Opinion
A165101
06-14-2023
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND CHARLES BOCOCK, SR., Defendant and Appellant.
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF-21-9388
MARGULIES, J.
Defendant Raymond Charles Bocock, Sr., appeals from his sentence following entry of a guilty plea. The sole issue on appeal is whether defendant is entitled to a new sentencing hearing under Penal Code section 1170, because the trial court imposed an upper term sentence based on aggravating factors which were not found true by a jury or stipulated to by defendant. We conclude we must reverse and remand for resentencing.
All further statutory references are to the Penal Code.
I. BACKGROUND
Because the underlying facts are mostly unnecessary to resolve this appeal, we include only a very brief overview of them here. Additional facts regarding the sentencing proceedings are included in the discussion section of this opinion.
A. Factual Background
The factual summary is taken from evidence presented at the preliminary hearing. In 2021, Jane Doe 1, who was 29 years old, reported to the Crescent City Police Department that when she was between the ages of 11 and 14, her father, defendant, physically and sexually abused her. When interviewed, Doe 1 reported that on five occasions, when she was between 11 or 12 years old, defendant woke her up at night, took her to the closet in his bedroom, told her to remove her clothes or removed them himself, and had sexual intercourse with her. One time he told her that if her mother found out, he would kill her mother. Another time he tied a bandana over her mouth so she would not make any noise or alert anyone; he would tell her to "shut the fuck up." Once, during intercourse, he told her he had "never lasted this long with anyone before." Doe 1 also reported that when she was 13 and 14, defendant touched her breasts, asked her to show him her breasts to get out of being grounded, and got in the shower with her. Doe 1 told police she was concerned about her 12-year-old half sister, Jane Doe 2, who was still living with defendant.
When police spoke with Doe 2, she reported that defendant came into her room at night, woke her up by kissing and touching her neck, lying on her, and touching her breasts and her buttocks area with his hands. She also said he talked to her about masturbation and told her to show him her breasts to get out of being grounded.
B. Procedural Background
On November 24, 2021, the Del Norte County District Attorney charged defendant with three counts of aggravated sexual assault of a child by forcible rape (§ 269, subd. (a)(1); counts 1, 2 &3), continuous sexual abuse of a child (§ 288.5, subd. (a); count 4), and two counts of lewd act upon a child under 14 (§ 288, subd. (a); counts 5 &6). In February 2022, defendant pled guilty to count 4, continuous sexual abuse of a child, and count 5, lewd act upon a child under 14. The remaining counts were dropped.
Defendant pled guilty under North Carolina v. Alford (1970) 400 U.S. 25, 37-38 (Alford) (allowing defendant to plead guilty to accept plea bargain while maintaining innocence), which the trial court acknowledged meant that defendant was "not taking responsibility, full responsibility."
When defendant pled guilty, the trial court, the prosecutor, and defense counsel all acknowledged that defendant would "receive an 18-year lid." Defendant confirmed he understood. The prosecutor then stated, "And one thing to add is that although there are not aggravating factors alleged in the charging document, there's a stipulation that the Court can consider the [California Rules of Court, rule] 4.421 aggravating factors at sentencing." After defense counsel confirmed that was both parties' understanding, the trial court said, "All right. The code section says if you can stipulate to that you can as well. All right. Fine."
Defendant was sentenced on April 21, 2022. The trial court sentenced defendant to 18 years comprised of the upper term of 16 years on count 4 and two years (one-third of the six-year midterm) on count 5. Defendant timely appealed.
No certificate of probable cause is necessary because the appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b)(2)(B).)
II. DISCUSSION
Defendant challenges his sentence on count 4 under the recently enacted Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567; Stats. 2021, ch. 731, § 1.3, effective Jan. 1, 2022), which amended section 1170 to limit a court's ability to impose an upper term. As amended, section 1170, subdivision (b) makes the middle term the presumptive sentence and permits imposition of an upper term sentence "only when there are circumstances in aggravation of the crime that justify" the upper term, and only if "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." (Id., subd. (b)(2).)
The trial court sentenced defendant on count 4 to the upper term of 16 years based on four aggravating factors: (1) the victims were "particularly vulnerable" (Cal. Rules of Court, rule 4.421(a)(3)); (2) defendant "threatened witnesses" (rule 4.421(a)(6)); the offenses involved "planning, sophistication" (rule 4.421(a)(8)); and defendant engaged in "violent conduct that indicates a serious danger to society" (rule 4.421(b)(1)). Defendant contends he is entitled to a new sentencing hearing because the trial court relied on facts that were not admitted by defendant or found true beyond a reasonable doubt by a jury as required under section 1170 and the Sixth and Fourteenth Amendments.
