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Filed 6/4/24 P. v. Sinay-Sicajau CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS SINAY-SICAJAU,

Defendant and Appellant.

 A166914

 (San Mateo County

 Super. Ct. No. 21-SF-012034-A)

After defendant Juan Carlos Sinay-Sicajau pleaded no contest to one 

count of committing lewd acts upon a child under age 14 (Pen. Code, § 288, 

subd. (a))1 and admitted a special allegation of substantial sexual conduct 

(§ 1203.066, subd. (a)(8)), the trial court sentenced him to six years in prison. 

His sole challenge on appeal is that the trial court erred in failing to address 

section 1170, subdivision (b)(6), which provides a rebuttable presumption in 

favor of the lower term when certain mitigating factors (including childhood 

trauma or age) contributed to the commission of the crime. We remand to 

allow the sentencing court to exercise its discretion on whether to sentence 

defendant to the low term.

1 All further statutory references are to the Penal Code unless 

otherwise indicated. 
2

BACKGROUND2

East Palo Alto Police officers responded to a convenience store after a 

report of a man with a knife. Upon arrival, officers observed defendant, along 

with an adult woman and her 10-year-old daughter (the victim), “who were 

crying and appeared distraught.” The victim explained she had been walking 

home from the store with her dog when defendant approached her, asked for 

her name, told her she was pretty, and asked for her phone number. The 

victim, fearing for her safety, gave defendant her mother’s cell phone number. 

Defendant then put his “arm around” the victim, grabbed her face, turned it 

toward him, and kissed her on her mouth. The victim “was able to free 

herself from . . . defendant, ran away, and called her mother, who responded 

to the convenient [sic] store.”

Arresting officers noted “a strong odor of alcohol” coming from 

defendant and observed “blood on his face.” During questioning, defendant 

denied physically touching or kissing the victim, but admitted to talking to 

her and asking for her phone number. He stated he was unaware of her age 

and “assumed she was 17 years old.” Further investigation revealed 

defendant sent 10 text messages to the victim’s telephone number, some of 

which “were nonsensical,” while others “stated that the . . . victim was 

pretty.” In a subsequent interview, the victim indicated defendant “touched 

her ‘upper parts’ and ‘between her legs’ over her clothing.” The victim’s 

mother reported the victim, who had been a “ ‘very happy girl, very 

confident’ ” was now “ ‘very quiet, fearful, nervous, sad and depressed.’ ”

The San Mateo County District Attorney filed a five-count amended 

information alleging three felony counts of forcible lewd acts upon a child 

2 A summary of the factual background is taken from the probation 

report. 
3

(§ 288, subd. (b)(1)—counts 1–3); one count of misdemeanor possession of 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count 4); and one 

count of felony lewd acts upon a child under age 14 (§ 288, subd. (a)—

count 5). The information further alleged as to counts 3 and 5 a special 

allegation of substantial sexual conduct (§ 1203.066, subd. (a)(8)). 

Defendant entered a no contest plea as to count 5 and admitted the 

related special allegation in exchange for a six-year sentencing lid. The trial 

court found the plea was voluntarily and freely given and granted the 

prosecutor’s motion to dismiss the remaining charges. 

The probation department recommended the trial court deny probation

and sentence defendant to prison but did not otherwise recommend a term. 

In an interview with the probation officer, defendant, who was 22 years old at 

the time of the offense, stated he was “forced to work” beginning at age five

and suffered a “chemical burn” at age six, which caused scaring to his left 

hand. His father “was strict and did not allow him to play . . . or do child-like 

activities.” His father also “physically disciplined” him and used the “family 

funds to purchase alcohol.” Defendant moved to the United States at age 17

“to escape his father’s control.” Defendant admitted to “a history of using 

alcohol and methamphetamine,” but denied “having a problem with either 

substance.” He indicated he was under the influence of alcohol at the time of 

the offense and that he was unaware of the victim’s age. He admitted to 

following the victim and “thinking that she was ‘pretty,’ ” but he did not 

remember “ever physically touching the victim.” 

The probation officer listed defendant’s youth and lack of prior criminal 

history as circumstances in mitigation (Cal. Rules of Court, rule 4.423).

3 In 

aggravation, the officer listed that the 10-year-old victim was particularly

3 All further rule references are to the California Rules of Court.
4

vulnerable, the crime involved great bodily harm “in that the defendant 

forced himself” on the victim, touching and kissing her inappropriately, and 

defendant “engaged in violent conduct that indicates a serious danger to 

society” (rule 4.421). 

