People v. Flores

73 Cal.App.5th 1032

288 Cal.Rptr.3d 818

The PEOPLE, Plaintiff and Respondent,

v.Moises FLORES, Defendant and Appellant.

A160578, A161643

Court of Appeal, First District, Division 5, California.

Filed January 13, 2022

Certified for Partial Publication.^*

Rob Bonta, Attorney General, Lance E. Winters and Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlin, Deputy Attorney General, and Bruce M. Slavin, Deputy Attorney General, Office of the Attorney General, 455 Golden Gate Avenue - Suite, 11000, San Francisco, CA 94102-7004, for Plaintiff and Respondent.

First District Appellate Project, 475 Fourteenth Street, Suite 650, Oakland, CA 94612, Alan Charles Dell'Ario, P.O. Box 359, Napa, CA 94559, for Defendant and Appellant.

Jackson, P. J. Defendant Moises Flores entered a no contest plea to one felony count of committing a lewd act on a child under age 14 (hereinafter, victim).¹ The trial court sentenced defendant to the middle term of six years in prison and denied his invitation to recall the sentence. Before us is defendant's consolidated appeal from the judgment (A160578) and the trial court's denial of his invitation to recall his sentence (A161643).

Defendant initially asked us to reverse the judgment on the grounds that the trial court abused its discretion by choosing a six-year term over probation and refusing to recall the sentence. In our initial opinion in this matter, we affirmed the judgment after concluding that the trial court did not abuse its discretion in rejecting probation in favor of the six-year midterm. We also dismissed defendant's appeal from the recall denial as taken from a nonappealable order.

In a petition for rehearing filed on December 29, 2021, defendant now requests that we grant rehearing, vacate his midterm sentence, and either impose the lower term or remand to the trial court with directions to do so. Defendant argues that an ameliorative change in Penal Code ² section 1170, the determinate sentencing law, that became effective January 1, 2022, applies retroactively to his case pursuant to In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 because his conviction is not yet final. In an answer to this petition, the People agree the new law, section 1170, subdivision (b)(6), applies retroactively in this case but disagree that defendant is automatically entitled to the lower-term sentence. The People argue we should grant rehearing and modify our opinion to remand the matter to the trial court for resentencing under the new law.

After the People filed their answer, we granted rehearing. Upon rehearing, in the nonpublished portion of this opinion, we restate our conclusion that the court had discretion to reject probation and sentence defendant to prison. We also restate our conclusion that the court's refusal to recall his sentence is not appealable. However, in the published portion of this opinion, we now conclude defendant's six-year midterm sentence must be vacated and the matter remanded to the trial court with directions to resentence him under the newly amended version of section 1170, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

On September 13, 2019, a felony complaint was filed charging defendant, age 22, with one count of committing a lewd act (kissing on the mouth) on a child under age 14 in violation of section 288, subdivision (a) and three counts of committing forcible lewd acts (touching the breasts, kissing the neck, and biting the neck) on a child under age 14 in violation of section 288, subdivision (b). These charges stemmed from the following course of events.

On September 7, 2019, the victim's mother reported to police that defendant, the live-in boyfriend of the victim's older sister, repeatedly made sexual advances toward the victim while she was staying at her father's house over the previous month.³

On September 11, 2019, the victim was interviewed at the Redwood Children's Center. She described several recent incidents of abuse involving defendant. The first incident occurred recently, about 1:00 a.m., when the victim was sitting on the couch watching television and the rest of the family was asleep. Defendant surprised her from behind and touched her in an abnormal way. Although the victim told defendant " ‘stop’ " and " ‘no,’ " he sat on her and kissed her. Defendant bit her neck and gave her a hickey as she tried to push him off. He also touched her " ‘chest area’ " over her bra with his hand and put his tongue in her mouth. Although the victim continued to say " ‘no,’ " she could not move defendant because he was still sitting on her. When the incident was over, the victim went to her bedroom and shut the door. Since the door had no lock, the victim placed items in front of it to barricade herself inside. The victim had a purple mark and bite marks on her neck.