All references to rules are to the California Rules of Court.
The Attorney General argues (1) defendant forfeited his claim of error by failing to raise the issue in the trial court, (2) his counsel stipulated to consideration of the aggravating factors, and (3) remand is unnecessary in any event because any error in sentencing was harmless.
As to the first of the Attorney General's arguments, we agree defendant forfeited his statutory claim of error. The amended section 1170 was in effect at the time of defendant's sentencing. The trial court, defense counsel, and the prosecution all stipulated that the court could consider the aggravating factors. Defendant could have objected that the court's imposition of the upper term sentence did not comport with section 1170, but he did not. His failure to do so prevents him from pursuing his claim of state law error under section 1170 on appeal. (People v. French (2008) 43 Cal.4th 36, 46-48 (French) [statutory right to jury trial can be waived by failing to object, whereas constitutional right requires express waiver].)
We conclude defendant has not, however, forfeited his Sixth Amendment claim. In French, our Supreme Court rejected an argument that the defendant's failure to object in the trial court precluded him from asserting on appeal a violation of his constitutional right to a jury trial. (French, supra, 43 Cal.4th at p. 46.) The court explained: "When the constitutional right to jury trial is involved, we have required an express wavier even in cases in which the circumstances make it apparent that all involved-the trial court, the prosecutor, defense counsel, and the defendant-assumed that the defendant had waived or intended to waive the right to a jury trial. [Citations.] [Fn. omitted.] [¶] At the time that defendant entered his plea of no contest, he expressly waived his right to a jury trial on the substantive offenses, but this waiver did not encompass his right to a jury trial on any aggravating circumstances." (French, at pp. 47-48.)
We reject the Attorney General's argument that French is inapposite because at the time the defendant in that case pled guilty, the law was not clear that he had a right to a jury trial on aggravating circumstances, whereas here, it was clear at the time of defendant's plea that he had such a right. As the French court explained, an express waiver of the right to jury trial is required even when it is clear from the circumstances that the parties and court assume a defendant waived or intended to waive a right to jury trial. (French, supra, 43 Cal.4th at p. 47.) Thus, even though the law was clear defendant had a right to a jury trial on the aggravating factors and even if it appears he intended to waive that right, he is not precluded from asserting a violation of his Sixth Amendment right in the absence of an express waiver.
Here, like the defendant in French, defendant pled guilty to the underlying offenses without expressly waiving his right to a jury trial on the aggravating circumstances. Accordingly, he did not forfeit the right to raise this issue on appeal.
Turning to the merits, we likewise reject the Attorney General's second argument-that the trial court properly imposed an upper term because defense counsel stipulated before entry of the plea that the court could consider aggravating factors at the sentencing hearing. The Attorney General cursorily asserts that trial counsel's stipulation was, "if nothing else, an express waiver of the right to a jury trial on aggravating circumstances," but fails to explain why or cite any authority supporting that view. The stipulation was made by defense counsel, not defendant personally, and it did not constitute an admission that any of the facts underlying the aggravating circumstances were true. (See French, supra, 43 Cal.4th at p. 51 [defense counsel's stipulation to factual basis of plea did not amount to stipulation that facts supporting aggravating circumstances were true]; People v. Saez (2015) 237 Cal.App.4th 1177, 1206-1207 [stipulation to complaint as factual basis for plea did not constitute admission to additional facts in complaint]; People v. Roberts (2011) 195 Cal.App.4th 1106, 1121-1122 [defendant did not admit to prosecutor's recital of the factual basis underlying his Alford plea by not objecting to that recital].)
Further, there is no indication in the record that defendant, either personally or through counsel, admitted the truth of any of the facts elicited at the preliminary hearing. Nor did he admit any facts supporting the aggravating circumstances that the victims were particularly vulnerable, he threatened witnesses, he planned the offenses, or that he engaged in violent conduct. Because the court relied on aggravating facts that were not admitted by defendant or found true beyond a reasonable doubt by a jury, it violated defendant's Sixth Amendment rights. (French, supra, 43 Cal.4th at p. 52.)
"The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 ...." (People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval); French, supra, 43 Cal.4th at pp. 52-53.)
