Filed 6/18/24 P. v. Quillope CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BERNARDO SANTOS QUILLOPE,

Defendant and Appellant.

 D081306

 (Super. Ct. No. SCE396367)

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

Frank L. Birchak, Judge. Affirmed.

Patrick M. Ford, 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, 

A. Natasha Cortina and Stephanie A. Mitchell, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

A jury found Bernardo Santos Quillope guilty of forcible rape (Pen. 

Code,1 § 261, subd. (a)(2); count 1); forcible sodomy (§ 286, subd. (c)(2)(A); 

count 2); forcible oral copulation (§ 287, subd. (c)(2)(A); count 3); forcible 

sexual penetration (§ 289, subd. (a)(1)(A); count 4); inflicting corporal injury 

on a spouse/cohabitant (§ 273.5, subd. (a); count 5); and false imprisonment 

by violence, menace, fraud, or deceit (§§ 236, 237, subd. (a); count 6). 

Quillope admitted a prior serious felony (§ 667, subd. (a)(1)), a prior strike 

(§§ 667, subds. (b)–(i), 1170.12), and a prior conviction for inflicting corporal 

injury on a spouse/cohabitant (§ 273.5, subd. (f)(1)). The trial court sentenced 

Quillope to a 50-year prison term. 

Quillope contends that the trial court erred in admitting evidence of a 

prior sexual assault against a former girlfriend. He further argues that the 

trial court made several errors at sentencing, namely (1) denying his motion 

to strike his prior strike; (2) failing to consider a lower term sentence based 

on a head injury Quillope sustained as a youth; and (3) rejecting pleas for 

leniency by defense counsel and the victim after Quillope made comments at

the sentencing hearing that the trial court described as showing Quillope’s 

lack of remorse.

We conclude that Quillope’s arguments lack merit, and we accordingly 

affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Quillope and C.J. began dating in February 2019, and in November 

2019 they were living together. C.J. told a law enforcement officer and a 

forensic nurse examiner that, on November 17, 2019, Quillope sexually 

1 Unless otherwise indicated, all further statutory references are to the 

Penal Code.
3

assaulted her and punched her in the head after she told him that she was 

leaving him. Specifically, C.J. reported that, against her will, Quillope 

trapped her in the bathroom where he digitally penetrated her, penetrated 

her vagina and anus with his penis, and forced her to orally copulate him. 

Quillope then punched C.J. in the head several times before allowing her to 

leave the apartment. 

Quillope was charged with forcible rape (§ 261, subd. (a)(2); count 1);

forcible sodomy (§ 286, subd. (c)(2)(A); count 2); forcible oral copulation 

(§ 287, subd. (c)(2)(A); count 3); forcible sexual penetration (§ 289, 

subd. (a)(1)(A); count 4); inflicting corporal injury on a spouse/cohabitant, 

with a previous conviction of that offense in the last seven years (§ 273.5, 

subds. (a), (f)(1); count 5); and false imprisonment by violence, menace, fraud, 

or deceit (§§ 236, 237, subd. (a); count 6).

C.J. testified at trial that she had recently married Quillope, and 

claimed that, because of drug and alcohol use, she did not remember 

anything about the incident or anything that occurred between 

September 2019 and May or June 2020. The trial court found that C.J.’s lack 

of memory was not credible, and it therefore allowed the admission of prior 

statements by C.J. describing Quillope’s assault on her.

The trial court also allowed the prosecutor to present the testimony of 

Quillope’s former girlfriend (Former Girlfriend) about incidents in 2011 and 

2014, during which Quillope used violence against her. During the 2011 

incident, Quillope sexually penetrated Former Girlfriend’s vagina and anus 

without her consent and forced her to orally copulate him. During the 2014 

incident, Quillope choked Former Girlfriend and caused an injury to her 

forehead because he suspected her of seeing another man. The jury was 

informed that, based on the two incidents, Quillope pled guilty in 
4

February 2011 and in September 2014 to inflicting corporal injury on a 

cohabitant (§ 273.5, subd. (a)).

The jury found Quillope guilty on all the counts as charged. In a 

subsequent proceeding before the trial court, Quillope admitted a prior 

serious felony (§ 667, subd. (a)(1)), a prior strike (§§ 667, subds. (b)–(i), 

1170.12), and a prior conviction for inflicting corporal injury on a 

spouse/cohabitant (§ 273.5, subd. (f)(1)). At that hearing, the trial court also 

found beyond a reasonable doubt the presence of several aggravating factors. 

(Cal. Rules of Court, rule 4.421.)

