Opinion
B317046
09-27-2022
THE PEOPLE, Plaintiff and Respondent, v. JAMES ROBERT LEBUS, Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, 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.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA144354 Roger T. Ito, Judge. Sentence vacated and remanded with directions.
David M. Thompson, under appointment by the Court of Appeal, 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.
EGERTON, J.
A jury convicted James Robert Lebus of forcible sex crimes against a 13-year-old child, and the court sentenced him to 24 years in prison. On appeal, Lebus contends his case must be remanded for resentencing in accordance with Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which restricts a trial court's discretion to impose an upper term sentence. We agree, vacate the sentence, and remand the case for resentencing.
FACTS AND PROCEDURAL BACKGROUND
We take judicial notice of the record in Lebus's previous appeal in the same case, People v. Lebus (Feb. 6, 2020, B296433) [nonpub. opn.] (Lebus I). (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On August 10, 2016, Destiny W. visited her paternal grandmother, Deniece. It was the day after Destiny's thirteenth birthday. Lebus was Deniece's longtime boyfriend, and Destiny thought of him as her grandfather. Deniece and Lebus had separate bedrooms. Lebus had a futon, a desk, and a television in his bedroom.
Deniece gave Destiny permission to drink a wine cooler with dinner. Later that evening, Destiny and Lebus were watching a movie in his bedroom. Destiny was on the futon and Lebus was sitting at his desk. According to Destiny, Lebus had given her something to drink. She thought it was Gatorade but it turned out to be a wine cooler in a Gatorade bottle. Destiny believed she drank "maybe two" wine coolers; she felt "drowsy and tired."
At some point Deniece came in and said she was going to sleep. After Deniece left the bedroom, Lebus "move[d] [Destiny] over," sat down next to her on the futon, and put his hand on her right inner thigh. Then Lebus put his knees on Destiny's feet, held her arms down at her sides, pulled her underwear down with his teeth, and spread her legs apart. It hurt when Lebus put his knees on Destiny's feet. Destiny tried to get her arms free; she managed to get one arm free and pulled Lebus's hair. She told him to stop what he was doing but he didn't stop.
After Lebus bit Destiny's panties and pulled them down to her ankles, he put his head "in between [her] legs and h e touched [her] vaginal area with his tongue." He licked her vagina skin to skin. While keeping his knees on Destiny's feet and continuing to pin down her hands, Lebus inserted his finger "all the way in" to Destiny's vagina. Destiny was crying.
Lebus took his electric toothbrush "and put it in [Destiny's] anal area." He inserted the end of the toothbrush into Destiny's anus. It was vibrating.
Destiny finally was able to free her foot and she kicked Lebus as hard as she could on his left shoulder. He fell backward and Destiny ran out of the room. She ran into Deniece's room, woke her up, and told her what had happened. Destiny told Deniece "that grandpa was a bad man and that he had touched her . . . 'down there,'" pointing to her vagina. When questioned by Deniece, Lebus "said he didn't do it." Lebus told Deniece he and Destiny were "just playing and wrestling." He then took his toothbrush and left the house. Deniece took Destiny's phone so she couldn't call anyone.
The next morning, Deniece told Destiny to take a shower. Deniece called Destiny's father (Deniece's son), who called the police. Sheriffs arrived. Destiny's father gave them the underwear she'd been wearing the night before. Destiny told the deputies what had happened and they took her to the hospital for a sexual assault examination.
Tests showed no semen on Destiny's underwear but there was a saliva stain in "[t]he interior crotch area." DNA analysis of the saliva stain and reference samples revealed "a mixture consistent with two contributors," Destiny and Lebus.
1. The charges, trial, and verdicts
The People charged Lebus with two counts of forcible sexual penetration on a child under 14 years of age-one for the vaginal penetration and one for the anal penetration- in violation of Penal Code section 289, subdivision (a)(1)(B)(counts 1 and 2), and one count of forcible oral copulation on a child under 14 in violation of section 288a, subdivision (c)(2)(B) (count 3).
