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Filed 11/23/22 P. v. Huertablancas CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v. JOSE HUERTABLANCAS,

Defendant and Appellant. C095347 (Super. Ct. No. 20FE019499)

Defendant Jose Huertablancas agreed to ple a d guilty to two counts of committing
a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)

—
counts one & two ) 1 with a sentenc e to range between six and 10 years

. The trial court imposed an aggregate term of 10 years , includin g the upper term of eight years on count

one

. Defendant appeal ed , asserting the trial court improperly used aggravating factors that were speculative and not supported by substantial evidence

. After the parties ’ initial briefing was completed, we granted defendant’s request for supplemental briefing on the

1 Undesignated statutory references are to the Penal Code.2

application of Senate Bill No. 567 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 731 , § 1.3 ) (Senate Bill 567).
Defendant contends and the People concede that Senat e Bill 567 applies retroactively to this case and requires remand for resentencing under section 1170, subdivision (b). Because we agree, we will vacate defendant’s sentence and remand for resentencing. We otherwise affirm the judgment.
BACKGROUND
On Ju ly 23, 2021, defendant agreed to ple ad guilty to two counts of committing a lewd or lascivious act on a child under the age of 14 for a sentence ranging from six to 10
years. The People stated the factual basis for the plea to counts one and two , as fol lows: “Between the dates of August 1st, 2008, and September 30th, 2011, the defendant [,] who was the stepfather of [K.], who was the age of 10 to 13 years old during that time. He would approach [K.] while she was sleeping, and he would touch her vagina over her clothes, and he would do this one to three times a week during that entire period, and he did this with intent of arousing himself.” 2 On December 3, 2021, the trial court sentenced defendant to the upper term of eight years on count one and tw o years (one

- third of the midterm) consecutive on count

two , for a total aggregate term of 10 years

. As factors in aggravation, the trial court stated the crime involved great bodily harm ( r ule 4.421(a)(1) ) ; 3 the victim was particularly vulnerable ( r ule 4.421(a)( 3 ) ) ; the crime was committed in a sophisticated manner ( r ule 4.421(a)( 8 ) ) ; and defendant took advantage of a position of trust

. ( R ule 4.421(a)( 11 )

. )

2 Pursuant to California Rules of Court, rule 8.90(b)(4), (10), we refer to the victim
as “ K

. ”

3 All rule references are to the California Rules of Court.3

In mitigation, the trial court considered that de fendant had an insignificant record of criminal conduct ( r

ule 4.423( b)( 1 ) ) and had apologized to the victim

. ( R ule 4.423(c)

. )
The trial court also observed that the district attorney had charged 10 counts and could have charged more , because the offens es occurred several times a week over a period of approximately two to three year s

. The court further noted that d uring a pretext call, defendant indicated that he touched the victim’s legs twice but was trying to g e t to her vagina out of “ curiosity. ” The court called a stepfather’s curiosity about what an 11

- to 13

- year

- old girl’s vagina feels like “perverted” and “sick.” The court observed that the
traumatic aftereffects for the victim would continue indefinitely. Defendant filed a timely appeal of the sentence.
DISCUSSION In supplemental briefing, d efendant contends that Senate Bill 567 applies retroactively to this case and that none of the aggravating factors the trial court cited in sentencing qualify as proper factors on which to base an upper term sentence under section 1170, subdivision (b) , as amended by that bill . The People concede that Senate
Bill 567 is retroactive and the trial court’s imposition of the upper term on count one fail ed to comp ly with th e amended version of section 1170, subdivision (b). T he People
further concede that the erro r is not harmless. Accordingly, the parties agree , as do we, that remand for resentencing is required

. 4 Less than a month after defendant was sentenced, Senate Bill 567, effective January 1, 2022, amended section 1170, subdivision (b) to make the middle term the presumptive sentence and placed restrictions on the trial court’s discretion to impose an upper term sentence. As relevant here, the trial court may impose the upper term where