At the sentencing hearing on October 21, 2022, the trial court denied 

Quillope’s request to strike his prior strike but it did strike the serious prior 

felony allegation. The trial court sentenced Quillope to a 50-year prison 

term. Specifically, it selected count 5 as the principal term and imposed an 

upper term sentence, which it doubled based on Quillope’s prior strike. The 

trial court imposed a sentence of double the middle term on each of the 

remaining counts, except count 4, for which it doubled a sentence of one-third 

the middle term. The sentences were ordered to run consecutively, except for 

count 6 which was ordered to run concurrently. 

II.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of

Quillope’s 2011 Sexual Assault on Former Girlfriend

We first address Quillope’s contention that the trial court erred in 

admitting evidence of his 2011 sexual assault on Former Girlfriend. 

Under Evidence Code section 1101, subdivision (a), unless an exception 

applies, evidence of a person’s character, including evidence of specific 

instances of past conduct, is inadmissible when offered to prove the person’s 

conduct on a specified occasion. One exception is set forth in Evidence Code 
5

section 1109, subdivision (a)(1), which provides that, except in certain 

situations that are not relevant here, “in a criminal action in which the 

defendant is accused of an offense involving domestic violence, evidence of the 

defendant’s commission of other domestic violence is not made inadmissible 

by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant 

to [Evidence Code] Section 352.” A second exception to Evidence Code section 

1101 is set forth in Evidence Code section 1108, subdivision (a), which 

provides that “[i]n a criminal action in which the defendant is accused of a 

sexual offense, evidence of the defendant’s commission of another sexual 

offense or offenses is not made inadmissible by [Evidence Code] Section 1101, 

if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”

During motions in limine the People moved pursuant to Evidence Code 

sections 1108 and 1109 to introduce evidence of three incidents involving 

Former Girlfriend: (1) the 2011 incident in which Quillope forced her to 

engage in anal and vaginal sex and oral copulation; (2) the 2014 incident in 

which Quillope physically attacked her; and (3) another incident in 2014 in 

which Quillope violated a criminal protective order. Defense counsel opposed 

the admission of each item. The trial court ruled that it would admit 

evidence of the 2011 sexual assault and the 2014 physical attack, but not the 

2014 violation of the criminal protective order. 

Quillope challenges the trial court’s ruling admitting evidence of the 

2011 sexual assault. He contends that “Evidence Code section 1109 . . . 

subdivision (d) provides that prior acts occurring more than five years earlier 

than the charged incident are presumed to be remote, and the trial court 

must conduct a[n Evidence Code] section 352 hearing where it ‘shall’ consider 

remoteness.” Because the 2011 sexual assault occurred more than five years 

before the 2019 incident charged in this case, he argues that the trial court 
6

“fail[ed] to comply with the requirements of [Evidence Code] section 1109”

because it did not hold a hearing to consider remoteness.

To support his argument, Quillope specifically refers to 

subdivision (d)(3) of Evidence Code section 1109. Subdivision (d)(3) provides, 

“ ‘Domestic violence’ has the meaning set forth in Section 13700 of the Penal 

Code. Subject to a hearing conducted pursuant to [Evidence Code] Section 

352, which shall include consideration of any corroboration and remoteness in 

time, ‘domestic violence’ has the further meaning as set forth in Section 6211 

of the Family Code, if the act occurred no more than five years before the 

charged offense.” (Evid. Code, § 1109, subd. (d)(3), italics added.)

Quillope reads this provision to require a hearing on corroboration and 

remoteness in time for any prior act that occurred more than five years before 

the charged offense. However, that is simply not what the statute says. The 

plain words of the statute state that corroboration and remoteness in time

must be considered when the trial court decides whether to expand the 

definition of “domestic violence” to include that term as defined in Family 

Code section 6211.2 Further, the five-year period is relevant because the 

2 Penal Code section 13700, subdivision (b) states, “ ‘Domestic violence’ 

means abuse committed against an adult or a minor who is a spouse, former 

spouse, cohabitant, former cohabitant, or person with whom the suspect has 

had a child or is having or has had a dating or engagement relationship.” 

