Filed 9/13/23 P. v. Carmona CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO GONZALEZ CARMONA,

Defendant and Appellant.

D079779

(Super. Ct. No. SCE392322)

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

Daniel G. Lamborn, Judge. Affirmed in part, reversed in part, and remanded 

for resentencing.

Daniel J. Kessler, 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, Steve 

Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and 

Respondent.

Francisco Gonzalez Carmona was convicted and sentenced on charges 

that he engaged in lewd and lascivious acts with and upon two children, and 
2

sexually penetrated one of them. He contends the trial court erred: first, by

admitting in evidence out-of-court statements of alleged victims other than 

the two to whom the charges pertained; and second, by sentencing Carmona

to an upper term of imprisonment without having specified any

circumstances in aggravation to justify the upper term. As to the first 

assignment of error, we conclude Carmona forfeited his right to challenge the

out-of-court statements because his counsel did not object, move to strike, or 

request a limiting instruction with regard to the statements at trial. As to 

the second assignment of error, we conclude that resentencing is required in 

order to comply with sentencing-law amendments that took effect shortly 

after the trial court imposed its sentence. Hence we affirm the conviction,

vacate the sentence, and remand the matter for resentencing.

I.

Factual and Procedural Background

In 2021, the district attorney charged Carmona with offenses based on 

allegations that he had sexually penetrated one of his granddaughters (the 

first granddaughter) when she was below the age of 11, that he had engaged 

in lewd and lascivious acts with and upon that same granddaughter at a time 

when she was below the age of 14, and that he had engaged in lewd and 

lascivious acts decades earlier with and upon one of his nieces (the niece) 

when she, too, was below the age of 14.1 

1 The offenses alleged were: one count of violation of Penal Code section 

288.7, subdivision (b) (sexual penetration of a child 10 years of age or younger 

by a person 18 years of age or older) with respect to the first granddaughter; 

two counts of violation of Penal Code section 288, subdivision (a) (commission 

of a lewd or lascivious act upon or with a child under 14 years of age) also

with respect to the first granddaughter; and 13 counts of violation of the 

same provision (§ 288, subd. (a)) with respect to the niece.
3

A. The Evidence Presented at Trial

At trial, the prosecution presented testimony from the first

granddaughter and the niece; as well as a second granddaughter and one of 

Carmona’s daughters (the daughter). As discussed in somewhat more detail

post, each of these witnesses testified that, when she was a child, she had

been touched inappropriately by Carmona and told by Carmona not to tell 

others. 

The first granddaughter (who was the subject of counts 1 through 3) was 

15 years old when she took the witness stand. She testified: that, 

commencing when she was seven years old and continuing until a time when 

she was 12 years old, Carmona had used his fingers, at times over her clothes 

and at other times under her clothes, to touch (or rub) the outside and, over 

time, the inside of her vagina on “many, many” (“more than 30”) occasions,

and also to touch her breasts on occasion during this same period; that this 

touching had occurred in the bedroom of a family member’s home in the 

United States and in the garden, living room, garage, and a bedroom 

(Carmona’s bedroom) of Carmona’s home in Mexico; that she often “would 

wake up to his touching”; that the touching sometimes hurt (“[a] seven” “on a 

scale from one to ten with ten being the most force”); and that Carmona told 

her not to tell anyone.

The niece (who was the subject of counts 4 through 16) was an adult 

with children of her own when she took the stand. She testified: that on 

many occasions, beginning when she was seven years old or younger and 

continuing until she was 13 or 14 years old, her uncle (Carmona) would insert 

two or three fingers into her vagina; that, every time he touched her vagina, 

he would simultaneously touch her breasts; that this touching had occurred 

in a bedroom of Carmona’s home in the United States and in a bedroom of
4

Carmona’s home in Mexico; that the touching was always inside her 

underwear and under her shirt; that this touching occurred approximately 

two to three times a month, when she was between 11 years old and 13 or 14 

years old; that “[h]e would pull . . . down her [underwear and shorts] to put 

his hand in”; that the touching hurt; that the touching would begin while she 

was asleep and she would wake up to it; and that he told her “not tell anyone 

because they wouldn’t believe [her]” and that “it would be his word against 

[hers].”

