Opinion
G059723
11-14-2022
THE PEOPLE, Plaintiff and Respondent, v. MARIO ALBERTO DIAZ, SR., Defendant and Appellant.
Victoria H. Stafford, 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, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 18NF2130, Gary S. Paer, Judge. Affirmed.
Victoria H. Stafford, 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, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
INTRODUCTION
Following a bench trial, the court found Mario Alberto Diaz, Sr., guilty of one count (count 1) of oral copulation or sexual penetration of a child who is 10 years of age or younger (Pen. Code, § 288.7, subd. (b)), one count (count 2) of oral copulation or sexual penetration of a child who is 10 years of age or younger (ibid.), and five counts (counts 3 through 7) of lewdly committing a lewd or lascivious act upon a child who is under 14 years of age (Pen. Code, § 288, subd. (a)). The trial court sentenced Diaz to a term of 15 years to life on count 1, a consecutive term of 15 years to life on count 2, a consecutive upper term of eight years on count 3, and concurrent middle terms of six years on each of counts 4 through 7. Diaz's sentence amounted to a determinate term of eight years followed by a consecutive indeterminate term of 30 years to life with the possibility of parole.
Diaz contends the matter must be remanded for resentencing in two respects. First, he contends the trial court did not exercise informed discretion by making the indeterminate terms on counts 1 and 2 run consecutive to the determinate term on count 3. Second, relying on Senate Bill No. 567 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 731, § 1) (Sen. Bill 567), which amended Penal Code section 1170, subdivision (b), Diaz contends the trial court erred by imposing the upper term on count 3 without finding the circumstances in aggravation to be true beyond a reasonable doubt. We conclude remand for resentencing is not required for either reason and affirm.
FACTS
X.A. was six years old when Diaz moved into the home she shared with her father, mother, and two brothers. X.A. slept in a bedroom with her parents and one brother, the other brother slept in the living room, and Diaz had his own bedroom. Diaz took X.A. and her brothers to the movies, bought her games, presents and snacks.
Diaz's sexual abuse of X.A. began when she was seven years old. At the time, Diaz would take X.A. and her brothers to the movies and sometimes would watch movies on television with them in his bedroom. The bedroom was small - it had only one twin bed and a television - and Diaz would keep the room dark while the television was on. Diaz would position himself on the bed behind X.A. and would touch her waist and buttocks, lick her ear, and breath heavily. He would slip his hand down between her pants and underwear and touched her vagina. X.A. was shocked and did not know what to do. Diaz would kiss X.A. on the neck and tried to kiss her on the lips. Diaz often engaged in this conduct.
On a separate occasion, Diaz got on top of X.A. when they were both clothed and rubbed his penis in her vaginal area. X.A. could feel Diaz's hard penis rubbing against her.
When X.A. was eight years old, Diaz digitally penetrated her vagina. Diaz encountered X.A. in the kitchen and from there led her into his bedroom. He said in Spanish, "Hey, let's watch a movie," but instead pushed X.A. onto the bed, shut the door, pulled down her pants, and stuck two fingers into her vagina. After a few minutes, Diaz let X.A. go.
On a separate occasion, Diaz again encountered X.A. in the kitchen, led her into his bedroom, pushed her onto the bed, and pulled her pants down. On this occasion, Diaz got down on his knees and licked X.A.'s vagina. X.A. tried to kick him off but he was heavier than she was and would not stop. After about three minutes he stopped and let her go.
On another occasion, Diaz had X.A. touch his penis. Diaz again led X.A. from the kitchen into his bedroom and closed the door behind them. X.A. turned around and saw Diaz standing in front of the door with his penis exposed. Diaz told X.A. to touch his penis. Sensing that X.A. was in shock, Diaz grabbed her arm and used her hand to rub his penis. X.A. was confused because she trusted Diaz and viewed him as a friend.
Once when X.A. and her brother were watching a movie with Diaz in his bedroom, Diaz rubbed his penis against X.A. buttocks. Diaz and X.A. were lying on the bed underneath a blanket, which allowed him to hide his conduct; Diaz pulled down X.A.'s pants, placed his penis between her buttock cheeks, and "slid[ed]" his penis "through as in up and down." While Diaz rubbed his penis between X.A.'s buttocks cheeks, he whispered in Spanish in her ear, "Do you like it?" and rubbed his hardened penis against X.A.'s buttocks cheeks.