Family Code section 6211 defines “ ‘Domestic violence’ ” as “abuse 

perpetrated against any of the following persons: [¶] (a) A spouse or former 

spouse. [¶] (b) A cohabitant or former cohabitant, as defined in [Family Code] 

Section 6209. [¶] (c) A person with whom the respondent is having or has had 

a dating or engagement relationship. [¶] (d) A person with whom the 

respondent has had a child, where the presumption applies that the male 

parent is the father of the child of the female parent under the Uniform 

Parentage Act (Part 3 (commencing with [Family Code] Section 7600) of 

Division 12). [¶] (e) A child of a party or a child who is the subject of an action 

under the Uniform Parentage Act, where the presumption applies that the 
7

expanded definition in Family Code section 6211 may be applied only for acts 

that occur within five years of the charged offense. (See Mani, supra, 

74 Cal.App.5th at p. 360 [discussing the meaning of the “plain and 

unambiguous language” of the provision at issue here].) Thus, contrary to 

Quillope’s description, Evidence Code section 1109, subdivision (d)(3) neither 

creates a presumption of remoteness for prior acts occurring more than five 

years prior to the charged offense, nor does it require that the trial court hold 

a hearing to specifically consider remoteness before deciding whether to 

admit such evidence.

To be sure, Evidence Code section 1109 does require the trial court to 

consider the applicability of Evidence Code section 352 when deciding 

whether to admit prior acts of domestic violence. (Evid. Code, § 1109, 

subd. (a) [“evidence of the defendant’s commission of other domestic violence 

is not made inadmissible by [Evidence Code] Section 1101 if the evidence is 

not inadmissible pursuant to [Evidence Code] Section 352” (italics added)].)

Evidence Code section 352 provides, “The court in its discretion may exclude 

male parent is the father of the child to be protected. [¶] (f) Any other person 

related by consanguinity or affinity within the second degree.” (Fam. Code, 

§ 6211.) “[T]he Family Code definition of domestic violence is broader than 

the Penal Code definition.” (People v. Mani (2022) 74 Cal.App.5th 343, 363

(Mani).) One significant difference between the two definitions appears in 

subdivision (f) of Family Code section 6211, which encompasses abuse 

against a wide range of relatives. Further, Family Code section 6211 

incorporates a more expansive definition of “abuse.” (Mani, at pp. 360–361.) 

In this case, the more restricted definition of “domestic violence” in Penal 

Code section 13700 covered the 2011 sexual assault on Former Girlfriend 

because she was a “person with whom the suspect has . . . had a dating . . . 

relationship,” and sexual assault is clearly “abuse” within the meaning of 

Penal Code section 13700. (Pen. Code, § 13700, subds. (a), (b).)
8

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.” Here, the trial court expressly conducted an analysis 

under Evidence Code section 352, concluding that one of the 2014 incidents

should be excluded from evidence because it lacked sufficient probative value.

But there is no special requirement that the trial court specifically consider 

remoteness during its Evidence Code section 352 inquiry for any prior act 

occurring more than five years before the charged offense.3 

The relevant time bar set forth in Evidence Code section 1109 is not the 

five-year period that Quillope incorrectly reads into subdivision (d)(3) but 

rather the 10-year period set forth in subdivision (e). That provision states 

that “[e]vidence of acts occurring more than 10 years before the charged 

offense is inadmissible under this section, unless the court determines that 

the admission of this evidence is in the interest of justice.” (Evid. Code, 

§ 1109, subd. (e).) Here, the 2011 sexual assault was well within 10 years of 

3 Premised on his misreading of Evidence Code section 1109, 

subdivision (d)(3), Quillope contends that the trial court violated his right to 

due process because it failed to “carefully employ the [Evidence Code] section 

352 safeguard” when it failed to conduct a purportedly statutorily required 

remoteness inquiry as part of its analysis under Evidence Code section 352. 

For that argument, Quillope relies on People v. Falsetta (1999) 21 Cal.4th 

903, 917, in which our Supreme Court held that Evidence Code section 1108 

was saved from a due process challenge because of “the trial court’s discretion 

to exclude propensity evidence under [Evidence Code] section 352.” The 

argument fails because, as we have explained, Evidence Code section 1109, 

subdivision (d)(3) does not require a trial court to specifically consider 

remoteness as part of an analysis under Evidence Code section 352 for prior 

acts occurring more than five years before the charged offense.
9

the 2019 offense charged in this case. It therefore did not trigger the ten-year 

time bar. 

We accordingly find no merit to Quillope’s contention that the trial 

court erred in admitting evidence of his 2011 sexual assault on Former 

Girlfriend.

B. The Trial Court Did Not Abuse Its Discretion in Denying Quillope’s 

Request to Strike His Prior Strike

We next consider Quillope’s contention that the trial court erred in 

denying his motion to strike his prior strike. 

1. Applicable Legal Standards

In applying the “Three Strikes” law, a trial court may strike a prior 

strike “in furtherance of justice.” (§ 1385, subd. (a); see also People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530.) In deciding 

whether to do so, a court considers “whether, in light of the nature and 

circumstances of his present felonies and prior serious and/or violent felony 

convictions, and the particulars of his background, character, and prospects, 

the defendant may be deemed outside the scheme’s spirit, in whole or in part, 

and hence should be treated as though he had not previously been convicted 

of one or more serious and/or violent felonies.” (People v. Williams (1998) 

17 Cal.4th 148, 161.) “[T]he law creates a strong presumption that any 

sentence that conforms to [its] sentencing norms is both rational and proper.”