The second granddaughter—who was ten years old when she took the 

stand—testified: that, on several occasions commencing when she was five 

years old and continuing until a time when she was six years old, Carmona 

had used his hand, at times over her clothes and at other times over her 

underwear, to touch her vagina, her chest, and “[t]he back part where we go 

to the bathroom number two”; that this touching had occurred in her bedroom 

at her home in Mexico and in Carmona’s bedroom in his home in Mexico;

that, on one occasion in which Carmona touched her in this fashion, “he 

locked the door to the bedroom [with just the two of them inside] and [she]

got very scared”; that on another occasion she “woke up to grandpa . . . 

touching [her]”; that the touching hurt; that on multiple occasions Carmona 

told her not to tell anyone; and that on at least one occasion he told her 

“that[,] if I told anyone, he was going to take revenge.” 

The daughter—who was an adult with grown children of her own when 

she took the stand—testified: that, for a period of time during her early teen

years and possibly earlier, Carmona used to use his hand and at least one 

finger to touch her vagina “like probably a couple times a month”; that 

“[s]ometimes it would be the outside of her vagina’’ and “sometimes it would 

be the inside”; that “it hurt” when he touched the inside of her vagina; that 
5

he also used to touch her breasts during this period of time; that some of the 

touching occurred in a van and some of it occurred in a trailer; that she “told 

him to stop . . . every time” he touched her vagina and that “sometimes he 

would [stop]” in response to her telling him to stop and that “sometimes he 

wouldn’t”; that he used to tell her “[a]ll the time” not to say anything to her 

mother; and that, when she finally reported the conduct, she was removed to 

a series of group homes where she lived until she was 18 years old. 

The prosecution also presented testimony from 12 additional witnesses,

including five members of the Carmona family, three law enforcement 

personnel, three social workers experienced in conducting forensic interviews 

of children in situations involving allegations of child abuse, and a

pediatrician employed by Rady Children’s Hospital who specializes in child 

abuse. The pediatrician testified that both granddaughters had tested 

positive for a sexually transmitted infection (STI) and that, “in [a child] this 

age . . . who is not reporting consensual sexual activity,” such a test result “is 

definitive for [there having been] some type of sexual contact.”2

In addition, the prosecution presented out-of-court statements made by

each of the two granddaughters, the daughter, and the niece. The out-ofcourt statements of the granddaughters were introduced through video-andaudio recordings of forensic interviews of the granddaughters by one of the 

2 The pediatrician testified that, when asked, the first granddaughter 

indicated that she had not been involved in any type of sexual contact apart 

from the touching by Carmona. The record does not reveal whether the same 

type of inquiry was posed to the second grandchild (who was below the age of 

ten when the consultation with the pediatrician occurred). The pediatrician 

also testified that the types of sexual contact through which an STI can be 

transmitted include “when the offender’s secretions are on his or her hand 

and then gets placed into the genitalia of a child,” and that an STI can be 

transmitted “in the same way[] if there is contact with infectious secretions to 

the mucus membranes of the anus.”
6

social worker witnesses (the forensic examiner), accompanied by transcripts

of the interviews and testimony from the forensic examiner and a detective.

The daughter’s out-of-court statements were introduced via testimony from

two witnesses. One of these two witnesses was a retired sheriff’s deputy who 

recounted an occasion in 1991, some 30 years earlier, when he had responded 

to a radio call relating to a report of a family disturbance and the daughter, 

aged 15, had told him that her father (Carmona) had been touching her 

vagina and her breasts frequently over the course of the preceding two years.

The second of the two witnesses through whom the daughter’s out-of-court 

statements were introduced was another one of the social worker witnesses

(the CPS social worker), now retired, who also had become involved following 

the family disturbance in 1991. The niece’s out-of-court statements were 

introduced via testimony from a detective.

The defense presented no witnesses.

B. Proceedings Related to the Use at Trial of the Challenged Out-of-Court 

Statements

1. The Defense’s Pre-trial Objections to the Challenged Out-ofCourt Statements Being Used at Trial 

The use of the out-of-court statements at trial was not the first 

indication that the prosecution intended to use the out-of-court statements of 

the second grandchild and the daughter (the challenged out-of-court

statements) to establish guilt. At a pre-trial hearing the day before opening 

statements, the court heard in limine arguments addressed to this very topic.