When X.A. was somewhere between the ages of seven and 11, Diaz told her to lick his penis. This occurred in Diaz's bedroom. X.A. was sitting on the bed. Diaz had closed the door and stood against it to block X.A. from leaving. Diaz faced X.A. and said, "Lick it." X.A. refused. Diaz told her, "I'll let you go if you lick it." She complied.
Although Diaz never threatened to harm X.A. if she told anyone, he would put his index finger to his lips and say, "shush, don't tell no one."
Once, when X.A. was about 10 years old, she agreed to go with Diaz to run an errand because he promised to buy her chips if she did. Diaz drove and X.A. sat in the back seat. Diaz pulled over and told X.A. to "come to the front [seat]." When she declined, he said he was not going to drive until she sat in the front. X.A. moved to the front passenger seat. She was wearing shorts, and on the drive, Diaz grabbed and squeezed her bare thigh.
Diaz last molested X.A. when she was 10 and a half years old. At that time, it was harder for Diaz to molest X.A. because another family with children had moved into the home. When the other children were in their room, Diaz called X.A. into his bedroom, pushed her onto the bed, pulled down her pants, and touched her vagina. He then pulled down his own pants, grabbed X.A.'s arm, and made her rub his penis.
The molestation stopped when Diaz moved out of the house. But X.A.'s trauma continued. From the time Diaz started molesting her, X.A. wet the bed, and was still wetting the bed at the time of trial, when she was 16 years old. She would have nightmares about Diaz touching her and would wake up with her left leg shaking. She started seeing a therapist in October 2017 but did not tell the therapist about what Diaz had done to her.
While in the seventh grade, X.A. started cutting her arms with razor blades; she felt sad and suicidal. A close friend noticed that X.A. was upset and her arms were cut. X.A. told her about what Diaz had done.
In March 2018, X.A. told her mother. X.A. was sobbing and could not be calmed down. The next day X.A. told her high school mental health counselor that six years' earlier a male roommate would lure her to his room and touch her inappropriately. X.A.'s parents took her to the police department to make a report. When the police had not contacted X.A. by May 2018, her parents went to the police department and complained. In May 2018, X.A. spoke with a police detective.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR BY MAKING THE INDETERMINATE AND DETERMINATE TERMS CONCURRENT
Diaz contends the case must be remanded for resentencing because the trial court was unaware of its discretion to run the determinate term imposed on count 3 concurrently with the indeterminate terms imposed on counts 1 and 2. We disagree. The trial court was aware of its discretion to run the determinate and indeterminate terms concurrently but made the rational decision to make them consecutive instead.
A. Background
In sentencing Diaz, the trial court imposed a determinate sentence of eight years on count 3. This determinate sentence would be served first and would be followed by two consecutive indeterminate sentences of 15 years to life imposed, respectively, on count 1 and count 2. As for the other counts, the trial court imposed concurrent sentences.
In a sentencing brief, which the trial court acknowledged having read, the prosecution noted the court had discretion to run the terms concurrently but recommended that defendant be sentenced to a maximum possible term of consecutive life sentences on counts 1 and 2 with consecutive sentences on the remaining counts. In addition, Diaz's counsel acknowledged at the sentencing hearing that the court had discretion to run the determinate and indeterminate sentences concurrently or consecutively.
The trial court agreed with the prosecution's sentencing brief and cited several reasons for the sentence. For one, the court noted that Diaz targeted an "extremely vulnerable" victim from a "position of trust." Another reason the court gave was Diaz planned his crimes and inflicted severe "psychological and emotional harm," as shown by the fact the victim wet her bed well into her teenage years. Those facts warranted a denial of probation and consecutive sentences.