References to statutes are to the Penal Code.
Lebus testified on his own behalf at trial. Lebus denied having given Destiny a wine cooler. He said Destiny had drunk his wine cooler while he was outside smoking. After he went outside to smoke a second time, he returned to his room and "looked inside" before entering. Lebus testified he saw Destiny's "legs were up and her panties were down below her knees and she had a toothbrush . . . between her legs." Lebus said, "[B]asically the bristles were up in the crotch area."
Lebus testified he "jiggled the doorknob" and "waited for a second" because he didn't want to "embarrass" Destiny. Then he went into his bedroom and told Destiny he "had to tell Grandma." Lebus stated Destiny ran into Deniece's room; then Deniece came into his room and told him, "Destiny's saying I touched her." Lebus told Deniece he and Destiny had been "Indian wrestling" "[e]arlier in the day." Destiny said they had not been wrestling.
Lebus testified, "My thing was I didn't do anything wrong so . . . I started loading my stuff up to go to work" at 3:00 a.m. Lebus never returned to Deniece's house. He was arrested about seven months later at a motel.
The jury convicted Lebus of the vaginal sexual penetration and the oral copulation (counts 1 and 3). The jury acquitted Lebus of the anal sexual penetration (count 2).
2. Sentencings and appeals
The trial court sentenced Lebus to an aggregate term of 24 years, consisting of the upper term of 12 years on each count. On appeal, this court affirmed the convictions but vacated the sentence and remanded the case for the trial court to determine whether Lebus's crimes took place on the same or separate occasions and to state reasons for imposing fully consecutive sentences. (See Lebus I.)
On remand, the trial court again sentenced Lebus to 24 years. The court explained that fully consecutive sentences were warranted because "this was a child who treated [Lebus] and believed that he was her grandfather, and that she trusted him, and that she was especially vulnerable. There was a certain amount of sophistication and planning that went into this. He had supplied her with alcohol earlier in the evening. Obviously, specifically, to get her in a mindset or with a lessened state of vigilance so he could conduct this activity." Although somewhat unclear, the court seemed to rely on the same factors to impose the upper term sentences.
Lebus timely appealed.
DISCUSSION
Lebus's sole contention on appeal is that his case must be remanded for resentencing in accordance with Senate Bill 567.
When the trial court sentenced Lebus, section 1170 provided, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Former § 1170, subd. (b).) Under this provision, the trial court was free to impose an upper term sentence based on any aggravating circumstances it deemed significant, so long as they were reasonably related to the sentencing decision. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1195-1196.) "An aggravating circumstance is a fact that makes the offense 'distinctively worse than the ordinary.'" (People v. Black (2007) 41 Cal.4th 799, 817 (Black).) The California Rules of Court provide a non-exhaustive list of aggravating circumstances, including that the victim was particularly vulnerable, the defendant took advantage of a position of trust or confidence to commit the offense, and the manner in which the crime was carried out reflects planning, sophistication, or professionalism. (Cal. Rules of Court, rule 4.421.)
While Lebus's appeal was pending, Senate Bill 567 took effect. It restricts a trial court's discretion to impose an upper term sentence. Effective January 1, 2022, "[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." (§ 1170, subd. (b)(2).)
The parties agree-as do we-that, because Lebus's case was not yet final when Senate Bill 567 went into effect, he is entitled to the retroactive benefit of the ameliorative legislation. (See In re Estrada (1965) 63 Cal.2d 740, 744-745; People v. Flores (2022) 73 Cal.App.5th 1032, 1039.) The parties disagree, however, as to the proper disposition. Lebus contends that, because-when imposing the upper terms on counts 1 and 3- the trial court relied on aggravating circumstances not stipulated to nor found true by the jury, we must remand the case for resentencing. The Attorney General contends remand is unnecessary because the trial court's failure to apply the new law was harmless.
