Opinion
A167400
04-18-2024
THE PEOPLE, Plaintiff and Respondent, v. MILES KEOLA NEIVA, Defendant and Appellant.
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR2102884
TUCHER, P. J.
Defendant Miles Keola Neiva appeals a judgment entered upon a jury verdict finding him guilty of sexual penetration of a child under the age of 10 and a lewd act on a child. He contends that the evidence is insufficient to establish sexual penetration, that the trial court erred in failing to instruct the jury on a lesser included offense, that he was prejudiced by admission of evidence of other acts, and that his sentence was unauthorized. We remand for resentencing but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background of the Offenses
The complaining witness, Jane Doe, testified at trial in January 2023, when she was 14 years old. She considered her mother's former boyfriend, Dan, to be her father, and after her mother and Dan separated, she continued to visit Dan at his home and had a room there. Defendant, a family friend, sometimes lived with Doe's family when Dan and Doe's mother were in a relationship. Later, defendant lived with Dan and the woman Dan eventually married.
Around the time Doe was seven or eight years old, defendant sometimes babysat her and her brother. When he was doing so one day, the three of them were watching a movie on Doe's mother's bed. Doe's brother fell asleep. Defendant pulled down Doe's pants and underwear, then Doe felt defendant's hand underneath her underwear, touching her vagina. At trial, Doe was asked whether defendant's hands were "doing something . . . to the inside of [her] vagina or the outside of [her] vagina," and she replied, "Inside." Asked what happened next, Doe did not respond but then answered, in response to a series of specific questions, that he took his hand out of her pants and touched his mouth, then put his hand back in her pants, touched her vagina again, and repeated the process.
Doe described other acts of molestation as well. Among them, defendant touched Doe's chest "[a]lmost every time" she went to Dan's house. She was 13 years old the last time he did so, touching her under her shirt and bra. On another occasion Doe described, he touched her chest over her clothes when she was in her bedroom. On two occasions, defendant put his hand on Doe's leg. Once, when Doe was 13 years old, defendant used a small black electronic device he called a "bug zapper" on the back of her legs, her arms, and her ribs. She told him to stop "zapping" her, and he replied," 'A little bit longer and you probably would have liked it.'" Once when Doe was 13 years old, defendant took her stuffed animal and told her she had to kiss him on his cheek to get it back. He would sometimes put her head in a headlock and not let her out, which frightened her. Defendant sometimes bit her ears and hand.
Doe eventually stopped going to Dan's house because she did not want to see defendant. After Dan married in September 2021, his wife told Doe she would like Doe to start coming to their house again, causing Doe to disclose defendant's actions. Dan's wife then called the police.
II. The Investigation
Police officers searched the rooms defendant occupied in Dan's home and in the home of defendant's brother, where defendant had just moved. From his room at Dan's home, they seized a USB thumb drive. From the room defendant occupied at his brother's home they obtained two tablets, and USB and portable drives. They seized a digital recorder from defendant's truck. From defendant's storage unit they seized another laptop computer and a small black sex toy, which in some ways appeared similar to the description Doe had provided, although it did not appear to have any electrical component or to move or vibrate.
There were about 200 pornographic videos on one of the portable drives, many of which depicted petite women with pigtails, braces, or schoolgirl outfits, with no pubic hair and "very limited breast development," who were "made to look like young children or teens." Many of the videos were set in what appeared to be children's rooms, with stuffed animals and cartoons.
One of the videos, entitled "Little Rabbit," depicted a youthful female who may have been prepubescent. An investigator who reviewed the video suspected it was child pornography. However, he was not an expert in the growth patterns of young women, and he could not determine the age of the female in the video. Screenshots from the Little Rabbit video were found on a phone and a tablet that had been seized.
A search of defendant's laptop computer indicated the user had gone to a pornographic web site and typed in the term "exxxtra small teens." On July 17, 2021, the user had obtained two videos from another pornographic web site with explicit titles referring to sexual relations between teenaged girls and fathers or stepfathers.
III. Defendant's Testimony
Testifying in his own defense, defendant denied ever watching television in the master bedroom with Doe and her brother. He said he never pulled her pants down, touched her under her shirt or bra, or touched her chest.