(People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony ).)

We apply an abuse of discretion standard when reviewing the trial 

court’s refusal to strike a prior strike. (Carmony, supra, 33 Cal.4th at p. 375.) 

“[A] trial court will only abuse its discretion in failing to strike a prior felony 

conviction allegation in limited circumstances. For example, an abuse of 

discretion occurs where the trial court was not ‘aware of its discretion’ to 

dismiss . . . or where the court considered impermissible factors in declining 
10

to dismiss,” or where “ ‘the sentencing norms [established by the Three 

Strikes law may, as a matter of law,] produce[ ] an “arbitrary, capricious or 

patently absurd” result’ under the specific facts of a particular case. . . . [¶] 

But ‘[i]t is not enough to show that reasonable people might disagree about 

whether to strike one or more’ prior conviction allegations.” (Id. at p. 378, 

citations omitted.) “[A] trial court does not abuse its discretion unless its 

decision is so irrational or arbitrary that no reasonable person could agree 

with it.” (Id. at p. 377.)

2. Relevant Background

Quillope’s prior strike was from a 1997 conviction for assault with a 

firearm. Quillope’s written motion to strike that prior strike set forth three 

grounds for an exercise of discretion in his favor: (1) the strike was remote in 

time because the conviction was from 1997; (2) Quillope’s criminal history 

was the result of long-time drug and alcohol use, including his use of drugs 

during the acts against C.J. that gave rise to the instant prosecution; and 

(3) Quillope had completed cognitive behavioral therapy classes while in jail, 

showing a willingness to rehabilitate. At the sentencing hearing, defense

counsel focused primarily on one of those arguments, namely that the strike 

was remote in time. 

The People opposed the motion to strike the prior strike, relying to a 

large extent on Quillope’s subsequent criminal history. As the People 

summarize Quillope’s criminal history in the respondent’s brief: “Over the 

next two decades [after the 1997 strike], [Quillope] was convicted of four 

felonies and five misdemeanors. He served time in custody, and then 

repeatedly violated the conditions of his parole and [postrelease community 

supervision] release. He was placed on summary and formal probation 

multiple times and violated the terms of his probation over and over. . . . 
11

[Quillope’s] crimes did not decrease in seriousness as he got older. 

[Quillope’s] physical and sexual abuse of [Former Girlfriend] was extremely 

violent. He then violated criminal protective orders that were in place to 

protect her.” 

The trial court denied the motion to strike the prior strike, explaining 

that “based on his ongoing criminal conduct,” Quillope “absolutely does” 

“fall[ ] within the spirit of the strike law.” The trial court observed that there 

was a “very limited period of time in the last 25 years where [Quillope] was 

not either in custody or under supervision.” 

At the sentencing hearing, the trial court had before it a letter written 

by Quillope’s parents. The letter stated, “During his youth, [Quillope] was a 

newspaper boy riding on a motor bike[.] [O]n his route, he got hit by a car 

and obtained a major head injury (subdural hematoma). Surgery 

(Craniotomy) was done to save his life. With God’s blessings he recovered but 

might have mildly affected his cognitive functions.” During his comments at 

the sentencing hearing, Quillope’s father briefly reminded the trial court 

about “what happened” when Quillope was a “newspaper boy.” Defense 

counsel did not attempt to submit any further information about the head 

injury or any enduring impact it had on Quillope. Defense counsel also did 

not mention the head injury in any respect during the sentencing hearing.

The trial court observed at the sentencing hearing that section 1385

was recently amended to specify that a sentencing enhancement should be 

dismissed in certain circumstances in the furtherance of justice. Specifically, 

effective January 1, 2022, Senate Bill No. 81 (2021–2022 Reg. Sess.) amended 

section 1385 to include subdivision (c). (Stats. 2021, ch. 721 § 1.) Under

section 1385, subdivision (c)(1), “the court shall dismiss an enhancement if it 

is in the furtherance of justice to do so, except if dismissal of that 
12

enhancement is prohibited by any initiative statute.” Under section 1385, 

subdivision (c)(2), in exercising its discretion, “the court shall consider and 

afford great weight to evidence offered by the defendant to prove that any of 

the mitigating circumstances in subparagraphs (A) to (I) are present. Proof 

of the presence of one or more of these circumstances weighs greatly in favor 

of dismissing the enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety.” As relevant here, one 

mitigating circumstance is that “[t]he current offense is connected to prior 

victimization or childhood trauma.” (Id. at subd. (c)(2)(E).) In imposing 

sentence on Quillope, the trial court noted that “we don’t have a lot of case 

law about how” the “factors listed in [subdivision] (c) of [section] 1385” 

“interplay with the strike laws.” Therefore, out of an abundance of caution, 

the trial court proceeded to consider the mitigating circumstances identified

in section 1385, subdivision (c)(2) in analyzing whether to dismiss Quillope’s 

prior strike.