As the parties discuss at length in their briefs, the Courts of Appeal are split regarding the applicable standard of review in this situation, and the issue is currently pending before our Supreme Court. (See People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted Aug. 10, 2022, S274942; compare People v. Flores (2022) 75 Cal.App.5th 495, 500-501 [error is harmless if reviewing court concludes beyond a reasonable doubt that jury would have found at least one aggravating factor beyond a reasonable doubt]; People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11 (Lopez) [stating two-part test that asks first whether the reviewing court can conclude beyond a reasonable doubt the jury would have found all aggravating factors true beyond a reasonable doubt, and if not, whether it is reasonably probable the trial court would have imposed the upper sentence if it could only rely on one, some, or none of the aggravating factors]; People v. Dunn (2022) 81 Cal.App.5th 394, 409-410, review granted Oct. 12, 2022, S275655 [employing modified version of standard articulated in Lopez that incorporates state law standard for harmless error in first step].) We need not weigh in on the split of authority, however, because we cannot determine beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt any of the aggravating factors relied on by the trial court. Accordingly, under any of the harmless error tests, remand for resentencing is required.
In Sandoval, our Supreme Court explained, "to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court." (Sandoval, supra, 41 Cal.4th at p. 840.) Three of the four factors the trial court relied on in this case-that the victims were "particularly vulnerable" (rule 4.421(a)(3)); that the offenses involved "planning, sophistication" (rule 4.421(a)(8)); and that defendant engaged in "violent conduct that indicates a serious danger to society" (rule 4.421(b)(1))-require "a subjective assessment of the circumstances rather than a straightforward finding of facts." (Sandoval, at p. 840; see People v. Wandrey (2022) 80 Cal.App.5th 962, 983, review granted Sept. 28, 2022, S275942 [whether child molestation victim was "particularly vulnerable" or whether the defendant's offenses involved planning were subjective factors]; People v. Ross (2022) 86 Cal.App.5th 1346, 1355, review granted Mar. 15, 2023, S278266 [whether victim was "particularly vulnerable" or crime involved acts disclosing "a high degree of cruelty, viciousness, or callousness" would require court to speculate that jury would have reached same conclusion as sentencing court].) In other words, these factors are "not subject to clear standards," and require "an imprecise quantitative or comparative evaluation of the facts." (Sandoval, at p. 840.) Accordingly, there is a reasonable probability a jury would not have found these aggravating factors true beyond a reasonable doubt.
This assessment is further supported by some of the trial court's remarks at sentencing. With respect to sophistication and planning, for example, the court said, "Sex offenses aren't accidental. Usually there's grooming. This occurs at night." It is unclear from these comments whether the trial court was commenting on sex offenses generally or the particular circumstances of this case. Moreover, the Attorney General does not explain what evidence in the record supports the trial court's statement with respect to grooming, and the alleged fact that the offenses occurred at night does not amount to overwhelming evidence of planning or sophistication.
Further, it is particularly difficult to conclude on this record that a jury would have found any of the aggravating factors beyond a reasonable doubt, given that defendant entered an Alford plea. (See French, supra, 43 Cal.4th at p. 54 ["When a defendant pleads guilty or no contest, a prejudice assessment is even more problematic, because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense."]; Sandoval, supra, 41 Cal.4th at p. 840 ["a reviewing court cannot always be confident that the factual record would have been the same had aggravating circumstances been charged and tried to the jury"].) We do not know whether defendant would have disputed these issues at trial or what evidence he might have offered. For example, the fact that defendant had no prior criminal history and a "minus 1 Static-99 score" show that the issue of whether he poses "a serious danger to society" was contestable. (Rule 4.421(b)(1).) Moreover, the evidence from the preliminary hearing on which the Attorney General relies to argue harmless error was testimony from one police officer about his interviews with Does 1 and 2, containing multiple levels of hearsay. Neither victim testified under oath, nor were they cross-examined by trial counsel.
Because we cannot determine with sufficient certainty that any of the aggravating factors on which the trial court relied would have been found true beyond a reasonable doubt if submitted to a jury, we will remand the matter for resentencing. On remand, the trial court should allow the prosecution to elect (1) to meet the requirements of the amended version of section 1170, subdivision (b)(2), or (2) to accept resentencing on the existing record. (Lopez, supra, 78 Cal.App.5th at p. 469.)
III. DISPOSITION
We vacate defendant's sentence and remand for resentencing. Following resentencing, the trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: HUMES, P. J., BOWEN, J. [*]
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.