Courts of Appeal have articulated several harmless error standards to determine whether remand is required when a trial court failed to comply with the amended version of section 1170. Under one standard-articulated in People v. Flores (2022) 75 Cal.App.5th 495-the error is harmless if the reviewing court determines beyond a reasonable doubt that the jury would have found true at least one aggravating circumstance. (Id. at pp. 500-501.) Under another standard-articulated in People v. Lopez (2022) 78 Cal.App.5th 459 (Lopez)-the reviewing court first considers whether, beyond a reasonable doubt, the jury would have found true all the aggravating circumstances. If so, the error is harmless. If not, the reviewing court considers whether it is reasonably probable the trial court would have imposed a more favorable sentence had it not considered the improper factors. (Id. at pp. 464-467.) More recently, the court in People v. Zabelle (2022) 80 Cal.App.5th 1098, articulated a modified version of the Lopez standard that additionally asks whether it is reasonably probable the jury would have found true all the aggravating circumstances. (Zabelle, at pp. 1110-1113; see People v. Dunn (2022) 81 Cal.App.5th 394, 405-410.)
Both the Flores, supra, 75 Cal.App.5th 495, and Lopez standards suffer from the same problem: they fail to account for the fact that the retroactive application of Senate Bill 567 raises both federal constitutional and state statutory issues, which are subject to different harmless error standards. Like the court in Zabelle, we think the proper course is to analyze those issues separately. As to the constitutional violation, we apply the federal Chapman standard and ask whether, beyond a reasonable doubt, the jury would have found true at least one aggravating circumstance. (See People v. Sandoval (2007) 41 Cal.4th 825, 838-839 (Sandoval).) As to the statutory violation, we apply the state Watson standard and ask whether it is reasonably probable the jury would have found true all the aggravating circumstances on which the trial court relied. If so, the error is harmless. (See People v. Breverman (1998) 19 Cal.4th 142, 177-178 (Breverman).) If not, we consider whether it is reasonably probable the court would have imposed a more favorable sentence had it not relied on the improper factors. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos).)
Chapman v. California (1967) 386 U.S. 18.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
We consider the constitutional issue first. It requires a brief discussion of the history of section 1170. The original version of section 1170 required a trial court to impose the middle term unless the court found circumstances in aggravation or mitigation of the crime. (Stats. 1976, ch. 1139, § 273.) In Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the United States Supreme Court held this provision "violates a defendant's federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence." (Sandoval, supra, 41 Cal.4th at pp. 831-832.)
In response to Cunningham, the Legislature amended section 1170 to provide, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (Stats. 2007, ch. 3, §§ 1-2.) By allowing trial courts to exercise discretion within a statutory range, rather than mandating the middle term absent aggravating or mitigating circumstances, the amended statute avoided the issues the United States Supreme Court identified in Cunningham. (Sandoval, supra, 41 Cal.4th at pp. 843-844.) The trial court sentenced Lebus under this version of section 1170.
The current version of section 1170, as amended by Senate Bill 567, once again implicates Cunningham because it precludes a trial court from selecting the upper term unless there are aggravating circumstances. (§ 1170, subd. (b).) Here, the trial court imposed the upper terms on counts 1 and 3 based on aggravating circumstances that were not established by the jury's verdict, Lebus's admissions, or his prior convictions. The sentence, therefore, runs afoul of Cunningham, and we must remand for resentencing unless the error is harmless.
In Sandoval, the California Supreme Court held Cunningham error is harmless if the reviewing court determines, beyond a reasonable doubt, that the jury would have found true at least one aggravating circumstance. (Sandoval, supra, 41 Cal.4th at pp. 838-839.) The court explained that the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 839; see Black, supra, 41 Cal.4th at p. 813.) Moreover," 'so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.'" (Sandoval, at p. 839.)
