People v. Berdoll

85 Cal.App.5th 159

301 Cal.Rptr.3d 136

The PEOPLE, Plaintiff and Respondent,

v.Chris Lynn BERDOLL, Defendant and Appellant.

2d Crim. No. B317129

Court of Appeal, Second District, Division 6, California.

Filed November 8, 2022

Mark R. Feeser for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

GILBERT, P. J.

While this criminal case was on appeal, there was a change in the law concerning a trial court's sentencing discretion. We decide not to remand this case to the trial court.

We rely on article VI, section 13 of the California Constitution.¹ It sets a standard for appellate courts to follow when reviewing decisions of lower courts. No alleged error here has resulted in a miscarriage of justice.

This sensible rule prompts us to affirm the trial court's imposition of an indicated sentence. We reject a literal reading of a statute when to do so has no effect and squanders judicial resources. We also rely on what is inherent in our rendering judgments, the use of judgment.

Chris Lynn Berdoll appeals from the judgment after pleading no contest to 24 counts of using a minor to pose to create media depicting sexual acts ( Pen. Code,² § 311.4, subd. (c) ; counts 1-24) and one count of possession of matter depicting a minor engaged in sexual acts (§ 311.11, subd. (a); count 25). The trial court sentenced him to four years four months in state prison. Berdoll contends the judgment should be vacated and the matter remanded for resentencing pursuant to Senate Bill No. 567 (2021-2022 Reg. Sess.). (Stats. 2021, ch. 731, § 1.3.) We conclude that here, where Berdoll agreed to an indicated sentence after the court considered the mitigating and aggravating factors in arriving at its sentence, a remand is not required. We affirm.

FACTUAL AND PROCEDURAL HISTORY³

Berdoll taught fifth grade in Atascadero. In August 2018, a student told police that she saw Berdoll hold his cell phone under another student's desk and take pictures or videos.

Police confiscated Berdoll's cell phone. On it were multiple pictures and videos of Berdoll's students. Some of the pictures had students’ faces superimposed onto the naked bodies of other children. Others had images of Berdoll superimposed in a way that made it appear that he was engaged in sexual acts with the students.

Prosecutors charged Berdoll with 24 counts of using a minor to pose to create media depicting sexual acts and one count of possession of matter depicting a minor engaged in sexual acts. At the plea hearing, and over the People's objection, the trial court said that it intended to sentence Berdoll to the upper term of three years on count 1 and run all other sentences concurrently if he pleaded guilty or no contest. It noted two aggravating circumstances supporting its indicated sentence: the crimes involved young, prepubescent girls, and Berdoll carried out his crimes in a planned, sophisticated manner by "directing the victims to move in a certain way in order to capture some of [his photographs]." Berdoll pleaded no contest to all charges.

At sentencing, the trial court said that it was revising its previously indicated sentence upward from three years to four years four months. Although the court noted Berdoll was eligible for probation, it concluded probation was inappropriate–and a longer prison sentence was justified–because his crimes represented a "massive violation of ... trust" that persisted for "such a long time." And as detailed in the probation report–which the court was required to consider ( People v. Flowers (2022) 81 Cal.App.5th 680, 683, 297 Cal.Rptr.3d 436 )–the crimes involved the exploitation of young, vulnerable children who had a "reasonable expectation of safety" in the classroom. They also "didn't have a choice in spending time and being left alone with [Berdoll]." In revising its indicated sentence, the court also considered Berdoll's lack of criminal history, that his conduct did not involve physical touching, and that he had begun therapy to begin to deal with his sexual urges. Ultimately, the court concluded that a longer prison sentence was appropriate because "here we have young children and we have a teacher doing it."

Berdoll declined to withdraw his plea, and the trial court imposed the revised indicated sentence: the upper term of three years on count 1, and consecutive eight-month terms on counts 9 and 25. The court imposed concurrent, upper-term sentences on all remaining counts.

DISCUSSION

Berdoll notes that after he was sentenced, Senate Bill No. 567 became law. He claims because of the new law this case must be remanded for resentencing.

"Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision (b), making the middle term of imprisonment the presumptive sentence." ( People v. Flores (2022) 75 Cal.App.5th 495, 500, 290 Cal.Rptr.3d 517.) "A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt." ( Ibid . ) "These amendments apply retroactively to [Berdoll] because his conviction was not final when this legislation took effect." ( Ibid . )

Here the trial court found there were aggravating circumstances that required the aggregate upper term sentence it imposed. As the People note, "[T]here was undisputed evidence that appellant was a grade-school teacher who abused his position of trust by surreptitiously taking photographs and videos of his students and manipulating those images in pornographic ways. This behavior persisted over years and involved numerous students."

In Flores , the issue was whether Senate Bill No. 567 required a remand for resentencing where the trial court, before its enactment, had imposed an upper term for a corporal injury offense based on its findings of aggravating circumstances following the defendant's conviction after a jury trial. The appellate court concluded Senate Bill No. 567 was retroactive, but it rejected the claim that a remand for resentencing was required because of the new changes enacted by Senate Bill No. 567. It said, "To the extent these aggravating circumstances were not stipulated to or found true beyond a reasonable doubt, any error in taking them into consideration is harmless." ( People v. Flores , supra , 75 Cal.App.5th at p. 500, 290 Cal.Rptr.3d 517.) " ‘[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 error is harmless. ( People v. Sandoval [2007] 41 Cal.4th [825,] 839 [62 Cal.Rptr.3d 588, 161 P.3d 1146] ; ...)" ( Ibid . )

The Flores court concluded, "On this record we are satisfied, beyond a reasonable doubt, the jury would have found true at least one aggravating circumstance." ( People v. Flores , supra , 75 Cal.App.5th at p. 501, 290 Cal.Rptr.3d 517.) "Thus, remand for resentencing on this issue is unnecessary." ( Ibid. )

Here the contested issues were not tried by a jury and the sentencing issues were determined by the trial judge. Nevertheless, we conclude that any jury would have found at least one of the aggravating factors here beyond a reasonable doubt just as the trial court did. Berdoll pled no contest to the charges. The trial court was the exclusive trier of fact. Moreover, Berdoll stipulated to a factual basis for the plea "based on the police reports." Those reports contained the uncontradicted foundation for the findings of aggravating sentencing factors. The trial court, exercising its sentencing discretion, declared it was imposing the aggregate sentence because the aggravating factors outweighed the mitigating factors.

The aggravating sentencing factors and findings were amply supported by this record and clearly articulated by the trial court. There is no valid claim that these factors did not involve patently reprehensible conduct to exploit young vulnerable children under Berdoll's control. Moreover, there is no doubt from this record as to why the trial court selected the sentence it imposed.

People v. Mitchell (2022) 83 Cal.App.5th 1051, 299 Cal.Rptr.3d 772 also supplies support for our position. Defendant entered into a stipulated plea agreement to a series of charges including reckless driving while evading a police officer. Mitchell points out that "[i]n the case where there is a stipulated plea like here, there is no occasion for the trial court to find any aggravating facts in order to justify the imposition of an upper term at sentencing." ( Id. at p. 1059, 299 Cal.Rptr.3d 772.)

"Appellant agreed to a term of six years pursuant to a stipulated plea and the trial court simply sentenced appellant according to the terms of the plea agreement. In fact, it was appellant who offered, as a factual basis for the plea, that she ‘drove recklessly while evading a police officer’ and the trial court accordingly found that a factual basis existed for the plea. The trial court therefore did not exercise any discretion under former section 1170, subdivision (b) in selecting the lower, middle, or upper term. Further, in entering into the plea, appellant knowingly waived her rights to both a jury trial and court trial. Therefore, the concern raised in Cunningham v. California [2007] 549 U.S. [270,] 293 [127 S.Ct. 856, 166 L.Ed.2d 856], that a defendant's Sixth Amendment rights are violated when aggravating facts to support an upper term sentence are not found by a jury beyond a reasonable doubt does not exist here." ( People v. Mitchell , supra , 83 Cal.App.5th at p. 1059, 299 Cal.Rptr.3d 772.)

Although here Berdoll's plea of guilty was not based on a stipulated plea agreement, his plea...