During the pre-trial hearing, the defense interposed objections to such use, 
7

citing Evidence Code section 3523 as the basis for the objections. The court 

provisionally overruled these objections.

With respect to the out-of-court statements of the second 

granddaughter, defense counsel stated:

“I would just submit on—just on 352, that if we get too into 

the weeds and building up and putting context and putting 

specifics to these prior statements when we are going to 

hear from [the second granddaughter and the daughter]

directly, that we might be wasting time and that really 

becomes cumulative.”

In response, the court stated: “I will be sensitive . . . to any arguments that 

some of the statements were cumulative, but at least initially I will rule that 

those statements are admissible at this time.” 

Similarly, with respect to the out-of-court statements of the daughter, 

defense counsel stated:

“I think, once again, once we get more into the weeds of 

these . . . accusations and . . . allegations [by the daughter], 

it’s going to only expand the—what we need to examine 

with each and every witness.

[¶] . . . [¶]

“[I]t’s going to open up a whole other bag of issues. So I 

think that’s our concern is it’s just going to send us in all 

these different directions when we are just trying to stay 

focused on whether or not the allegations as posed by [the 

first granddaughter and the niece] are true.”

3 Evidence Code section 352 states: “The court in its discretion may 

exclude evidence if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue consumption of time 

or (b) create substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.”
8

In response, the court stated: “The Court will allow limited disclosure of 

[such evidence] subject to any further objections by [defense counsel], as far 

as being cumulative or 352 material.” 

The arguments predicated on Evidence Code section 352 were the only 

arguments defense counsel advanced as a basis for its objections.

2. The Absence of Any Objections at Trial to Use of the Challenged 

Out-of-Court Statements

During its case in chief, the prosecution played the video recording of 

the forensic interview of the second granddaughter for the jury, distributed 

the transcript of that interview to the jury, examined the forensic examiner 

about the interview,4 elicited from the retired sheriff’s deputy his account of 

what the daughter had told him during his encounter with her following the 

family disturbance in 1991, and elicited from the CPS social worker her 

account of what the daughter had told her during the CPS agency’s follow-up 

response in 1991—all without defense counsel renewing his pre-trial 

Evidence Code section 352 objections to the challenged out-of-court 

statements or interposing any other objection or request for a limiting 

instruction, with respect to the use of such evidence.

Before resting its case, the prosecution moved to admit in evidence

several trial exhibits, including the recordings of the forensic interviews of 

the two granddaughters. The trial court asked defense counsel: “Any 

objection to those . . . ? Defense counsel replied: “No.” 

4 The prosecution also played for the jury the video recording of the 

forensic interview of the first granddaughter (which is not being challenged 

on appeal). In addition, it distributed the transcript of that interview to the 

jury, and examined the forensic examiner about that interview.
9

C. Verdicts and Sentencing

Following closing arguments, the jury convicted Carmona on each of 

the charges, comprising 16 counts in all. With regard to the first 

granddaughter, the jury returned verdicts finding Carmona guilty on one 

count of the crime of sexual penetration with a child 10 years old or younger, 

in violation of Penal Code section 288.7, subdivision (b), and on two counts of

the crime of lewd act upon a child, in violation of Penal Code section 288, 

subdivision (a). With regard to the niece, the jury returned verdicts finding 

Carmona guilty on 13 counts of the crime of lewd act upon a child, in 

violation of section 288, subdivision (a).

The jury also made a further pair of findings (one under a section of the 

Penal Code relating to eligibility for probation,5 and the other under what is 

commonly known as the one-strike rule6) on each of the two counts as to

which it found that Carmona had committed a lewd act upon the first 

granddaughter. It was not asked to make findings as to any circumstances in 

aggravation; nor did Carmona stipulate to any such circumstances.

Some weeks later, the trial court pronounced a sentence as to each 

count, resulting in the imposition of an aggregate term of imprisonment

5 “[W]e further find the allegation that [Carmona] did have substantial 

sexual conduct with [the first granddaughter], a child under fourteen years of 

age, in the commission of the above described felony of Lewd Act On A Child, 

within the meaning of Penal Code section 1203.066[, subdivision] (a)(8), to be 

True.” 