Our Supreme Court has cautioned, however, that it can be "problematic" for a reviewing court to determine whether a jury would have found true an aggravating circumstance. (People v. Boyce (2014) 59 Cal.4th 672, 728.) The reviewing court, for example, "cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance." (Ibid.) In addition, "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.) Further, "[m]any of the aggravating circumstances described in the rules require an imprecise quantitative or comparative evaluation of the facts. For example, aggravating circumstances set forth in the sentencing rules call for a determination as to whether '[t]he victim was particularly vulnerable,' whether the crime 'involved a[ ] . . . taking or damage of great monetary value,' or whether the 'quantity of contraband' involved was 'large' [citation]." (Ibid.)
Mindful of these problems, we are nevertheless confident, beyond a reasonable doubt, that the jury would have found true at least one aggravating circumstance: that Lebus took advantage of a position of trust to commit the offenses. The undisputed evidence shows Lebus was in a long-term dating relationship with Destiny's grandmother, and Destiny considered him to be her grandfather. The evidence also shows Lebus committed the offenses while Destiny was spending the night at his home and watching a movie in his room. The jury plainly believed this testimony in convicting Lebus, and Lebus does not contend he could have presented evidence or otherwise developed the record in such a way as to show he did not take advantage of a position of trust. Moreover, unlike some aggravating circumstances, determining whether Lebus used a position of trust does not require an imprecise quantitative or comparative evaluation of the facts. In light of the overwhelming and uncontroverted evidence, beyond a reasonable doubt the jury would have found Lebus used a position of trust to commit the offenses. (See People v. Clark (1992) 12 Cal.App.4th 663, 666 [a stepfather entrusted with caring for the victim was in a position of trust and confidence as to the child].) Accordingly, any Cunningham error was harmless.
That Lebus's sentence passes constitutional muster, however, does not end our inquiry. Unlike the federal constitution, the current version of section 1170 requires all aggravating circumstances relied on by the court-except for the defendant's prior convictions, based on a certified record of conviction-be found true by the trier of fact or stipulated to by the defendant. (§ 1170, subd. (b)(2), (3).) Accordingly, we must also decide whether the trial court's failure to comply with this statutory requirement was harmless.
Section 1170 does not explicitly forbid a trial court from relying on its own factual findings in addition to those found true by the trier of fact or stipulated to by the defendant. However, section 1170, subdivision (b)(3) states, "the court may consider the defendant's prior convictions in determining sentencing . . . without submitting the prior convictions to a jury." This implies the court may not consider other factors that were not submitted to the jury. (See In re J.W. (2002) 29 Cal.4th 200, 209 ["the expression of one thing in a statute ordinarily implies the exclusion of other things"].) This interpretation is consistent with the legislative history of Senate Bill 567. A number of legislative committee reports and analyses of Senate Bill 567, for example, state the bill requires the aggravating circumstances relied on by the court at sentencing be found true by the trier of fact or admitted by the defendant. (See, e.g., Sen. Com. on Public Safety, com. on Sen. Bill No. 567 (2021-2022 Reg. Sess.) April 13, 2021, p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 567 (2021-2022 Reg. Sess.) as amended May 20, 2021, p. 1; Assem. Com. on Appropriations, com. on Sen. Bill No. 567 (2021-2022 Reg. Sess.) as amended July 1, 2021, p. 1; Assem. Com. on Public Safety, com. on Sen. Bill No. 567 (2021-2022 Reg. Sess.) as amended May 20, 2021, p. 1.)
As noted above, the California Supreme Court has held the federal constitution requires only that a jury find true a single aggravating circumstance. (See Black, supra, 41 Cal.4th at p. 813.) Accordingly, section 1170's requirement that all aggravating circumstances relied on by the court (except for the defendant's prior convictions) be found true by the trier of fact or stipulated to by the defendant is a purely state-created right. "[A]ny state law right to a jury determination of particular issues is qualified in turn by the appellate review standards set forth in article VI, section 13 of the California Constitution," and subject to the Watson harmless error test. (Breverman, supra, 19 Cal.4th at pp. 177-178.) Under that test, an error "is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Id. at p. 165; see Watson, supra, 46 Cal.2d at p. 836.) Therefore, we must ask whether it is reasonably probable that the jury would have found true all the aggravating circumstances on which the trial court relied and, if not, whether it is reasonably probable that the court would have imposed the same sentence absent those circumstances.