4 Defendant has not abandoned his contention that the aggravating factors cited by the court were speculative and not supported by substantial evidence. We need not reach this contention, given our conclusion that remand under the new legislation is required.4

the facts underlying any aggravating circumstances justifying a sentence exceeding the middle term “have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by a judge in a court trial.” (§ 1170, subd. (b)(2).) We join numerous courts holding that section 1170, subdivision (b) , as amended by Senate Bill 567 , applies retroactively to cases not final on appeal, such as defendant ’ s. (See, e.g., People v. Flores (2022) 73 Cal.App.5th 1032, 1039 ; People v. Zabelle (2022)
80 Cal.App.5th 1098, 1108

- 1109 ( Zabelle ) .) Applying Senate Bill 567, it is undisputed that no facts underlying the aggravating circumstances cited at sentencing were found true beyond a reasonable doubt by a jury or
a court in a bench tria l

. However, d efendant admitted the factual basis the pr osecutor stated for defendant’s guilty plea , i.e., that defendant, the stepfather of the victim,
touched the victim’s vagina over her clothes one to three times a week during a three

year period when she was between the ages of approximately 1 0 to 13 years old. We
conclude that these fa cts are sufficient to support the aggravating factor of abuse of trust (rule 4.421(a) (11 )) that the trial court cited in sentencing, but they cannot be construed as
admissions that defendant caus ed great bodily harm , the victim was particularly
vulnerable , or that defendant committ ed the crime s in a sophisticated manner. Thus, it

was error under section 1170, subdivision (b), as amended by Senate Bill 567 , to i mpos e an upper term based on three agg ravating circumstances where the underlying facts were not proved beyond a reasonable doubt or admitted by defendant. The next question is whether the error was prejudicial, a two

- step process to determine whether the error was harmless under (1) the Sixt h Amendment ; and (2) section 1170, subdivision (b) , as amended by Senate Bill 567

. ( Zabelle, supra , 80 Cal.App.5th at p. 1113.) Under the Sixth Amendment, a fact that exposes defendant to a greater potential sentence must be found by a jury beyond a rea sonable doubt. ( Zabelle, supra , 80 Cal.App.5th at p. 1110; Cunningham v. California (2007) 549 U.S. 270, 281 [1665

L.Ed.2d 856, 86 8 .) However, if a reviewing court concludes

— applying the standard of Chapman v. California (1967) 386 U.S. 18 , 24 [17 L.Ed.2d 705 , 710

- 711 ] , requiring reversal unless the error is harmless beyond a reasonable doubt

— that a jury would have
found a t least a single aggravating factor true beyond a reasonable doubt , a Sixth Amendment error is harmless. ( Zabelle , at p p

. 1 111

- 1112; People v. Sandoval (2007) 41 Cal.4th 825, 839 ( Sandoval ) .) Here, we concluded that defendant stipulated to abuse of trust (rule 4.421(a)( 11 ) ) as part of the factual basis of his plea. Therefore , we also conclude a jury would have found this agg ravating factor true beyond a reasonable doubt.
D enial of defendant’s right to a jury trial on aggravating circumstances was harmless in terms of a Sixth Amendment violation. ( Zabelle , at p. 1113.) Turning to sentencing error under amended section 1170, subdivision (b), we reach the opposit e conclusion. Here, we apply the standard in People v. Watson (1956)
46 Cal.2d 818 for errors involving violations of state law ; that is, reversal is required if it is reasonably probable that a result more favorable to the appealing party would have resulted in the absence of error. ( Id

. at p. 836; Zabelle, supra , 80 Cal.App.5th at p p

. 1110, 1113

- 1114.) Thus, while we conclude that the trial court could have imp osed an upper term based on one aggravating circumstance, we also must also consider whether
the court would have imposed the aggravated term under Watson . ( Zabelle , at p. 1112.) Although we are satisfied that defendant stipulated to one aggravating fact or cited in sentencing, we are not persuaded that the trial court would have imposed the upper term
based on this factor alone

. To that point , while giving great weight to defendant’s abuse of trust, the trial

court appeared to focus on the mental harm to the victim , which it described as “ great bodily harm ” under rule 4.421(a)(1). Based on statements K. and her mother made at the sentencing hearing, the court said that “this crime is still fresh in everybody’s mind,” and “[i]t’s not going away any time soon.” The court expressed hope that K. would “get appropriate therapy” to cope with the “flashbacks” K. described in her statement