Referring to the head injury described by Quillope’s parents, the trial 

court noted that “there is a history of childhood trauma based on the 

statements of his parents and the description of the injury.” The trial court 

then went on to explain, “They have described something that likely caused 

some form of traumatic brain injury, which the court’s trying to balance how 

much it can use its own experiences and training separate from what was 

presented in this case. [¶] In some ways the court doesn’t feel it can

necessarily draw on trainings it has received through the Judicial Council 

about the impacts of traumatic brain injury. Even if it could, the court’s view 

is that circumstance likely affected Mr. Quillope’s ability to control his 

impulses, which would be related to this offense.” However, the trial court 
13

explained that “even considering” that circumstance, “the court still would 

not strike the strike prior.”

3. Quillope Has Not Established an Abuse of Discretion

Quillope argues that the trial court abused its discretion in ruling on 

the motion to strike the prior strike because it did not adequately consider 

his head injury. 

Quillope does not argue that the mitigating circumstances in 

section 1385, subdivision (c)(2), such as whether “[t]he current offense is 

connected to prior victimization or childhood trauma” (id. at subd. (c)(2)(E)),

govern the factors that a trial court must consider in deciding whether to 

strike a prior strike.4 Indeed, numerous courts have rejected such an 

argument. (People v. Burke (2023) 89 Cal.App.5th 237, 244 [the provisions of 

§ 1385, subd. (c) did not apply to the Three Strikes law because “[t]he plain 

language of subdivision (c) of section 1385 applies only to an ‘enhancement,’ 

and the Three Strikes law is not an enhancement”]; People v. Tilley (2023) 

92 Cal.App.5th 772, 776, fn. 2 (Tilley) [following Burke]; People v. Olay (2023) 

98 Cal.App.5th 60, 69 [“section 1385, subdivision (c) does not apply to the 

Three Strikes law”]; People v. Dain (2024) 99 Cal.App.5th 399, 410–411

[following Burke], review granted May 29, 2024, S283924.) Instead, Quillope

argues more generally that the trial court was required to consider his head 

injury because “the question for the trial court was whether [Quillope] fell 

within the spirit of the [T]hree [S]trikes law, and in making that 

determination the court should consider the defendant’s background.” 

4 We note that the People dispute that “brain injury sustained as a result 

of being hit by a car is ‘childhood trauma’ as defined in section 1385, 

subdivision (c)(6)(A).” We need not, and do not, address that issue. 
14

As Quillope characterizes the trial court’s comments at the sentencing 

hearing, the trial court made a “concession that it had no experience in 

evaluating the impact of a serious brain injury.” Quillope therefore seeks a 

remand to the trial court “to allow the court to fully understand the impact of 

such an injury as part of his background when considering” the motion strike 

the prior strike. 

Without even addressing whether there might be any merit to 

Quillope’s contention that the trial court was required to consider Quillope’s

head injury in deciding whether to strike the prior strike, we conclude that 

the argument has been forfeited because it was not developed at the 

sentencing hearing. As we have explained, the trial court specifically did

consider all of the information that was presented on the subject of Quillope’s 

head injury when deciding whether to strike the prior strike, but that 

information was limited to the short statement in the letter from Quillope’s 

parents. Apart from that letter, Quillope failed to provide the trial court with 

any evidence or argument on the issue of his head injury. It is the 

defendant’s burden to provide the trial court with evidence to support a 

motion to strike a prior strike. (People v. Lee (2008) 161 Cal.App.4th 

124, 129.) “[U]nless the defendant presents evidence in support of his 

request, he forfeits his right to complain that the court’s denial of Romero

relief did not take into account that evidence.” (Id. at p. 131.) Thus, Quillope 

“may not now complain that the trial court abused its discretion because it 

did not consider evidence that was never presented” (id. at p. 130), and he 

may not seek a remand to present evidence that he failed to present in the 

first instance at the sentencing hearing.