We reject the Attorney General's contention that the Sandoval harmless error standard applies to statutory errors under section 1170. Unlike the Sixth Amendment and the original version of section 1170-which were at issue in Sandoval -the current version of section 1170 mandates that all facts underlying the aggravating circumstances on which the trial court relies be found true by the trier of fact, stipulated to by the defendant, or concern the defendant's criminal record. (§ 1170, subd. (b)(2), (3).) Because Lebus's appeal is premised on violations of this version of section 1170, it is not enough to ask whether the jury would have found true at least one aggravating circumstance.
Applying that test here, we conclude the court's failure to comply with the amended version of section 1170 was not harmless. It is reasonably probable the jury would have found true one of the circumstances on which the trial court relied: that Lebus took advantage of a position of trust to commit the offenses. We are not, however, sufficiently convinced that the jury would have found true the other circumstances.
With respect to the first remaining circumstance-that Destiny was particularly vulnerable-the Supreme Court has cautioned that determining whether a victim was particularly vulnerable requires an imprecise quantitative or comparative evaluation of the facts, making it difficult to conclude with confidence that the jury would have assessed the facts in the same way as did the trial court. (Sandoval, supra, 41 Cal.4th at p. 840.) Nor is the record on the issue as one-sided as the Attorney General suggests. At 13 years of age, Destiny was near the top end of the age bracket for the offenses. The evidence also shows she successfully fought off Lebus during the attack, her grandmother was nearby at the time, and she felt comfortable disclosing the abuse immediately after it happened. In light of this evidence, we cannot say it is reasonably probable the jury would have found Destiny was particularly vulnerable had the issue been submitted to it.
We are similarly unconvinced that the jury would have found true that the offenses involved planning and sophistication. In support of this finding, the trial court noted Lebus "supplied [Destiny] with alcohol earlier in the evening." The evidence on this issue, however, was conflicting. For example, Lebus denied giving Destiny any alcohol and claimed she drank his wine cooler without his knowledge while he was outside smoking. Moreover, the other circumstances of the offenses do not strongly indicate planning or sophistication; they are equally consistent with rashness and impulsivity. Accordingly, it is not reasonably probable the jury would have found this aggravating circumstance to be true.
Where, as here, a trial court relies on improper factors at sentencing, we ask whether it is reasonably probable the court would have imposed a more favorable sentence absent its reliance on the improper factors (i.e., the factors that we are not sufficiently convinced the jury would have found true). (Lopez, supra, 78 Cal.App.5th at p. 467; see Avalos, supra, 37 Cal.3d at p. 233; People v. Price (1991) 1 Cal.4th 324, 492; Watson, supra, 46 Cal.2d at p. 836.) Under this standard, we must remand for resentencing if we "cannot determine whether the improper factor was determinative for the sentencing court." (Avalos, at p. 233.)
Here, it is not sufficiently clear the trial court would have imposed the same sentence had it not relied on its findings that Destiny was particularly vulnerable and the offenses involved sophistication and planning. The trial court did not discuss how it was weighing the factors, nor did it give any indication it would have selected the upper terms based solely on the fact that Lebus took advantage of a position of trust. Because we cannot determine whether improper factors were determinative for the court, we must remand the case for resentencing in accordance with the amended version of section 1170. (Avalos, supra, 37 Cal.3d at p. 233.)
Because we are remanding the case for resentencing, we do not address the errors in the abstract of judgment.
DISPOSITION
We vacate James Robert Lebus's sentence and remand the case for resentencing in accordance with Penal Code section 1170, as amended by Senate Bill No. 567. We affirm the judgment in all other respects.
We concur: EDMON, P. J. ADAMS, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.