6 “[W]e further find the allegation that [Carmona] has been convicted in 

[this case] of committing an offense specified in subdivision (c) against more 

than one victim, within the meaning of Penal Code section 667.61[, 

subdivisions] (b)[,] (c) [&] (e) to be True.”
10

totaling 30 years to life plus an additional 32 years.7 As to one of the 

counts—count 4, for violation of Penal Code section 288, subdivision (a)—the 

court sentenced Carmona to imprisonment for the upper term of eight years. 

In sentencing Carmona to the upper term on this offense, the court did not 

specify any of the statutory “circumstances in aggravation” enumerated in 

California Rules of Court, rule 4.421. 

Instead, the court stated:

“Count [4], the court did look at that. Considered the 

longevity of the offenses, considered the circumstances of 

the offense in this particular case. Under rule 4.421(a), the 

court has considered the individual rules under that rule, 

and does find that the upper term is appropriate in this 

case; the upper term of eight years . . . .”

Thereafter, referring to all 16 counts, the court adverted to one of the 

statutory circumstances in mitigation that are enumerated in California 

Rules of Court, rule 4.423, stating: “The court is mindful of the defendant’s 

lack of convictions.” (See Cal. Rules of Court, rule 4.423(b)(1).) “But,” the 

court continued, “the lives that Mr. Carmona has impacted over decades 

deserve[] these sentences in this case.”

This was the extent of the trial court’s articulation of its rationale for 

imposing the upper term.

7 The 30 years to life is comprised of 15 years to life on count 1 plus an 

additional 15 years to life on count 3, and the additional 32 years is 

comprised of eight years on count four plus two years each on counts five 

through 16, with all terms to be served consecutively. The court did not 

impose a term of imprisonment on count 2 because it concluded “punishment 

under this [count] is barred by Penal Code [section] 654.”
11

II.

Discussion

As noted ante, Carmona contends the trial court erred in two respects: 

first, by admitting in evidence the challenged out-of-court statements (i.e., 

the out-of-court statements of the second granddaughter and the daughter); 

and second, by sentencing him to the upper term of imprisonment without 

specifying any circumstances in aggravation to justify the upper term. We 

examine each of these contentions in turn.

A. Admission of the Challenged Out-of-Court Statements

1. The Absence of an Objection at the Time of Trial

In support of his contention that the trial court erred in admitting the 

challenged out-of-court statements in evidence, Carmona argues that the 

court incorrectly applied Evidence Code section 13608 and the fresh 

8 Evidence Code section 1360 articulates circumstances under which, 

“[i]n a criminal prosecution where the victim is a minor, a statement made by 

the victim when under the age of 12 describing any act of child abuse or 

neglect performed with or on the child by another, or describing any 

attempted act of child abuse or neglect with or on the child by another, is not 

made inadmissible by the hearsay rule.” (Evid. Code § 1360(a).) Carmona 

contends that this provision applies only to statements by alleged victims to 

whom the charges pertain, and not to other alleged victims; however, for 

reasons stated in this opinion, we do not find it necessary to address this 

contention.
12

complaint doctrine.9 But these arguments do not help Carmona, because he

did not assert section 1360 or the fresh complaint doctrine as a basis for any 

objection, motion in limine, motion to strike, or request for limiting 

instruction at the time of trial.

In this regard, Evidence Code section 353, subdivision (a) forecloses

reversal of a judgment based on erroneous admission of evidence absent an

objection or motion to strike that was timely made on grounds that are the 

same as those being advanced on appeal. (Evid. Code § 353, subd. (a)] [“A 

verdict or finding shall not be set aside, nor shall the judgment or decision 

based thereon be reversed, by reason of the erroneous admission of evidence 

unless . . . [t]here appears of record an objection to or a motion to exclude or 

to strike the evidence that was timely made and so stated as to make clear 

the specific ground of the objection or motion”].) The grounds that Carmona 

advanced in support of the objections he expressed during the pre-trial 

hearing (Evid. Code § 352) did not include the grounds he is advancing now. 