Based on the information presented at the sentencing hearing, the trial 

court was well within its discretion to deny the motion to strike the prior 
15

strike, especially in light of Quillope’s criminal history since incurring the 

strike in 1997. “[T]he circumstances must be ‘extraordinary . . . by which a 

career criminal can be deemed to fall outside the spirit of the very scheme 

within which he squarely falls once he commits a strike as part of a long and 

continuous criminal record, the continuation of which the law was meant to 

attack.’ ” (Carmony, supra, 33 Cal.4th at p. 378.) Due to his continuous 

history of criminal conduct, Quillope “appears to be ‘an exemplar of the 

“revolving door” career criminal to whom the Three Strikes law is 

addressed.’ ” (Carmony, at p. 379.) Quillope thus has not established that 

the trial court abused its discretion in denying the motion to strike the prior 

strike.

C. Quillope Forfeited His Argument That the Trial Court Should Have 

Imposed a Lower Term Sentence Based on His Head Injury

Quillope next contends that, based on his head injury, the trial court 

was required to consider a lower term sentence.

Quillope’s argument is based on amendments to section 1170, 

subdivision (b), which became effective on January 1, 2022. (Stats. 2021, 

ch. 695, § 5.3.) Based on those amendments, a trial court may impose no 

greater than a middle term sentence unless it relies on aggravating factors

that (with the exception of prior convictions in a certified record) have been 

found true beyond a reasonable doubt or stipulated to by the defendant. 

(§ 1170, subd. (b)(1)–(3).) As especially relevant here, newly enacted 

subdivision (b)(6) of section 1170 provides, in relevant part, that “unless the 

court finds that the aggravating circumstances outweigh the mitigating 

circumstances that imposition of the lower term would be contrary to the 

interests of justice, the court shall order imposition of the lower term if any of 

the following was a contributing factor in the commission of the offense:

[¶] (A) The person has experienced psychological, physical, or childhood 
16

trauma, including, but not limited to, abuse, neglect, exploitation, or sexual 

violence.” (§ 1170, subd. (b)(6), italics added.) 

Quillope contends that his head injury constitutes “childhood trauma” 

within the meaning of section 1170, subdivision (b)(6)(A), and that the trial 

court was therefore required to impose a lower term sentence unless it 

determined that the interests of justice required otherwise. Quillope 

contends that the trial court erred in not applying section 1170, 

subdivision (b)(6)(A) in its sentencing analysis, and that “the case should be 

remanded to allow the presentation of evidence regarding [Quillope’s]

traumatic injury, and how that would impact the sentencing options.” On 

remand, according to Quillope, the trial court should take the head injury 

into account to consider both “its discretion to impose the low term, and . . . 

the impact of [his] injuries on the consecutive sentences.”5 (Italics added.)

We reject Quillope’s argument because it has been forfeited. “In 

general, the forfeiture rule applies in the context of sentencing as in other 

areas of criminal law. As a general rule neither party may initiate on appeal 

a claim that the trial court failed to make or articulate a “ ‘discretionary 

sentencing choice[ ].” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 881.) “[T]he 

5 The remand that Quillope seeks encompasses both the trial court’s 

discretion to impose a lower term sentence and its discretion to run the terms 

concurrently or consecutively. We note, however, that Quillope does not

explain how his argument based on section 1170, subdivision (b)(6)(A) relates 

to the trial court’s exercise of its discretion to impose concurrent or 

consecutive sentences. Absent an express statutory provision to the contrary, 

section 669 gives the trial court the discretion to impose either concurrent or 

consecutive terms for multiple convictions, and California Rules of Court, 

rule 4.425 provides a nonexhaustive list of factors that the trial court may 

consider in determining whether to impose consecutive or concurrent 

sentences. Quillope does not discuss that authority.
17

sentencing hearing is, in general, the proper time for a defendant to assert all 

available procedural and factual contentions relating to the trial court’s 

sentencing choices.” (People v. Trujillo (2015) 60 Cal.4th 850, 861.) 

“Although the court is required to impose sentence in a lawful manner, 

counsel is charged with understanding, advocating, and clarifying 

permissible sentencing choices at the hearing.” (People v. Scott (1994) 

9 Cal.4th 331, 353 (Scott).) “[C]omplaints about the manner in which the 

trial court exercises its sentencing discretion and articulates its supporting 

reasons cannot be raised for the first time on appeal.” (Id. at p. 356.)