Defendant acknowledged that he kept a collection of pornography on his electronic devices, but he said he obtained it from legal sources, and he trusted that the participants had been vetted. He denied looking at child pornography or having a sexual interest in children or fantasizing about molesting children, but he acknowledged having a sexual interest in women presented in a manner to appear like little girls. He acknowledged searching a pornography site for "exxxtra small teens" and saving pornographic images of young-looking girls with toys and stuffed animals. He acknowledged playing an erotic virtual reality game called "Mandy's Room," which, according to the prosecutor's description that defendant did not dispute, allowed the user to interact with a female character who could be dressed in panties with cartoons on them, in a bedroom with stuffed animals on the dresser. He had masturbated while watching the Little Rabbit video. He had visited a web site directed toward helping those with addiction to masturbation more than 100 times, but he denied such an addiction. He testified that the sex toy was a remote control for a pink vibrator.
IV. Verdict and Sentence
The jury found defendant guilty of one count of sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); count 1) and one count of committing a lewd act on a child under the age of 14 (§ 288, subd. (a); count 2). The trial court sentenced defendant to 15 years to life for count 1 and a consecutive upper term of eight years for count 2.
All undesignated statutory references are to the Penal Code.
DISCUSSION
I. Sufficiency of Evidence of Penetration
Defendant's first contention on appeal is that the evidence is insufficient to establish sexual penetration.
In considering this challenge, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We "presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence" (People v. Kraft (2000) 23 Cal.4th 978, 1053), and we reverse only if" 'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) The testimony of a single witness suffices to support a conviction unless it is "physically impossible or inherently improbable." (People v. Young (2005) 34 Cal.4th 1149, 1181.) The prosecution has the burden to prove the required penetration beyond a reasonable doubt. (People v. Paz (2017) 10 Cal.App.5th 1023, 1038 (Paz).)
Section 288.7, subdivision (b) applies to any adult who engages in sexual penetration as defined in section 289 with a child 10 years of age or younger. Section 289, in turn, defines sexual penetration to include "the act of causing the penetration, however slight, of the genital or anal opening of any person" with any foreign object for the purpose of sexual arousal, gratification, or abuse. (§ 289, subd. (k)(1).) The standard for penetration of the genital opening does not require penetration of the vagina itself; rather, it can be met through penetration of the labia majora, which"' "form the external lateral boundaries of the vulva," '" and contact with the "genitalia inside the exterior of the labia majora constitutes 'sexual penetration' within the meaning of section 289." (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371 (Quintana).)
A child victim of sexual crimes must describe "the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct." (People v. Jones (1990) 51 Cal.3d 294, 316.) Where a sexual crime requires penetration, "prosecutors must elicit precise and specific testimony to prove the required penetration beyond a reasonable doubt," they should "not . . . use vague, euphemistic language," and they should "ask followup questions where necessary." (Paz, supra, 10 Cal.App.5th at p. 1038.)
Defendant argues Doe's testimony was too vague to meet these standards because there were no specific details about what part of her genitals he touched or what movements he made with his hands as he did so, and because there was no physical evidence of penetration or corroboration of what he describes as an implausible story. We disagree. The prosecutor asked Doe, "the hands touching your vagina, I asked you what his hands were doing. Was it, were his hands doing something on the-to the inside of your vagina or the outside of your vagina?" Doe responded, "Inside." That testimony is direct evidence of the crime, it is not inherently improbable, and it fully supports a finding that defendant's hand penetrated, at the very least, the outer boundary of Doe's genital opening.
II. Failure to Instruct on Attempt
Defendant contends the trial court erred in failing to instruct the jury on the lesser included offense of attempted sexual penetration.
An attempt to commit a crime requires both the specific intent to commit the crime and "a direct but ineffectual act done toward its commission." (§ 21a.) Attempted sexual penetration is a lesser included offense of sexual penetration. (People v. Ngo (2014) 225 Cal.App.4th 126, 156 (Ngo).) A trial court must instruct the jury sua sponte on a lesser included offense if there is substantial evidence, that is, evidence a reasonable jury could find persuasive, that"' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser.'" (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
Such substantial evidence was found in Ngo. The defendant there was convicted of sexual penetration with a child (§ 288.7) and contended on appeal the trial court erred in not instructing the jury on attempted sexual penetration. (Ngo, supra, 225 Cal.App.4th at p. 130.) The appellate court agreed with the defendant that there was substantial evidence to support such an instruction: in her initial statements to police the victim had been equivocal as to whether the defendant penetrated her, the victim's mother testified she interrupted the defendant's touching of the victim when she walked into the room, and the defendant acknowledged putting his hand in the victim's pants but not touching her vagina. (Id. at pp. 139-140, 157.) This evidence was consistent with the possibility that the defendant tried to penetrate the victim but was interrupted the attempt before he could complete the act. (Ibid.)