At the sentencing hearing, the court heard from defendant and 

counsel.4 

The prosecution urged the court to impose the midterm of six years

noting defendant’s “lack of remorse or accountability,” the fact that defendant 

“essentially blamed this whole incident on alcohol as if it wouldn’t have 

happened but for the alcohol” all while maintaining “he has no problem with 

alcohol,” and the facts of the case—that defendant “stalked [the victim] 

repeatedly and grabbed her near her chest and between her legs.” 

Defense counsel pointed out defendant “was under the influence of 

alcohol and methamphetamine” and although he denied “an issue with 

alcohol, we know his father used alcohol and abused him his entire life 

growing up and that he came to this country to escape that. Denial isn’t 

surprising—that he doesn’t want to be like his dad—but it was clearly a 

factor here.” Counsel stated defendant does feel “tremendous remorse for 

how this young lady is feeling” but “to this day, still doesn’t recall the actions 

that were attributed to him.” Counsel continued, “My hope is that the court 

will consider his age, the fact that he has no other criminal history, and if the 

court is, I’m assuming, not going to give him probation, that the court would 

give him the low term of three years.” 

Defendant acknowledged he “made a mistake,” asked for forgiveness, 

and maintained he “didn’t know what [he] was doing due to the effects of 

alcohol.” 

4 The victim’s mother also provided a statement. 
5

The court began by stating defendant “stands convicted of both a 

serious and a violent felony for [a] lewd act upon a child, and in looking at the 

criteria affecting probation, this was an assault that took place over an 

extended period of time. He followed [the victim] from one location to 

another, attempted to continue to text message her after she tried to get 

away from him. This was a vulnerable victim,” at just 10 years old, and 

defendant “inflicted emotional injury upon her, and he was not a passive 

participant given those factors.” The court acknowledged defendant had no 

prior criminal record and there was no indication he had a prior poor 

performance on probation, given the circumstances of the case, the court 

denied probation. 

The court continued, “In terms of the Rules of Court for selection of the 

term of imprisonment, I am required to balance and weigh the factors in 

aggravation versus the factors in mitigation.” The court began by observing

defendant had no prior criminal record, and then considered each of the 

rule 4.423(a) factors stating, “[H]e was not a passive participant. He did not 

play a minor role. The victim did not initiate or was she a willing participant 

or a provoker of the incident in question. [¶] When looking at whether or not 

the crime was committed because of a, quote, ‘unusual circumstance,’ such as 

provocation, that was unlikely to occur, I suppose one could argue, and has 

been argued, that his drug and alcohol use was an unusual circumstance, but 

given that he has indicated to the probation officer in the report that he does 

not believe that he has a problem with either drugs or alcohol, I cannot find 

that it is a circumstance that is unlikely to recur given that he doesn’t 

recognize that he has a problem with addiction. So that is not a factor that 

the Court is considering to be mitigating. [¶] He was not coerced. He was 

not under duress, and this was not conduct that was excusable for a reason 
6

not amounting to a defense. He was not induced by anyone else to commit 

the crime. He took no caution to assure a lack of harm to the victim. There’s 

no issue of claim of right. [¶] He did suffer from physical abuse as a child 

but not inflicted by the victim of the crime or anyone associated with the 

victim of the crime nor was he motivated by a desire to provide for the 

necessities of life for himself or his family. None of the other mitigating 

factors that are set forth in the—in subdivision (b) other than the fact that he 

has no prior record of conviction and no poor performance on previous grants 

of probation weigh in favor of the defendant.”5 

In aggravation, the court stated the victim was particularly vulnerable. 

The court continued, “[B]ased on the vulnerability of the victim and given 

that the Court has relied on the infliction of great emotional injury as a factor 

in denying probation, the Court is relying on the vulnerability of the victim 

as a circumstance in aggravation, and I do find that the circumstance of 

aggravation in this matter weigh[s] in favor of not imposing a mitigated 

sentence or the low term in this case.” The court also pointed to defendant’s 

statement in which “the remorse that he appears to feel is remorse for his 

own situation and himself,” that defendant did not seem to accept 

responsibility at best saying “he doesn’t remember what he did,” and that 

defendant “denied having done anything” and lacked “genuine insight as to 

the pain he inflicted on the victim.” Finally, the court stated, “So the court is 

going to sentence him to the mid term of six years in the Department of 

Corrections, which, absent any aggravating factors proved to a jury, is the 

maximum sentence that the Court is legally permitted to give him.” 