And, in People v. Demetrulias (2006) 39 Cal.4th 1 (Demetrulias), our Supreme 

Court has stated:

“Evidence Code section 353, subdivision (a) allows a 

judgment to be reversed because of erroneous admission of 

evidence only if an objection to the evidence or a motion to 

strike it was ‘timely made and so stated as to make clear 

the specific ground of the objection.’ Pursuant to this 

9 The fresh complaint doctrine is a mechanism that “allows evidence to 

be admitted for the limited purpose of showing that a complaint was made by 

the victim, and not for the truth of the matter stated.” (People v. Ramirez

(2006) 143 Cal.App.4th 1512, 1522 (Ramirez) [citing People v. Brown (1994) 

8 Cal.4th 746, 761].) “Evidence admitted pursuant to this doctrine may be 

considered by the trier of fact for the purpose of corroborating the victim's 

testimony, but not to prove the occurrence of the crime.” (Ramirez, at p. 1522

[citing People v. Bernstein (1959) 171 Cal.App.2d 279, 285].) For reasons 

stated in this opinion, we do not find it necessary to address this contention.
13

statute, ‘ “we have consistently held that the ‘defendant’s 

failure to make a timely and specific objection’ on the 

ground asserted on appeal makes that ground not 

cognizable.” ’ [Citation.] Under this principle, defendant’s 

claim that . . . admission of [the] evidence [challenged on 

appeal] violated [the] Evidence Code . . . is not cognizable; 

defendant forfeited his claim by failing to make timely 

objections or a timely motion to strike on that specific 

ground.”

(Demetrulias, supra, at pp. 20–21 [concluding defendant that had forfeited 

his claim under Evid. Code § 1103, that evidence of victims’ peaceful 

character was inadmissible].) 

Moreover, even if the objections that Carmona made during the pretrial hearing, and that the court provisionally overruled, had included the

two bases that he is advancing now (Evid. Code § 1360 and the fresh 

complaint doctrine), such inclusion would not suffice to spare Carmona from 

the consequences of his not having timely and specifically reiterated those 

bases for objecting at the time of trial.

“Neither of these bases of relevance was raised or discussed 

in the hearing on . . . motion[s] in limine, nor did defendant 

take advantage of the trial court’s offer to reconsider its in 

limine ruling at any point during trial. A tentative pretrial 

evidentiary ruling, made without fully knowing what the 

trial evidence would show, will not preserve the issue for 

appeal if the appellant could have, but did not, renew the 

objection or offer of proof and press for a final ruling in the 

changed context of the trial evidence itself.”

(People v. Holloway (2004) 33 Cal.4th 96, 133.) Indeed, far from asserting at

(or before) trial the bases for inadmissibility that he is advancing now,

Carmona instead did the opposite—by acquiescing to the prosecution’s 

motion to admit in evidence the recording of the forensic interview of the 

second granddaughter.
14

2. The Ineffective Assistance of Counsel Argument

Acknowledging the problem posed by the fact that his trial counsel did 

not assert at trial the grounds for an evidentiary challenge that his appellate 

counsel now advocates, Carmona asserts that—to the extent that the absence 

of such a challenge at trial has resulted in a forfeiture—he received

ineffective assistance of counsel at his trial. To support this assertion, 

Carmona asserts that the video of the forensic interview of the second 

granddaughter was cumulative and especially prejudicial because it depicted

the second granddaughter at the age of eight (two years younger than the age

at which she testified at trial) “play[ing] with play dough,” “dr[awing] in 

coloring books,” and “talk[ing] in [a] childlike way.”

To establish ineffective assistance of counsel, a defendant must 

establish “that counsel’s performance was deficient, falling below an objective 

standard of reasonableness under prevailing professional norms” and “that, 

absent [the claimed] error [by counsel], it is reasonably probable that the 

verdict would have been more favorable to [the defendant].” (People v. 

Hawkins (1995) 10 Cal.4th 920, 940.) “If the record does not shed light on 

why counsel acted or failed to act in the challenged manner, we must reject 

the claim on appeal unless counsel was asked for and failed to provide a 

satisfactory explanation, or there simply can be no satisfactory explanation.” 

