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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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 plead 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 sentence to range between six and 10 years. The trial court 

imposed an aggregate term of 10 years, including the upper term of eight years on count 

one. Defendant appealed, 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.
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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 Senate 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 July 23, 2021, defendant agreed to plead 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 follows: 

“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 two 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 (rule 4.421(a)(1));

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the victim was particularly vulnerable (rule 4.421(a)(3)); the 

crime was committed in a sophisticated manner (rule 4.421(a)(8)); and defendant took 

advantage of a position of trust. (Rule 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.
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In mitigation, the trial court considered that defendant had an insignificant record 

of criminal conduct (rule 4.423(b)(1)) and had apologized to the victim. (Rule 4.423(c).) 

The trial court also observed that the district attorney had charged 10 counts and 

could have charged more, because the offenses occurred several times a week over a 

period of approximately two to three years. The court further noted that during a pretext 

call, defendant indicated that he touched the victim’s legs twice but was trying to get 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, defendant 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

failed to comply with the amended version of section 1170, subdivision (b). The People

further concede that the error is not harmless. Accordingly, the parties agree, as do we,

that remand for resentencing is required.

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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.
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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 trial. However, defendant admitted the factual basis the prosecutor 

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 threeyear period when she was between the ages of approximately 10 to 13 years old. We 

conclude that these facts 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 caused great bodily harm, the victim was particularly 

vulnerable, or that defendant committed the crimes in a sophisticated manner. Thus, it 

was error under section 1170, subdivision (b), as amended by Senate Bill 567, to impose

an upper term based on three aggravating 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 Sixth 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 reasonable doubt. (Zabelle, supra, 

80 Cal.App.5th at p. 1110; Cunningham v. California (2007) 549 U.S. 270, 281 [166 
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L.Ed.2d 856, 868.) 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 at least a single aggravating factor true beyond a reasonable doubt, a Sixth 

Amendment error is harmless. (Zabelle, at pp. 1111-1112; 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 aggravating factor true beyond a reasonable doubt. 

Denial 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 opposite 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 pp.

1110, 1113-1114.) Thus, while we conclude that the trial court could have imposed 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 factor 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. Given 
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what K. endured, the court asked, “How do they have a life? How do they have a job? 

How do they go throughout their day knowing that something might trigger a flashback?” 

The court endeavored to explain the application of rule 4.421(a)(1) to these facts, 

remarking that “many times we just think about, was there physical harm?” But “[t]here 

is mental 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 People suggest that the trial court may have meant the portion of rule 

4.421(a)(1) referring to a crime that involved “other acts disclosing a high degree of 

cruelty, viciousness, or callousness.” Assuming the latter phrase includes mental harm, it 

is clear from 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 or 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.

We would be speculating to conclude that the trial court would have imposed the 

upper term knowing that, not only 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 circumstances 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 rules 
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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 subjective 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.App.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 the 

court in Wandrey, the aggravating circumstance that “the victim was particularly

vulnerable” (rule 4.421(a)(3), italics added) is 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].) 

The subjective nature of these two aggravating circumstances cited by the trial court in 

sentencing furnishes another reason why the court’s error was not harmless under 

Watson.

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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 explanation 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.) 
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trial court. (See Zabelle, 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 vacated 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 Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

 KRAUSE , J.

I concur:

 ROBIE , Acting P. J.

I concur in the result:

 MAURO , J.