Similar facts do not exist here. Defendant points to no evidence that would support a conclusion he attempted to make contact with the genitals within Doe's labia majora, but was unable to do so because he was interrupted, because she resisted, or for any other reason. (See Quintana, supra, 89 Cal.App.4th at p. 1371.) Rather, Doe testified unambiguously that defendant touched her "inside" her vagina, and defendant flatly denied ever putting his hand down her pants or pulling them down. Neither of these versions of events is consistent with guilt only of attempted sexual penetration. The trial court did not err in failing to provide such an instruction to the jury.
III. Evidence of Other Acts
Defendant next contends that he was prejudiced by improper admission of evidence of other acts: specifically, the Little Rabbit video and descriptions of the Mandy's Room game, his computer searches, his masturbation habits, and the sex toy. He also complains that the jury was mistakenly allowed to view an exhibit list that referred to other pornography that was not admitted into evidence. We review the trial court's rulings on the admission of evidence under Evidence Code section 352 for abuse of discretion. (People v. Nguyen (2013) 212 Cal.App.4th 1311, 1331-1332.)
Both of the offenses with which defendant was charged required a showing of specific intent. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1290 [§ 288]; People v. Saavedra (2018) 24 Cal.App.5th 605, 613 [§ 288.7, subd. (b)].) That is, committing a lewd or lascivious at on a child requires a showing of the defendant's "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child" (§ 288, subd. (a)), and the offense of sexual penetration of a child 10 years of age or younger requires the defendant act "for the purpose of sexual arousal, gratification, or abuse" (§§ 288.7, subd. (b), 289, subd. (k)(1)).
For the most part, the evidence of defendant's pornography was admitted for the limited purpose of meeting these requirements. The jury was instructed that it could consider the evidence that defendant searched for teen pornography, possessed the Little Rabbit video, and possessed pornography depicting young girls or women made to look like children or teens only for the limited purpose of deciding whether he acted with the intent to gratify his sexual desires and had a motive to commit the charged offenses. It was instructed not to consider the evidence for any other purpose and not to conclude from it that defendant had a bad character or was disposed to commit crime.
As to the Little Rabbit video, this evidence was also admitted on an additional theory with potentially wider application. The jury was instructed on the elements of section 311.11, subdivision (a), the crime of possessing visual material that shows a minor engaged in sexual conduct, and then told that if the People had proved by a preponderance of the evidence that defendant committed that crime, they could, but were not required to, "conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses," including inferentially the charged offenses. (CALCRIM No. 1191A; see Evid. Code, § 1108, subd. (a).) Defendant objects there is no substantial evidence to establish that the female figure in the Little Rabbit video was a real person under the age of 18, as opposed to a computer-generated image or a young-looking adult. We need not decide this issue, as we find the evidence was properly admitted on the alternate basis that it complied with Evidence Code section 1101, subdivision (b) (section 1101(b)).
As a general rule, evidence of a defendant's conduct "is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, such evidence may be admitted when relevant to prove some fact, including motive or intent, other than the defendant's disposition to commit such an act. (Evid. Code, § 1101(b).) To be admissible under this rule, the evidence "must be relevant to some material fact in issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as Evidence Code section 352." (People v. Malone (1988) 47 Cal.3d 1, 18.)
Under this rule, "[i]n certain circumstances, evidence of sexual images possessed by a defendant has been held admissible to prove his or her intent." (People v. Page (2008) 44 Cal.4th 1, 40.) In People v. Memro (1995) 11 Cal.4th 786, for instance, the defendant was convicted of felony murder of a sevenyear-old boy based on commission or attempted commission of a lewd and lascivious act on a child. (Id. at pp. 811, 861; § 288.) As evidence of the defendant's motive and intent to perform a lewd act, the trial court admitted evidence that included pornographic magazines and photographs of clothed and unclothed youths. (Memro, at pp. 861, 864.) Our high court held admission of this evidence to show intent was not an abuse of discretion. The defendant's intent to violate section 288 was put at issue when he pleaded not guilty, and the photographs, "presented in the context of defendant's possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction." (Memro, at pp. 864-865, citing People v. Bales (1961) 189 Cal.App.2d 694, 701 [nude photograph of molestation victim admissible to show lewd intent]; see People v. Clark (1992) 3 Cal.4th 41, 129 [pornography properly admitted to show defendant's interest in particular sexual matters].) And, our high court continued, there was no abuse of discretion in treating the material as not more prejudicial than probative under Evidence Code section 352. Although the material showed young boys in sexually graphic poses and was disturbing, "its value in establishing defendant's intent to violate section 288 was substantial." (Memro, at p. 865.)