Here, Quillope did not argue in the trial court that he should receive a 

lower term sentence based on section 1170, subdivision (b)(6). He presented 

no evidence about the head injury referred to in his parents’ letter, and he 

made no attempt to establish that the head injury constituted “childhood 

trauma” within the meaning of section 1170, subdivision (b)(6)(A) or that the 

head injury should impact the decision whether to impose consecutive 

sentences. Accordingly, Quillope has forfeited his appellate contention that 

the trial court erred in not considering whether it should impose a lower term 

sentence, or a concurrent sentence, based on the head injury. (See Tilley, 

supra, 92 Cal.App.5th at p. 778 [defendant forfeited his claim that the trial 

court should have selected the lower term based on § 1170, subd. (b)(6) 

because he did not raise it below].)

D. Quillope Forfeited His Argument That the Trial Court Erred in 

Considering His Statements at the Sentencing Hearing, Which the Trial 

Court Described as Demonstrating a Lack of Remorse

Finally, Quillope argues that the trial court erred because it took into 

account a statement he made at the sentencing hearing, which the trial court 

described as “demonstrat[ing] a complete lack of remorse” and “complete . . . 

unwillingness to accept any sort of fault.” 
18

1. Relevant Background

At the beginning of the sentencing hearing, the trial court set forth a 

tentative sentence of 50 years (which it ended up adopting), including an 

upper term sentence on the principal count (count 5) and middle term 

sentences on counts 1, 2 and 3. Defense counsel then argued for a shorter 

sentence. Among other things, defense counsel argued, “So essentially we sit 

here before you, your Honor, and Mr. Quillope’s essentially begging for 

mercy. Since he’s been in custody, he’s done a lot. He’s done everything he 

could to try to better himself. He did all those classes, the cognitive 

behavior. . . . He’s done everything he could to try to better himself . . . so 

when he does get out he can be a proper husband to his wife [C.J.] and find 

himself not in these types of circumstances ever again. [¶] I think that shows 

something on his behalf, that hopefully he is changing, and I hope the court

would consider that in determining whatever your final decision is as far as 

his sentence.” 

C.J. spoke at the sentencing hearing, stating that she was “asking the

court to have leniency on my husband.” She explained that “[b]eing in our

addiction is a struggle, which at this point in time in our lives we’re not there 

anymore,” and stated that she had “plans for [Quillope] when he comes 

home . . . to better himself and better us in general . . . whatever it takes just 

to make our marriage work.” 

Quillope also chose to address the trial court. Quillope made the 

following statement, in which he both blamed C.J. for lying about the 

incident and appeared to deny the 2011 sexual assault on Former Girlfriend, 

calling it a “fallacy”:

“Your Honor, I love my wife. My graces were extended 

from the very beginning and continue on not only with this 

situation, and I’ve always done my best to provide for everything, 
19

be it a place to live, a job opportunity, phone, food, clothing, 

conveniences, everything, all to make her happy.

“And that same intention, it went with our intimacy too. It 

was never selfish or forceful. It was consensual to nurture love 

and maintain peace and harmony in our home.

“I’ve done a thorough examination of my conscience, and as 

a man of Christian faith I seek that feeling of conviction that 

comes with any wrongdoing, but it eludes me. I find it hard to 

feel guilty for any type of loving my wife, and I know for a fact I 

did not do all those ugly things.

“Whatever was said was greatly exaggerated or a straightout lie by a very angry and evil woman. Not only was she jealous 

of me communicating with my ex, she was aware of the fallacy 

that happened 11 years ago. She was also jealous of me and what 

I could provide, and all these strong feelings were enhanced not 

only by one drug but multiple mind-altering drugs. And, sadly, 

the truth did not prevail in this case. 

“Later, when I asked about what was said, her answer to 

me was, ‘I don’t want to talk about it. I’m not evil like that 

anymore.’ That is what I was dealing with at the time, a selfish 

and evil woman.

“Now, after all of this, my life’s been ruined. I’m exhausted. 

I feel uncertain. I feel lost. But with my faith I stay hopeful, and 

I will continue to do my best, as always, to love and to live, and 

on behalf of myself and my wife, I’m sorry for this disgraceful

situation.

“I humbly ask that the court see the injustice of this verdict 

and grant me leniency in this case. As husband and wife I 

believe we will do all that is necessary to change for the better 

and to prevent this from ever happening again.” 

In pronouncing sentence, the trial court referred to Quillope’s 

statement. It explained, “The court had considered after [defense counsel’s] 

arguments going with the low term on counts 2 and 3 and going with the 
20

mid-term on count 5 as opposed to what the tentative was. Then 

Mr. Quillope demonstrated a complete lack of remorse, complete lack of any 

acceptance of responsibility and continued attack on [C.J.’s] character. And 

even with [C.J.] requesting leniency, the court finds that counters some 

leniency the court was considering, some additional leniency the court was

considering granting based on that denial and complete lack of remorse, 

complete, even after a lengthy jury trial, unwillingness to accept any sort of 

fault.” In addition, the trial court stated, “So you understand the math, Mr. 