Another time, about 12:30 a.m. during Labor Day weekend, defendant petted the victim's head, prompting her to slap his hand away and repeatedly tell him to leave. He finally did.

The victim recalled a third incident when she was sitting on a chair. Defendant tried to sit on her, but she kneed him in the jaw as hard as she could and he left. The victim also recalled defendant complimenting her and taking photos of her on Snapchat. He denied it, but she saw flashes go off.

On September 11, 2019, the victim and a detective assigned to her case initiated a pretext communication to defendant via Snapchat. During their conversation, defendant denied kissing her, giving her a hickey, or touching her breasts. Defendant claimed he had been "playing" and they "accidentally bumped heads," and stated, " ‘Oh, I don't remember tbh [to be honest]. I was super drunk.’ " When the victim told defendant what she remembered, he responded, " ‘I'm sorry. I don't want you to feel that way. It was all my fault.’ " Defendant told the victim he would only kiss her again if she wanted him to, but he would ask first.

Later that day, defendant was arrested. During his police interview, defendant recalled an incident when he sat on the victim and, when he turned his head, his lips accidentally touched hers. Defendant denied giving her a hickey or touching her breasts. He also denied being drunk and could not explain why he told the victim otherwise. Later in the interview, defendant admitted drinking but claimed not to have been impaired. He denied any intention of kissing her again, even if she consented.

On March 5, 2020, defendant pleaded no contest to one count of committing a lewd act on a child under age 14, a serious and violent felony within the meaning of sections 1192.7, subdivision (c) and 667.5, subdivision (c). Defendant's plea was an open plea with a maximum term set at eight years in prison. Defendant also agreed the trial court could consider the three dismissed counts under section 288, subdivision (b) when determining his sentence.

A probation officer interviewed defendant in anticipation of sentencing. Defendant "declined to discuss the details of the offense but accepted responsibility for what the victim reported occurred." Defendant was remorseful, stating, " ‘I'm ashamed of myself.’ " He denied being sexually attracted to young girls and insisted he would not engage in such conduct again. Using a risk assessment instrument known as Static-99R, probation assessed defendant's risk level for being convicted of another sexual offense within five years if released on probation as "average ...." The probation department recommended that the court appoint a psychologist or psychiatrist to evaluate defendant pursuant to sections 288.1 and 1203.067, a prerequisite to placing him on probation.⁴

The trial court granted probation's request for appointment of an expert under section 288.1, and on July 7, 2020, Dr. Kevin T. Kelly, Ph.D., a licensed psychologist, examined defendant. In his report to the court, Dr. Kelly opined defendant was an "excellent candidate for group treatment of sexual offense" and was likely to successfully complete a probationary period and not to reoffend. Dr. Kelly based his opinions on several findings, including the facts that defendant admitted his offense, volunteered an apology, and showed a "favorable amount of insight and self-analysis ...."

On July 16, 2020, the probation department offered a supplemental report in light of Dr. Kelly's report, in which it recommended that defendant be placed on supervised probation for four years with conditions that would include serving 12 months in jail and completing programs and services targeting his risk factors as directed by the probation officer and jail personnel.

The sentencing hearing was held on July 21, 2020. The court heard statements from the victim's parents describing their daughter's deep trauma from defendant's actions. The prosecutor then asked the court to sentence defendant to prison, pointing out that Dr. Kelly's report failed to account for "the true severity of the crimes and the impact on the victim ...." The prosecutor noted the report failed to acknowledge "the forcible elements of what had occurred, which is in front of the Court for consideration, due to Harvey⁵ waivers," and defendant's minimization of the severity of his actions. (Italics added.) Defense counsel asked the court to follow Dr. Kelly's recommendations and place defendant on probation and in a treatment program.

In ruling, the court found the factors in mitigation and aggravation were "balanced ...." The court then focused on defendant's minimization of the severity of his actions to both Dr. Kelly and the probation officer and his violation of a position of trust in the victim's family, concluding: "You had a place in their home. And you were a trusted member, really sort of collaterally, of their family by extension. And to have their child have to feel like she had to continuously run, to avoid you, into her room and throw you out of her room, is just really unconscionable. I think it would have been a different...