The same is true here. Defendant's possession of pornography involving subjects who appeared to be underage girls, materials involving sexual activity with girls or women in typically childhood settings, and internet searches for such things as "exxxtra small teens" were evidence of his sexual attraction to young girls, providing evidence of motive for his behavior toward Doe and of his intent to gratify his sexual desires.
These materials, like those in Memro, had substantial probative value. And the trial court was within its discretion to conclude they were not more prejudicial than probative. Prejudice is not shown merely because evidence shores up the prosecution's position; rather, evidence is treated as prejudicial for purposes of Evidence Code section 352 when it" '"' "tends to evoke an emotional bias against the defendant as an individual and . . . has very little effect on the issues." '" '" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408.) A showing of defendant's sexual interest in children would almost inevitably involve introduction of distressing or distasteful evidence. But the trial court limited the specific pornographic evidence to only a few items, which substantiated defendant's sexual interest in subjects who appeared to be minors, and none of the evidence is unduly inflammatory. The court could reasonably conclude the probative value of this evidence outweighed the potential prejudice.
Against this conclusion, defendant cites People v. Balcom (1994) 7 Cal.4th 414, a case decided the year before Memro. In Balcom, the California Supreme Court considered the admissibility of evidence that a defendant had committed a rape several weeks after the rape with which he was charged. While approving the admissibility of this evidence to show the defendant's common scheme or plan, the high court disapproved its admissibility to show intent. (Id., at pp. 421-427 [discussing Evid. Code, §§ 1101(b), 352].) Intent was at issue in Balcom because the defendant had pleaded not guilty, but "the victim's testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant's intent" to compel the victim's participation in sexual intercourse, rendering evidence of defendant's uncharged offense "merely cumulative on this issue" and its probative value outweighed by its "substantial prejudicial effect." (Balcom, at p. 423.) Similarly in this case, defendant contends, "if Doe's testimony is believed, appellant's intent was not subject to reasonable dispute," so the other evidence of defendant's interest in young girls was cumulative and should have been excluded as more prejudicial than probative.
There is perhaps some tension between Balcom and Memro, but we offer two reasons for following Memro here. First, the facts in this case are more closely analogous to those in Memro, in that the Evidence Code section 1101(b) evidence involves images and information suggesting a sexual interest in children, rather than evidence of a crime similar to the one with which defendant is charged. Second, the trial court here admitted the evidence to prove not only intent, but also motive. As Balcom exemplifies, evidence that is merely cumulative on the issue of intent may nonetheless be admitted for another Evidence Code section 1101(b) purpose. Here, the challenged evidence seems highly probative on the issue of motive, as it tends to establish a sexual interest that, the jury could infer, would impel defendant to engage in the charged crimes, and on the issue of motive, the evidence is not cumulative.
Defendant also complains that the trial court should not have allowed the prosecutor to elicit testimony about his masturbation habits. We agree that evidence of masturbation, standing alone, might well have little to no probative value. But, in isolation, evidence of masturbation is also not particularly inflammatory. The evidence here was not merely that defendant masturbated, but that he did so to childlike images. It was thus relevant to his sexual attraction to young girls, and hence to his motive and intent to commit the offenses with which he was charged.
As to defendant's possession of the sex toy, part of which resembled an object Doe testified he "zapped" her legs with before saying "A little bit longer and you probably would have liked it," it was relevant to show he touched Doe with the intent to arouse, appeal to, or gratify sexual desires, and the trial court could reasonably conclude its probative value exceeded any prejudice caused by defendant's possession of it.
Defendant also points out that the jury mistakenly was allowed to view a list of exhibits that referred to materials that were not admitted into evidence, and he argues he was prejudiced thereby. During its deliberations, having viewed that list, the jury sent a note asking to see several items listed on it: exhibits listed as "[c]olored photo of Mandy's Room" and copies of "various pornographic images." The trial court instructed the jury to disregard the exhibit list, and not to consider it for any purpose because it referred to material that was not received in evidence.
Defendant suggests the jury would have been unable to follow this instruction. He draws our attention to People v. Fritz (2007) 153 Cal.App.4th 949, 961-963, in which the appellate court concluded that the jury could not be expected to compartmentalize highly prejudicial evidence of a prior crime committed by the defendant, and that the prejudice clearly outweighed the "nugatory" probative value of the evidence. The same cannot be said about the jury mistakenly viewing the exhibit list. We have already concluded there was no abuse of discretion in admitting evidence of the Mandy's Room game or of defendant's collection of pornography, so it is difficult to discern how defendant could be harmed by the jury learning of the existence of photographs of certain of those items.