(People v. Scott (1997) 15 Cal.4th 1188, 1212.)

Here, the record sheds no light as to why Carmona’s trial counsel did 

not object or request a limiting instruction with respect to the challenged outof-court statements or as to whether an explanation for not objecting was 

sought or received from trial counsel. However, on the record presented here, 

we need not speculate as to why he acted or failed to act as he did, nor need 

we consider whether any of various explanations on which we might
15

speculate should be deemed satisfactory or unsatisfactory, because we 

conclude it is not reasonably probable that the verdict would have been more 

favorable to Carmona had the challenged out-of-court statements not been 

used. Regardless of any conclusions the jury might have drawn from the 

challenged out-of-court statements, the fact remains that jurors observed four 

witnesses (representing two generations of the Carmona family) testify under 

oath to having repeatedly endured pain, discomfort, and feelings of 

helplessness as children due to numerous instances of molestation at the 

hand of their grandfather/father/uncle over multiple periods of time spanning 

decades. In addition, jurors heard testimony generally supportive of the 

alleged victims’ accounts from 12 more witnesses. No family member or any

other witness testified on behalf of Carmona. These circumstances—with or 

without the challenged out-of-court statements—furnished the jury a more 

than sufficiently powerful basis on which to return verdicts of guilty on all 

counts. 

For the reasons stated, we decline Carmona’s invitation to reverse his 

conviction on evidentiary grounds. Ineffective assistance of counsel has not 

been established. If it had been established, it would be harmless. (See 

People v. Doolin (2009) 45 Cal.4th 390, 439 [“even if we were to assume 

evidentiary error, any error would be harmless” as “[t]here was 

overwhelming evidence of defendant’s guilt”]; People v. Watson (1956) 46 

Cal.2d 818, 836 (Watson).) Hence, in our view “ ‘[N]o reason appears why we 

should not apply the established rule[] . . . that issues not raised in the trial 

court cannot be raised for the first time on appeal.’ ” (Johnson v. Greenelsh

(2009) 47 Cal.4th 598, 603.)
16

B. Sentencing

Turning to the topic of Carmona’s sentence, we begin by noting that the 

discretion accorded to trial judges in sentencing is much more circumscribed 

today than it was on the date that the trial judge imposed sentence on 

Carmona (November 29, 2021). (See generally People v. Lopez (2022) 

78 Cal.App.5th 459, 464–465 (Lopez) [discussing amendments to sentencing 

laws occasioned by enactment of Sen. Bill No. 567].) Whereas Penal Code 

section 1170, subdivision (b), in effect on November 29, 2021 provided that:

“When 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.” 

Penal Code section 1170, subdivision (b)(1), effective as of January 1, 2022 

provides that:

“When a judgment of imprisonment is to be imposed and 

the statute specifies three possible terms, the court shall, in 

its sound discretion, order imposition of a sentence not to 

exceed the middle term, except as otherwise provided in 

paragraph (2).”

As the parties have acknowledged, this change applies retroactively to 

all cases that were not yet final as of January 1, 2022. (See Lopez, supra, 78 

Cal.App.5th at p. 465; see also People v. Conley (2016) 63 Cal.4th 646, 656 

[“new laws that reduce the punishment for a crime are presumptively to be 

applied to defendants whose judgments are not yet final”].) Of course, the 

existence of this appeal means that this case is not yet final. Hence, as to 

each count, Carmona’s sentence may not “exceed the middle term, except as 

otherwise provided in paragraph 2” of section 1170, subdivision (b). (Pen. 

Code, § 1170(b)(1).)
17

Paragraph 2 of section 1170, subdivision (b) provides that, in a jury 

trial: 

“The court may impose a sentence exceeding the middle 

term only when [1] there are circumstances in aggravation 

of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and [2] the facts 

underlying those circumstances [a] have been stipulated to 

by the defendant, or [b] have been found true beyond a 

reasonable doubt at trial by the jury.”

(Pen. Code, § 1170, subd. (b)(2) (italics added).) 