B. The Trial Court Was Aware of Its Discretion
When the trial court imposes a determinate sentence and an indeterminate life sentence, the court has the discretion to decide whether the terms will be served concurrently or consecutively. (People v. Galvez (2011)195 Cal.App.4th 1256, 1264.) "'[A]bsent a showing to the contrary, the trial court is presumed to have known and followed the applicable law and to have properly exercised its discretion.'" (Ibid., quoting People v. Bradford (2010) 187 Cal.App.4th 1345, 1355.) The party challenging the sentence bears the burden of showing the sentencing decision was "'"irrational or arbitrary"'" and, to meet that burden, must "'affirmatively demonstrate that the trial court misunderstood its sentencing discretion.'" (People v. Lee (2017) 16 Cal.App.5th 861, 866.)
Diaz has cited nothing from the record that meets his burden of affirmatively demonstrating the trial judge, whom we note is quite experienced, was unaware of his sentencing discretion. To the contrary, at the sentencing hearing, the court stated it had read the prosecution's sentencing brief, which explained that the determinate and indeterminate sentences could be run concurrently. When imposing sentence on count 2, the court stated it had "selected" to make that sentence consecutive rather than concurrent. By using the word "selected" the court expressed its understanding that it alternatively could have selected the sentence on count 2 to be concurrent. The trial court gave reasons for its decision to impose a determinate sentence on count 3 to be followed by consecutive sentences on counts 1 and 2: The court stated the crimes and their objectives were "predominately independent" of each other, count 2 involved a separate crime against the same victim, and count 2 was committed at a different time and place from the crimes charged under count 1.
Count 3 was based on a violation of Penal Code section 288, subdivision (a), as were counts 4, 5, 6, and 7. The trial court made the sentences imposed under counts 4, 5, 6, and 7 run concurrent. By doing so, the court demonstrated it was aware of its discretion to make the sentence on count 3 also run concurrent but chose not to do so.
Diaz contends the trial court's statement "that term must be served first" in reference to the determinate sentence on count 3, as well as an apparent lack of rationale for imposing a consecutive sentence on count 3, is evidence the court was unaware of its discretion. The most plausible reading of the record, however, is the court was simply advising both parties on the correct application of the law; that is, "'"the determinate term of imprisonment shall be served first ...."'" (People v. Galvez, supra, 195 Cal.App.4th at p. 1264.)
Even if the trial court were unaware of its discretion, a remand for resentencing is not required unless it is reasonably probable the appellant would obtain a more favorable sentencing decision. (People v. Osband (1996) 13 Cal.4th 662, 728.) In the present case, it is not reasonably probable that Diaz would obtain a more favorable sentence on remand. In denying probation and imposing an aggravated term on count 3, the trial court found "the victim was very vulnerable and the defendant inflicted great emotional and psychological harm to the victim" and that Diaz's crimes "demonstrate some planning." The court stated the victim had been "to hell and back" and Diaz's acts "demonstrate[d] a high degree of callousness." Addressing the victim and her mother, the court agreed with their description of Diaz as "a monster." The trial court's findings and comments make it clear the court intended to hand down the most severe sentence possible and would impose precisely the same sentence if we were to vacate the sentence and remand.
II. REMAND FOR RESENTENCING PURSUANT TO SEN. BILL 567 IS NOT REQUIRED
A. Background
The trial court imposed the upper term of eight years for Diaz's conviction under count 3 for committing a lewd or lascivious act upon a child who is under 14 years of age. (Pen. Code, § 288, subd. (a).) The court identified the following circumstances in support of the aggravated sentence: (1) X.A. was "very vulnerable"; (2) Diaz inflicted "great emotional and psychological harm" on X.A.; and (3) Diaz's conduct demonstrated planning.
Diaz contends that a remand is required for resentencing due to Sen. Bill 567's amendments to Penal Code section 1170, subdivision (b) (section 1170(b)), which became effective on January 1, 2022. (Stats. 2021, ch. 731, § 1.3 [adding § 1170, subds. (b)(1), (2)].) We granted Diaz's motion for leave to file a supplemental brief regarding the application of Sen. Bill 567 to this matter, and we have received supplemental briefs from both Diaz and the Attorney General. We decline to remand the matter for resentencing because any sentencing error was harmless beyond a reasonable doubt.