5 Rule 4.423(b)—factors relating to the defendant includes that

“defendant experienced psychological, physical, or childhood trauma, 

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

and it was a factor in the commission of the crime.”
7

Accordingly, the court sentenced defendant to six years with 434 days’ credit 

for time served. 

DISCUSSION

Effective January 1, 2022, Senate Bill No. 567 (2021–2022) amended 

the determinate sentencing law, section 1170, in several respects. 

Previously, the law granted trial courts “broad sentencing discretion to 

determine whether the imposition of the lower, middle, or upper term ‘best 

serve[d] the interests of justice.’ ” (People v. Wandrey (2022) 80 Cal.App.5th 

962, 981.) But Senate Bill No. 567 established “a presumption of the lower 

term” in certain circumstances. (People v. Flores (2022) 73 Cal.App.5th 1032, 

1039.)

As relevant, section 1170, subdivision (b)(6), now provides, “[U]nless 

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 trauma, 

including, but not limited to, abuse, neglect, exploitation, or sexual violence. 

[¶] (B) The person is a youth, or was a youth as defined under subdivision (b)

of Section 1016.7 at the time of the commission of the offense.”

6

“We review a trial court’s sentencing decisions for an abuse of 

discretion.” (People v. Panozo (2021) 59 Cal.App.5th 825, 837.) “To prove an 

abuse of discretion, ‘ “[t]he burden is on the party attacking the sentence to 

clearly show that the sentencing decision was irrational or arbitrary. 

[Citation.] In the absence of such showing, the trial court is presumed to 

6 Section 1016.7, subdivision (b) defines “youth” as “any person under 

26 years of age on the date the offense was committed.”
8

have acted to achieve legitimate sentencing objectives, and its discretionary 

determination to impose a particular sentence will not be set aside on 

review.” ’ [Citation.] To meet this burden, the defendant must ‘affirmatively 

demonstrate that the trial court misunderstood its sentencing discretion.’ ” 

(People v. Lee (2017) 16 Cal.App.5th 861, 866.) “ ‘Defendants are entitled to 

sentencing decisions made in the exercise of “informed discretion” of the 

sentencing court.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

(Gutierrez).) “ ‘A court which is unaware of the scope of its discretionary 

powers can no more exercise that “informed discretion” than one whose 

sentence is or may have been based on misinformation regarding a material 

aspect of a defendant’s record.’ ” (Ibid.) 

“In such circumstances, we have held that the appropriate remedy is to 

remand for resentencing unless the record ‘clearly indicate[s]’ that the trial 

court would have reached the same conclusion ‘even if it had been aware that 

it had such discretion.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1391; People v. 

Salazar (2023) 15 Cal.5th 416, 425 (Salazar).)

Defendant asserts the trial court erred in failing to address 

section 1170, subdivision (b)(6) and the presumptive lower term as he made 

an initial showing his age and childhood trauma were a contributing factor to 

the commission of the offense. The Attorney General asserts defendant did 

not make an initial showing that his youth was a contributing factor but 

concedes defendant did make such a showing in regard to his childhood 

trauma. However, he maintains remand is unnecessary because the record 

shows “the trial court would have made the same decision had it known it 

had the discretion” to do so. (Capitalization omitted.)

We need not, and do not, consider whether defendant made a sufficient 

initial showing that his youth was a contributing factor, since we conclude 
9

remand is necessary with respect to whether defendant’s childhood trauma 

was a contributing factor. While it is a close question whether the trial court 

would have imposed the midterm had section 1170, subdivision (b)(6)’s 

presumptive low term been raised and addressed by the parties, we do not 

have the degree of confidence the Attorney General has on this point, and we 

therefore conclude remand is warranted.