Here, Carmona did not stipulate to, and the jury did not find, any 

circumstances in aggravation, and the trial court did not articulate any such 

circumstances in imposing sentence; yet the court imposed the upper (rather 

than the middle) term as to count 4. In other words, the trial court did not 

apply section 1170, subdivision (b) as amended (the new version of the 

sentencing law). Thus we must determine whether prejudice resulted from

the fact that the trial court did not apply the new version of the sentencing 

law. (See Lopez, supra, 78 Cal.App.5th at pp. 465–467; Watson, supra,

46 Cal.2d at p. 836.)

In evaluating prejudice arising from a trial court’s having not applied

Penal Code section 1170, subdivision (b) as amended, the courts of appeal

have adopted a variety of different methodologies10 that our Supreme Court, 

10 See, e.g., People v. Flores (2022) 75 Cal.App.5th 495, 500–501; Lopez, 

supra, 78 Cal.App.5th at pp. 465–466; People v. Wandrey (2022) 80 

Cal.App.5th 962, 981-982, review granted Sept. 28, 2022, S275942; People v. 

Zabelle (2022) 80 Cal.App.5th 1098, 1110–1111; People v. Dunn (2022) 81 

Cal.App.5th 394, 405, review granted Oct. 12, 2022, S275655 (Dunn); People 

v. Flowers (2022) 81 Cal.App.5th 680, 686, review granted Oct. 12, 2022, 

S276237; People v. Lewis (2023) 88 Cal.App.5th 1125, review granted May 17, 

2023, S279147; People v. Falcon (2023) 92 Cal.App.5th 911, 918–921, 923–

952 (Falcon) [discussing various courts’ approaches].
18

“[h]aving granted review in People v. Lynch (May 27, 2022, C094174) 

(nonpub. opn.), review granted August 10, 2022, S274942, . . . is now poised 

to resolve.” (See Falcon, supra, 92 Cal.App.5th at p. 920.) Pending Supreme 

Court resolution of this split, we will continue to apply the two-part test that 

this court articulated in Lopez, supra:

“[U]nder the new version of the triad system set forth in 

section 1170, the initial relevant question for purposes of 

determining whether prejudice resulted from failure to 

apply the new version of the sentencing law is whether the 

reviewing court can conclude beyond reasonable doubt that 

a jury would have found true beyond a reasonable doubt all 

of the aggravating factors on which the trial court relied in 

exercising its discretion to select the upper term. If the 

answer to this question is ‘yes,’ then the defendant has not 

suffered prejudice from the court’s reliance on factors not 

found true by a jury in selecting the upper term. However, 

if the answer to the question is ‘no,’ we then consider the 

second question, which is whether a reviewing court can be 

certain, to the degree required by People v. Watson (1956) 

46 Cal.2d 818, 836 . . . , 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, supra, 78 Cal.App.5th at p. 468, fn. 11 (original italics deleted and 

additional italics and underlining added); see id. at pp. 465–468.)

As can be seen in the language to which we have added italics, in order

for a reviewing court to apply the Lopez methodology, the trial court must 

have specified in the record “all of the aggravating factors on which the trial 

court relied in exercising its discretion to select the upper term.” Yet, in this 

case, the trial court did not specify in the record any of the aggravating 
19

factors on which it relied. Instead, it merely stated that it had “[c]onsidered 

the longevity of the offenses, considered the circumstances of the offense . . . ,

[and] considered the individual rules under . . . rule [4.421, subdivision (a),” 

and “f[ou]nd that the upper term is appropriate”—without specifying the 

conclusions (if any) it had drawn from those circumstances or those rules that 

prompted it to “find . . . the upper term . . . appropriate.” Thus we conclude 

that resentencing is necessary to ensure that Carmona’s sentence complies 

with section 1170, subdivision (b) in its current iteration. Further, pursuant 

to the full resentencing rule (see People v. Buycks (2018) 5 Cal.5th 857, 893), 

that the trial court must reconsider the entire sentence—not just the 

sentence as to count 4.

III.

Disposition

The conviction is affirmed, the sentence is vacated, and the matter is 

remanded to the trial court for resentencing consistent with this opinion. 

Following resentencing, the trial court shall prepare an amended abstract of 

judgment and forward a copy of the amended abstract to the Department of 

Corrections and Rehabilitation. In all other respects, the judgment is 

affirmed.

KELETY, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.