. Given6

what K. endured, t he court asked , “How do they have a life ? How do they have a job ?
How do t hey go throughout their day knowing that something might trigger a flashback ? ”
The court endeavored to explain th e application of rule 4.421(a)(1) to these facts , remarking that “many times we just think about, was there physical harm?” B ut “[t]here
is m ental harm in this case and it’s not going away any time soon.” The court continued: “The physical harm is what we normally think about, you know, stitching, tearing, anything like that, but the mental harm is really significant in this case.” The Peop le suggest that the trial court may have meant the portion of rule 4.421(a)(1) refer

ring to a crime that involved “other acts disclosing a high degree of cruelty, viciousness, or callousness.” Assuming th e latter phrase includes mental harm, it
is clear f rom the statements quoted above from the transcript that the court referred to the

term “great bodily harm” in rule 4.421(a)(1) , and erroneously interpreted that term contrary to the express language of the rule. ( See CALCRIM No. 821 [pattern child
abuse instruction defining “ Great bodily harm ” to mean “significant or substantial physical injury”]; CALCRIM No. 830 [same definition for elder abuse instruction]; see also § 387 , subd. (b)(5) [ defining “ ‘Great bodily harm’ ” as “ a significant o r substantial physical injury”] .) Defined as “significant or substantial physical injury,” there was no factual basis for a finding of “great bodily harm” where defendant’s criminal acts consisted of touching K.’s vagina over her clothes. Thus , an aggravating factor emphasized by the sentencing court did not apply at all.
W e would be speculating to conclude that the trial court would have imposed the upper term knowing that, not onl y was the mental harm K. suffered not found true beyond a reasonable doubt or stipulated to by the defendant, as now required, but that the
rule cited did not apply to mental harm. To be sure, “the trial court is not limited to the aggravating circumstanc es listed in
the [ court ] rules.” ( People v. Black (2007) 41 Cal.4th 799, 817; rule 4.408(a).) However, “[a]ggravating circumstances considered by the trial court that are not set out in the rules7

are not subject to clear standards, and often entail a subjective assessment of the circumstances rather than a straightforward finding of facts.” ( Sandoval, supra , 41 Cal.4th at p. 840.) “[T] o the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjecti ve standard, 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.” ( Ibid

. ; People v. Wandrey (2022) 80 Cal.A pp.5th 962, 983 , review granted Sept. 28, 2022, S275942 .) “Mental harm , ” as articulated by the trial court here , is an aggravating circumstance based on a vague or subjective standard. Further , as recognized by t he
court in Wandrey , the aggravating circumstance that “the victim was particularly vulnerable” (rule 4.421(a)(3) , italics added ) i s also subjective where , as here, the victim
suffered lewd and lascivious acts starting when she was a pre

- teen

. ( People v. Wandrey,

supra , 80 Cal.App.5th at p. 983 , rev.gr. [citing Sandoval, supra , 41 Cal.4th at p. 840 ] .)
Th e subjective nature of these two aggravating circumsta nces cited by the trial court in sentencing furnishes another reason why the court’s error was not harmless under
Watson

. 5 In sum, we cannot say with the requisite amount of certainty that the trial court
would have imposed an upper term sentence based on defendant’s stipulation to the facts underlying one aggravating factor, where one of the other three factors was cited in error , and all three were subjective in nature. Therefore, we must reverse and remand to the

5 The trial court’s explanati on for the application of the aggravating circumstance that the crime was committed in a sophisticated manner (rule 4.421(a)( 8 )) also indicates the vague and subjective nature of this factor: “You committed these crimes in a somewhat sophisticated manner because you waited and thought and hoped that she would be asleep while you enjoyed and received some sexual gratification out of touching a young girl.” (Italics added.)8

trial court

. ( See Za belle, supra , 80 Cal.App.5th at p. 1115 [“reviewing court must ‘reverse where it can determine whether the improper factor was determinative for the sentencing court’ ”], quoting People v. Avalos (1984) 37 Cal.3d 216, 233.)
DISPOSITION
The sentence is vac ated and the matter remanded to the trial court for resentencing consistent with section 1170, subdivision (b), as amended. Following resentencing, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Departmen t of Corrections and Rehabilitation. The judgment is otherwise affirmed.

KRAUSE , J.

I concur:

ROBIE , Acting P. J.

I concur in the result :

MAURO , J.