B. Sen. Bill 567
When the trial court sentenced Diaz, Penal Code section 1170, subdivision (b) gave the trial court discretion to impose the lower, middle, or upper prison term in the interest of justice. Sen. Bill 567 amended section 1170(b) to limit the trial court's sentencing discretion. As amended, section 1170(b) permits a trial court to 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 found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (Pen. Code, § 1170(b)(2).)
Although the amendment to section 1170(b) made by Sen. Bill 567 did not become effective until January 1, 2022, long after Diaz was sentenced, that amendment applies retroactively to cases pending on appeal because it reduces the punishment for a particular crime. (In re Estrada (1965) 63 Cal.2d 740, 744; see People v. Zabelle (2022) 80 Cal.App.5th 1098, 1109 (Zabelle); People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez); People v. Flores (2022) 75 Cal.App.5th 495, 500 (Flores).) The Attorney General agrees that Senate Bill 567's amendment to section 1170(b) applies to Diaz.
C. Any Sentencing Error Was Harmless Beyond a Reasonable Doubt
The trial court in the present case found three circumstances in aggravation of the crime that justified imposing the upper term on count 3. As this was a bench trial, the court was the trier of fact. Although the court did not expressly state it had found the aggravating circumstances to be true beyond a reasonable doubt, as required by Penal Court section 1170(b)(2), we find any error to be harmless beyond a reasonable doubt.
Trial court error under Sen. Bill 567 is subject to harmless error review under the "beyond reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Zabelle, supra, 80 Cal.App.5th at p. 1111; People v. Salazar (2022) 80 Cal.App.5th 453, 464-465; Lopez, supra, 78 Cal.App.5th at p. 465; Flores, supra, 75 Cal.App.5th at p. 500.) These opinions have adopted the Chapman standard as phrased in People v. Sandoval (2007) 41 Cal.4th 825, in which the California Supreme Court, in considering error under Cunningham v. California (2007) 549 U.S. 270, concluded, "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval, at p. 839.)
There is a three-way split of authority on the issue of how many aggravating circumstances surviving harmless error review are necessary to support an upper term sentence and avoid a remand for resentencing. In Flores, supra, 75 Cal.App.5th at page 500 , the First District, Division Three, concluded remand is not necessary if a jury would have found true beyond a reasonable doubt at least one aggravating circumstance. The Second District, Division Six, in People v. Salazar, supra, 80 Cal.App.5th at page 464, has adopted the view in Flores. But the Fourth District, Division One, in Lopez, supra, 78 Cal.App.5th at page 466, concluded remand is required unless a "jury would have found true beyond a reasonable doubt every factor on which the court relied, because the amended statute requires that every factor on which a court intends to rely in imposing an upper term." In People v. Dunn (2022) 81 Cal.App.5th 394, 409-410, the Fifth District adopted a third standard: "The reviewing court determines (1)(a) beyond a reasonable doubt whether the jury would have found one aggravating circumstance true beyond a reasonable doubt and (1)(b) whether there is a reasonable probability that the jury would have found any remaining aggravating circumstance(s) true beyond a reasonable doubt. If all aggravating circumstances relied upon by the trial court would have been proved to the respective standards, any error was harmless." (Id. at p. 407, fn. omitted.)
We need not take a side in the debate. Which aggravating circumstances would have been found true beyond a reasonable doubt if submitted to a jury is not a relevant issue because this case was tried to the court. Section 1170(b)(2) provides that when, as in this case, a bench trial is conducted, the trial court decides whether circumstances have been proven beyond a reasonable doubt. Here, evidence of circumstances was presented during trial and at the sentencing hearing to the trier of fact - the trial judge - and the trial judge found, based on the evidence, three aggravating circumstances justifying imposition of the upper term. As Diaz points out, the trial judge did not state he had found the aggravating circumstances to be true beyond a reasonable doubt. But we, as the reviewing court, can and do conclude, beyond a reasonable doubt, that either the trial court did find each and every aggravating circumstance to be true beyond a reasonable doubt, or would have so found if that were the burden of proof at the time of sentencing.