IV. Sentencing Error
Defendant's final contention is that the trial court erred in imposing the upper term for count 2. On this point, we agree with defendant.
A. Additional Background
Before the sentencing hearing, the District Attorney prepared a letter, which the trial court reviewed, recommending that defendant receive consecutive sentences and that the sentence for count 2 be the upper term of eight years. The letter pointed out that under section 1170, subdivision (b)(2), the court may order the upper term only when the facts justifying it have been stipulated to by the defendant or found true beyond a reasonable doubt by the trier of fact. The prosecutor argued defendant's own statement of his lack of remorse, reflected in the pre-sentence report, was a "non-statutory aggravating factor." This was an apparent reference to the probation report indicating that, when interviewed after his conviction, defendant said he did not do the things of which he was accused; he said the trial was" 'kind of a shit show, what with the prosecutor bringing up stuff [he] wasn't even charged with' "; and he "described several inconsistencies and spoke of several avenues of his defense that were not brought up."
At the outset of the February 15, 2023 sentencing hearing, the trial court announced its tentative decision to sentence defendant to 15 years to life for count 1 and the middle term of six years for count 2. The reasons for its tentative decision, the court explained, were the relationship of trust defendant had with Doe, the harm he had done to Doe and her family, and defendant's apparent lack of remorse, as shown by his appearance at trial and his description of the trial as" 'a shit show.'" Members of Doe's extended family then spoke about the depth of the harm defendant's actions had caused to her and to them. Defendant did not make a statement.
The trial court then decided to diverge from its tentative decision. Rather than imposing the middle term for count 2, the court imposed the upper term of eight years, citing defendant's lack of remorse as "a non-statutory aggravating factor," as laid out in the People's sentencing letter. Although no aggravating factors were pled or found true by the jury, the court referred to People v. Holguin (1989) 213 Cal.App.3d 1308 and People v. Leung (1992) 5 Cal.App.4th 482 (Leung) for authority that lack of remorse may be used as an aggravating factor. Explaining its reasoning further, the court noted that defendant had not shown remorse even when "in a room with one other person," and that he had sat silently rather than apologizing to Doe's family during the sentencing hearing.
B. Error Under Section 1170
Effective January 1, 2022, section 1170 was amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) to authorize the trial court to impose a sentence above the middle term only when circumstances in aggravation justify the upper 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)(1) &(2); see Stats. 2021, ch. 731, § 1.3.)
Although no aggravating factors were pled or found true by the jury, the trial court treated defendant's lack of remorse as a "non-statutory aggravating factor" and used it as the basis for its decision to impose the upper term. It appeared to be swayed by the District Attorney's suggestion in its sentencing letter that "[d]efendant's own statement of his lack of remorse" was in effect a stipulation.
This was error, and the Attorney General does not attempt to argue otherwise. While there is authority that lack of remorse may, in appropriate circumstances, be used as an aggravating factor (see Leung, supra, 5 Cal.App.4th at p. 507), the Attorney General has pointed us to nothing suggesting section 1170, subdivision (b)(2) does not mean what it says-that to support the upper term, aggravating factors must have been either stipulated to or found true beyond a reasonable doubt.
In a single sentence unburdened by citation to authority, the Attorney General asserts perfunctorily that defendant forfeited this claim by failing to object in the trial court. The Attorney General's claim is itself forfeited by the failure to offer sufficient argument or authority. (See People v. Dixon (2007) 153 Cal.App.4th 985, 996.) In any case, defendant's contention is that the sentence was unauthorized, a matter that may appropriately be considered even in the absence of an objection. (See People v. Neal (1993) 19 Cal.App.4th 1114, 1120-1121.) We will consider it on the merits.
The Attorney General sensibly does not argue defendant stipulated to his lack of remorse. A stipulation is "an agreement between counsel respecting business before the court." (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142.) And "[u]nless it is clear from the record that both parties assented, there is no stipulation." (Id. at p. 143.) Although there is no indication defendant showed remorse, his failure to do so and his derogatory description of the conduct of his trial do not constitute a stipulation that he lacked remorse. The trial court should not have used lack of remorse to impose the upper term.