The Attorney General points to several remarks by the court as 

indicating remand is unnecessary. First, he points to the sentencing hearing 

transcript pointing out the “trial court carefully weighed the aggravating and 

mitigating factors, specifically including [defendant’s] history of abuse as a 

child as well as [his] use of alcohol.” Next, respondent points to the court’s

statements regarding the severity of the crime, the defendant’s denial of his 

addiction, the vulnerability of the victim, the great emotional injury inflicted, 

and the court’s concern over defendant’s inability to accept responsibility and 

lack of sympathy for the pain he inflicted. Additionally, the Attorney General 

points out the court “specifically stated that it was sentencing [defendant] to 

the highest available term in the absence of jury-found or admitted 

aggravating factors.” Here, respondent is presumably referring to the court’s 

statement, “So the Court is going to sentence him to the mid term of six years 

in the Department of Corrections, which, absent any aggravating factors 

proved to a jury, is the maximum sentence that the Court is legally permitted 

to give him.” 

Although the trial court mentioned defendant’s childhood abuse, it 

seemingly did so only in the context of rule 4.423(a)(9),7 stating defendant 

7 Rule 4.423(a)(9)—factors in mitigation relating to the crime—

provides, “The defendant suffered from repeated or continuous physical, 

sexual, or psychological abuse inflicted by the victim of the crime, and the 

victim of the crime, who inflicted the abuse, was the defendant’s spouse, 
10

“did suffer from physical abuse as a child but not inflicted by the victim of the 

crime or anyone associated with the victim of the crime.” As such, on this 

record, we cannot say that the sentencing court’s cursory reference to 

defendant’s childhood abuse provides a clear indication that the court 

carefully weighed this as a contributing factor warranting a presumptive 

lower term under section 1170, subdivision (b)(6) or as a possible mitigating 

factor under rule 4.423(b)(3), which tracks the language of section 1170, 

subdivision (b)(6)(A). 

Although the trial court relied heavily on the vulnerability of and 

impact to the victim and the lack of remorse and understanding shown by 

defendant, we cannot say the sentencing court would have departed from this 

presumptive lower term in the “interests of justice.” (§ 1170, subd. (b)(6).) 

This is especially so given the two mitigating factors mentioned in the 

probation report and the one mitigating factor listed by the trial court—lack 

of prior criminal record. Finally, although the court’s statement that absent 

a stipulated-to or jury-found aggravating factor the court was imposing the 

maximum sentence allowable8 strongly suggests the court might impose the 

same sentence, it does not “clearly indicate” it would do so.

intimate cohabitant, or parent of the defendant’s child; and the abuse does 

not amount to a defense.”

8 Notwithstanding the agreed-to sentencing lid under the plea, the 

sentencing court was presumably referring to section 1170, 

subdivision (b)(1)–(2) here. Section 1170, subdivision (b)(1) provides, “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).” Paragraph (2), in turn, provides in pertinent part, “The court 

may impose a sentence exceeding the middle term only when there are 

circumstances in aggravation of the crime that justify the imposition of a 

term of imprisonment exceeding the middle term, and the facts underlying 

those circumstances have been stipulated to by the defendant, or have been 
11

As the Supreme Court recently held in Salazar, supra, 15 Cal.5th at 

page 426, “Under the former law, section 1170 vested the court with ‘sound 

discretion’ to simply weigh circumstances in aggravation or mitigation, and 

any other relevant factors, and then impose any of the three prescribed terms 

(low, middle, or high) it found to ‘best serve[] the interests of justice.’ (§ 1170, 

former subd. (b).) The new law dramatically restrains that discretion to 

impose the middle or upper term, now requiring the court to impose the lower 

term if a qualifying trauma was a contributing factor in the commission of 

the offense ‘unless the court finds that the aggravating circumstances 

outweigh the mitigating circumstances [so] that imposition of the lower term 

would be contrary to the interests of justice.’ (§ 1170, subd. (b)(6).)” 

Thus, “unless there is a clear indication from the sentencing court that 

it would be idle to do so, remand for resentencing is required.” (Salazar, 

supra, 15 Cal.5th at p. 431.) Although this is a close case, we simply cannot 

conclude remand would be an idle act. We express no view on how the trial 

court should exercise its discretion on remand. 

DISPOSITION

The matter is remanded to allow the trial court to exercise its 

discretion on whether to sentence defendant to the low term. In all other 

respects, the judgment is affirmed.

found true beyond a reasonable doubt at trial by the jury or by the judge in a 

court trial.” (§ 1170, subd. (b)(1)–(2).)
12

_________________________

Banke, J.

We concur:

_________________________

Humes, P. J.

_________________________

Langhorne Wilson, J.

A166914, People v. Sinay-Sicajau