neither pled nor proved. Second, the Jimenez court “overlooked a critical fact: 

subdivision (b) itself refers to subdivision (j).” (Zaldana, supra, 43 Cal.App.5th at p. 

535.) As explained above, subdivisions (b) and (j) are necessarily read in tandem.
8

The prosecution here pled and proved the circumstances necessary to prove the 

special allegations. (§ 667.61, subd. (o) [“The penalties provided in this section shall 

apply only if the existence of any circumstance specified in subdivision (d) or (e) is 

alleged in the accusatory pleading pursuant to this section, and is either admitted by the 

defendant in open court or found to be true by the trier of fact.”].) Because the pleadings 

appropriately referenced the applicable circumstance, Figueroa was afforded adequate 

notice that 25 years to life was a potential sentence upon conviction.7 8

DISPOSITION

The sentence is vacated. We remand to the trial court to conduct a new sentencing 

hearing consistent with this opinion.

SMITH, J.

WE CONCUR:

DETJEN, Acting P.J.

MEEHAN, J.

7 We further note that moments after the verdicts were read and recorded, 

Figueroa’s counsel stated, “He’s looking at about a hundred to life.” Although counsel’s 

statement constituted both a gross overestimation and oversimplification, it nonetheless 

sheds light on whether notice in the pleadings was constitutionally adequate.

8 Figueroa raised an additional claim relating to his inability to pay fines and fees 

imposed as part of his sentence. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.) 

This claim is moot as he may raise it in the trial court upon remand.