C. Prejudice
The parties disagree on whether the error was prejudicial. There is a split of authority on the proper standard of prejudice when determining whether a matter should be remanded for resentencing in light of Senate Bill No. 567 (see, e.g., People v. Flores (2022) 75 Cal.App.5th 495, 500; People v. Lopez (2022) 78 Cal.App.5th 459, 465 (Lopez); People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct. 12, 2022, S275655 (Dunn)), and the matter is currently before our high court (People v. Lynch, review granted Aug. 10, 2022, S274942). We need not wade into the fine points of this debate.
A different panel of this division recently adopted the approach taken in Lopez, according to which the" 'failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no "evidence that could rationally lead to a contrary finding." '" (Lopez, supra, 78 Cal.App.5th at p. 465; see People v. Ross (2022) 86 Cal.App.5th 1346, 1354-1355, review granted Mar. 15, 2023, S278266 (Ross) [following Lopez].) As applied to a violation of section 1170, subdivision (b), the Lopez court ruled that where a sentencing court relied on factors not found true by a jury or admitted by the defendant, the error is not prejudicial if the reviewing court "conclude[s] beyond a reasonable doubt that the jury would have found true beyond a reasonable doubt every factor on which the court relied." (Lopez, at pp. 465466.) And, as a second step, if some of the factors the trial court relied on were permissible while others were not, reversal is unnecessary if it is reasonably probable the court would have reached the same conclusion when considering only the proper factors. (Id., at pp. 466-467 &fn. 11.)
A variant of this approach was announced in Dunn, but the difference between Dunn and Lopez evaporates in a case such as this one, where the trial court relied on a single aggravating circumstance to choose an upper term. (See Dunn, supra, 81 Cal.App.5th at pp. 409-410 [using lower standard of review for second and subsequent aggravating circumstances in first step of Lopez analysis].) When announcing its tentative decision to impose the middle term, the trial court relied on three factors: defendant's relationship of trust with Doe, the harm caused by his crimes, and his lack of remorse. But during the sentencing hearing, it decided to impose the upper term only because of what it characterized as defendant's continuing lack of remorse.
The Attorney General argues the error is harmless under any standard, but it misapplies Lopez (and Dunn) by ignoring the aggravating circumstance on which the sentencing court actually relied. The Attorney General argues the jury would have found two other aggravating factors beyond a reasonable doubt, had it been presented with them: that the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and that defendant took advantage of a position of trust and confidence to commit the offense (id., rule 4.421(a)(11)). The Attorney General does not contend the jury would have found defendant's lack of remorse an aggravating factor, and has accordingly not established that the sentencing court's error was harmless.
Under the Lopez test, we first ask whether we can "conclude beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt all of the aggravating factors on which the trial court relied." (Lopez, supra, 78 Cal.App.5th at pp. 467-468, fn. 11.) The answer to that question is no. In imposing the upper term, the trial court expressly relied on defendant's lack of remorse, as shown by defendant's derogatory comments about his trial and his failure to express remorse or apologize after hearing from Doe's family at the sentencing hearing. As we have explained, defendant did not stipulate that he lacked remorse, and we cannot say that a jury would have found this factor true beyond a reasonable doubt. Indeed, the jury never had the opportunity to hear the evidence that persuaded the trial court to find lack of remorse as an aggravating factor. The jury was obviously aware that defendant denied guilt, but where a defendant denies guilt, lack of remorse may be used as a factor in aggravation only if "the evidence of guilt is overwhelming." (Leung, supra, 5 Cal.App.4th at pp. 507508.) Here, Jane Doe's testimony provided substantial evidence to support the jury's verdict, but we are not confident beyond a reasonable doubt that the jury would have assessed the evidence of the crimes charged as "overwhelming."
Lopez would have us next determine whether we "can be certain, to the degree required by People v. Watson (1956) 46 Cal.2d 818 . . ., that the trial court would nevertheless have exercised its discretion to select the upper term if it had recognized that it could" not permissibly rely on all of the aggravating factors on which it had previously relied. (Lopez, supra, 78 Cal.App.5th at pp. 467-468, fn. 11.) Again, the answer to that question is clearly no. We have concluded the trial court could not properly rely on the sole factor it cited to increase the midterm sentence it had originally contemplated. In the circumstances, we cannot conclude it is reasonably probable the trial court would have exercised its discretion in the same way, had it not been able to consider defendant's lack of remorse.
The matter must therefore be remanded to allow the trial court to resentence defendant in a manner consistent with section 1170.
DISPOSITION
The matter is remanded for resentencing in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: FUJISAKI, J. PETROU, J.