Opinion
E081340
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. JUAN ENRIQUE RUBIO, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV17002520. Daniel W. Detienne, Judge.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I. INTRODUCTION
This is defendant and appellant Juan Enrique Rubio's third appeal in this case. After this case was remanded a second time following defendant's second appeal (Rubio II, supra, E076050) in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), the trial court resentenced defendant to 26 years in prison for the convictions of continuous sexual abuse of a child under 14 years of age on or about March 1, 2003, through July 1, 2003 (Pen. Code, § 288.5, subd. (a); count 1); sexual penetration with a child under the age of 18 years on or about July 2, 2003, through March 1, 2004 (§ 289, subd. (h); count 2); oral copulation with a child under the age of 18 years on or about July 2, 2003, through March 1, 2004 (former § 288a, subd. (b)(1), renumbered § 287, subd. (b)(1); counts 3 &4); and commission of a lewd act upon a child under 14 years of age on or about July 2, 2003, through March 1, 2004 (§ 288, subd. (a); count 5). Defendant again appeals from an order after judgment. Based on our independent review of the record, we find no error and affirm the judgment.
On the court's own motion, we hereby take judicial notice of our prior nonpublished opinions in defendant's case, People v. Rubio (Apr. 1, 2022, E076050) (Rubio II) and People v. Rubio (Sept. 19, 2019, E071145) (Rubio I). (Evid. Code, § 450, 452.)
All future statutory references are to the Penal Code.
Because this third appeal solely concerns a sentencing issue, which does not turn on the facts of the charged crimes, the underlying facts of the child abuse crimes are not summarized in this opinion.
The trial court sentenced defendant in this case in 2018 to a total determinate term of 18 years on counts 1 and 2, consecutive to an indeterminate term of 45 years to life, consisting of three consecutive terms of 15 years to life on counts 2, 3, and 4. (Rubio I, supra, E071145.) Defendant appealed the 2018 judgment, arguing in his first appeal that his section 288.7 convictions for sexual penetration with a child (count 2) and oral copulation with a child (counts 3 &4) under section 288.7, subdivision (b), violated ex post facto principles because the offenses occurred before the statute was enacted in 2006. (Rubio I, supra, E071145.) On September 19, 2019, this court issued an opinion agreeing and therefore modifying counts 2 through 4 to the lesser included offenses of sexual penetration in violation of section 289 (count 2) and oral copulation in violation of former section 288a, subdivision (b)(1), renumbered section 287, subdivision (b)(1) (counts 3 &4). (Rubio I, supra, E071145.)
After remand of the case, the trial court resentenced defendant on November 3, 2020, to a determinative term of 26 years in prison, consisting of the upper term of 16 years for count 1; a full consecutive upper term of 8 years for count 5; plus eight months (one-third of the two-year middle term) for each of counts 2, 3, and 4. (Rubio II, supra, E076050.) Defendant appealed again, arguing, among others, that Senate Bill 567 required his sentence be vacated and the case remanded for resentencing.
Senate Bill 567, effective January 1, 2022, amended section 1170, which provides in subdivision (b)(2) that "[t]he 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 found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." Section 1170, subdivision (b)(2), thus made the middle term the presumptive term. A trial court may now only impose an upper term when circumstances in aggravation exist, and the facts underlying the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by the jury or the court acting as the factfinder. (§ 1170, subd. (b)(1), (2), added by Stats. 2021, ch. 731, § 1.3.) We agreed that Senate Bill 567 applied to defendant and remanded the matter for resentencing on counts 1 and 5, consistent with Senate Bill 567. (Rubio II, supra, E076050.)
Defendant was resentenced pursuant to the remittitur on May 16, 2023. The trial court explained the proceedings, stating: "So let's talk a little bit about the procedural history in this case. In 2018, [defendant] had a jury trial here in this courtroom, and he was sentenced in 2018 to state prison for an indeterminate term of 45 years to life and the determinate term of 18 years. This case came back on remittitur, and in November of 2020, [defendant] was resentenced to 26 years pursuant to the remittitur. Since then, there's been another appeal, and it's back on another remittitur because of the retroactive application of S[enate] B[ill] 567 which says, 'aggravating factors have to be proven beyond a reasonable doubt.' This trial was held before the passage of S[enate] B[ill] 567, and . . . the Court had sentenced him to the upper term on [c]ount 1 of 16 years and the upper term on [c]ount 5 of eight years. They also, in the remittitur-directing the Court to amend the sentence in terms of what the principle [sic] term is. So that's why we're here."
The court then stated it understood that the parties had reached an agreement. Defense counsel responded that defendant elected to admit an aggravating factor and stipulate that the aggravating factor was true. The court noted, "And my understanding from our chambers conference, as well, is that the parties-or [defendant] is willing to admit a specific aggravating factor under California Rules of court [rule] 4.421(11), which is, [d]efendant took advantage of a position of trust or confidence to commit the offense." Defense counsel responded that was correct.
The trial court thereafter explained to defendant and advised him of his rights regarding proof of the aggravating factor. The court asked defendant if he would be willing to give up those rights and "admit the aggravating factor that we talked about that you took, that is of a position of trust or confidence to commit the offense?" Defendant responded, "Yes." The court then inquired, "Okay. And, [defendant], based on that, do you admit that in this case, the aggravating factor; that you took advantage of a position of trust or confidence to commit the offense? Do you admit that?" Defendant again replied, "Yes." The court resentenced defendant to a total determinate term of 26 years in state prison. Defendant timely appealed.
III. DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record. Counsel identifies the possible issue of whether defendant validly waived his right to a jury trial on the aggravating factor used to increase his sentence.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., McKINSTER J.