The evidence of the circumstances in aggravation of the offense charged in count 3 was overwhelming, unchallenged, and unrefuted. The evidence at trial established that X.A. was quite vulnerable. She was only seven years old when Diaz began to abuse her. He held a position of trust and authority: He took X.A. and her brothers to the movies, bought her games, presents and snacks.
The evidence at trial established beyond reasonable doubt that Diaz inflicted severe emotional and psychological harm on X.A. She started wetting the bed at the time Diaz began abusing her and continued to wet the bed at age 16. As a teenager, X.A. cut herself, felt sad all the time, and attempted suicide. She started seeing a therapist. She had nightmares about Diaz touching her and would awake from them with her left leg shaking. When X.A. told her mother, X.A. sobbed and could not be calmed down. Both at trial, at which she was subject to cross-examination, and at the sentencing hearing, X.A. testified to the emotional and psychological harm Diaz had inflicted on her.
The evidence at trial also established beyond a reasonable doubt that Diaz's sexual abuse of X.A. involved planning. Four people in addition to Diaz and X.A. lived in the two-bedroom house. Careful planning was necessary for Diaz to avoid detection. He was careful to intercept X.A. in the kitchen and lead her to his bedroom where he would abuse her in private. When watching movies in his bedroom, he turned the lights off, positioned himself behind X.A. on the bed, and covered himself and X.A. with a blanket to conceal his actions.
Relying on Lopez, supra, 78 Cal.App.5th 459, Diaz argues the prosecution "had no occasion to prove the aggravating factors beyond a reasonable doubt" and Diaz "had no opportunity to present evidence to contest them." In Lopez, the Court of Appeal noted that the former sentencing law did not require the prosecution to present at trial evidence directly relating to the aggravating circumstances, and the defendant would have had no incentive to present contradictory evidence. (Id. at p. 466.) For those reasons, the court concluded, "It would be entirely speculative for us to presume, based on a record that does not directly address the aggravating factors, what a jury would have found true in connection with these factors." (Ibid.)
As Lopez involved a jury trial, the trier of fact was different for the guilt and sentencing phases, and so it might have been speculative to presume what the jury would have found if it had been presented with evidence of aggravating circumstances. In the present case, unlike Lopez, a bench trial was held, at trial the prosecution did present evidence directly relating to the aggravating circumstances, and nothing in the record suggests Diaz would not have been permitted to present contradictory evidence. Diaz, however, offered no witnesses at trial and, at the sentencing hearing, did not offer or make an offer of proof of any evidence relating to any aggravating circumstance. It is not speculative for us to presume what the trier of fact at the guilt phase would have found as to the aggravating circumstances because the same trier of fact presided over sentencing and found three aggravating circumstances, all of which were proved beyond a reasonable doubt.
We therefore conclude that it is beyond a reasonable doubt that the trial court either found every aggravating circumstances to be true beyond a reasonable doubt, in which case the court complied with Penal Code section 1170, subdivision (b)(2), or would have found every aggravating factor to be true beyond a reasonable doubt. "Phrased otherwise, the record 'clearly indicate[s]' that the trial court would not impose a more favorable sentence upon theoretical reversal for resentencing." (People v. Flowers (2022) 81 Cal.App.5th 680, 686.)
In Zabelle, the court considered a second layer of harmless error review. (Zabelle, supra, 80 Cal.App.5th at pp. 1112-1113.) The Zabelle court concluded that once the court determines which aggravating circumstance survive Chapman review, the court must then "consider whether it is reasonably probable that the trial court would have chosen a lesser sentence had it considered only these aggravating facts." (Zabelle, at p. 1112.) This is a People v. Watson (1956) 46 Cal.2d 818, 836 standard. (Zabelle, supra, at p. 1112.) "[T]to find harmless error for the state law error, we must find that the trial would have imposed the upper term sentence even absent the error. In particular, we must consider whether it is reasonably probable that the trial court would have chosen a lesser sentence in the absence of the error." (Ibid.) We do not have to determine whether the trial court would have imposed the upper term on count 3: The trial court did impose the upper term based on three aggravating circumstances, all of which could survive Chapman review.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., GOETHALS, J.