Quillope, that was 10 years I was going to reduce your sentence by before you 

spoke. I want you to understand that. That’s not for you to comment 

against, that was something [defense counsel] had made some fairly 

persuasive arguments that you completely undercut. [¶] So the court is going 

to impose the tentative.” 

2. Quillope’s Contention That the Trial Court Erred Is Forfeited

Quillope contends that the trial court erred in relying, at sentencing, on 

its conclusion that Quillope had shown “a complete lack of remorse.”

The applicable line of case law holds that “[l]ack of remorse can be used 

to aggravate a sentence ‘ “unless the defendant has denied guilt and the 

evidence of guilt is conflicting.” ’ ” (People v. Weber (2013) 217 Cal.App.4th 

1041, 1064, fn. 7; see also People v. Key (1984) 153 Cal.App.3d 888, 900–901

(Key).)6 Quillope argues that the trial court erred under the applicable law 

6 A separate line of case law, which Quillope identifies, applies 

specifically in death penalty cases and delineates the circumstances in which 

a prosecutor may argue to the jury for a verdict of death based on the 

defendant’s lack of remorse. (See, e.g., People v. Coleman (1969) 71 Cal.2d 

1159, 1168–1169 [“any argument that failure to confess should be deemed 

evidence of lack of remorse is not permissible”]; People v. Bemore (2000) 

22 Cal.4th 809, 854–855 [no impropriety occurred when “the prosecutor 

merely anticipated predictable defense argument urging sympathy for 
21

because it “essentially added 10 years to the sentence after emphasizing 

[Quillope’s] lack of remorse.” 

Quillope has forfeited the argument. To preserve the appellate 

challenge, defense counsel should have raised an objection, on legal grounds, 

when the trial court explained how it was using Quillope’s statement to deny 

the leniency requested by C.J. and defense counsel. (Scott, supra, 9 Cal.4th 

at p. 353 [the forfeiture rule announced in Scott applies “to claims involving 

the trial court’s failure to properly make or articulate its discretionary 

sentencing choices,” and “[i]ncluded in this category are cases in which the 

stated reasons allegedly do not apply to the particular case”].) Quillope may 

not raise the issue for the first time on appeal.

Moreover, even were we to consider Quillope’s argument, it lacks merit 

because it is based on case law that disapproves using lack of remorse as an 

aggravating factor. (Key, supra, 153 Cal.App.3d at p. 900 [discussing 

circumstance in which “lack of remorse is not a valid reason to aggravate a 

sentence”].) That is not what occurred here. The trial court was clear about 

the aggravating factor it was using to impose an upper term sentence on 

count 5, i.e., that “[t]he defendant’s prior convictions . . . are numerous or of 

increasing seriousness.” (Cal. Rules of Court, rule 4.421(b)(2).) At the 

sentencing hearing, instead of identifying Quillope’s lack of remorse to 

aggravate the tentative sentence, it relied on Quillope’s comments in deciding 

to reject defense counsel’s and C.J.’s requests that the court show leniency by

defendant and sought to negate its mitigating effect by highlighting 

defendant’s apparent lack of concern for the murder victim” and did not 

“suggest that the absence of remorse was an independent factor in 

aggravation”].)
22

departing from its tentative sentence.7 Quillope has identified no authority 

that would prevent the trial court from taking into account a defendant’s 

statements at a sentencing hearing in deciding whether to deviate from its 

tentative sentence by acceding to the pleas for leniency urged by defense 

counsel and the victim of the defendant’s crimes. 

DISPOSITION

The judgment is affirmed.

IRION, Acting P. J.

WE CONCUR:

DO, J.

CASTILLO, J.

7 Indeed, the trial court was plainly aware that it could not use lack of 

remorse as an aggravating factor because it specifically observed at a prior 

hearing that case law disapproves of using lack of remorse as an aggravating 

factor. Specifically, citing Key, supra, 153 Cal.App.3d at pages 900 to 901, 

the trial court commented to the prosecutor at the bench trial on the 

aggravating factors, “So as to the lack of remorse factor there is a case . . . 

and this is before the renumbering of the Rules of Court, but it discusses 

where there is a denial, lack of remorse is not a valid basis to aggravate a 

sentence, and it distinguishes between cases where there is an admission of 

guilt and admission of the conduct and lack of remorse. Are you aware of 

contrary case law or different argument?” The prosecutor replied, “I am not, 

your Honor, and so with that information, I appreciate the court bringing 

that to my attention, I would go ahead and not move forward on the lack of

remorse.”