People v. Tellez CA4/3

Filed 5/2/22 P. v. Tellez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059713

v. (Super. Ct. No. 17CF2601)

RUBEN RAMIREZ TELLEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T.

Pham, Judge. Affirmed in part and reversed in part.

Michael C. Sampson, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Eric A.

Swenson, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and

Respondent.

Ruben Ramirez Tellez appeals from the judgment after a jury convicted

him of assault with the intent to commit a sexual offense (Pen. Code, § 220, subd. (a)(1);

count 1),1 assault with a deadly weapon (§ 245, subd. (a)(1); count 2); and false

imprisonment by violence (§§ 236, 237, subd. (a); count 3). The jury also found Tellez

used a deadly weapon in the commission of the offenses in counts 1 and 3. (§§ 12022.3,

subd. (a), 12022, subd. (b)(1).) The trial court imposed a total prison sentence of 16

years, which included upper terms on count 1 and its attending deadly weapon

enhancement.

Tellez raises two sentencing issues on appeal. First, he contends the trial

court abused its discretion by relying on improper aggravating factors to impose upper

terms on the assault conviction in count 1 and its deadly weapon enhancement. While

this appeal was pending, Senate Bill No. 567 (Reg. Sess. 2020-2021) (Stats. 2021,

ch. 731) became effective. It is an ameliorative change in the law that restricts the court’s

discretion to impose a sentence greater than the middle term of imprisonment. (Stats.

2021, ch. 731, § 1.) The parties agree Senate Bill No. 567’s provisions apply

retroactively to this case. Tellez argues the matter must be remanded so the trial court

can resentence him consistent with the changes made by Senate Bill No. 567. The

Attorney General disagrees, asserting remand is unnecessary because any error is

harmless. We agree with Tellez. We vacate the sentence and remand the matter for

further proceedings consistent with Senate Bill No. 567.

Second, Tellez argues the trial court’s order for testing under section

1202.1 must be stricken because he was not convicted of a qualifying offense. The

Attorney General concedes this issue, and we accept the concession. Accordingly, we

vacate the order for testing under section 1202.1.

1

All further statutory references are to the Penal Code, unless otherwise

indicated.

2

FACTS2

Tellez noticed a homeless woman outside a restaurant in Orange. He

offered to let her take a shower in his nearby motel room, and she accepted. After

showering and getting dressed, the woman exited the bathroom to find Tellez lying on the

bed wearing only a T-shirt and boxer shorts. When she indicated she wanted to leave,

Tellez became angry and stood by the door, impeding her ability to get out of the motel

room. While she was sitting on the bed’s edge, Tellez walked up behind her and hit her

in the back of the head with a metal flashlight. Everything went blurry for a second, but

she managed to stand up. Tellez grabbed her in a bear hug, trying to get her back on the

bed. He picked up a three-inch knife. After a brief struggle, the woman managed to

escape, ran down the street, and called the police. When the paramedics were treating

her, she realized she had been stabbed in the stomach.

DISCUSSION

I. Senate Bill No. 567

At the time Tellez was sentenced, the trial court had broad discretion under

section 1170, subdivision (b), to decide which of the tripartite terms of imprisonment to

impose for an offense or enhancement. (See § 1170, subd. (b), as amended by Stats.

2020, ch. 29, § 14; People v. Sandoval (2007) 41 Cal.4th 825, 843, 846-847 (Sandoval).)

Exercising its discretion, the trial court imposed upper terms on Tellez’s conviction for

assault with intent to commit a sexual offense (six years) and the deadly weapon

enhancement attached to this count (10 years), based on its finding the aggravating

circumstances outweighed the mitigating circumstances. The court found three

aggravating circumstances related to the crime: (1) “The crime involved great violence,

disclosing a high degree of cruelty, viciousness or callousness in that [Tellez] struck the

victim on the head with a metal flashlight and stabbed her in the abdomen with a knife”

2

Due to the issues presented on appeal, a truncated version of the facts

suffices.

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(Cal. Rules of Court, rule 4.421(a)(1)); (2) Tellez “was armed with and did use a weapon,

a knife, at the time of the commission of this crime” (id., 4.421(a)(2)); and (3) “[T]he

victim was particularly vulnerable in that she was homeless and [Tellez] took advantage

of this by offering her a place to shower in order to lure her into his motel room” (id.,

4.421(a)(3)).

Effective January 1, 2022, Senate Bill No. 567 amended section 1170,

subdivision (b), in a number of respects. Now, a trial court cannot impose a sentence

exceeding the middle term unless (1) “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 . . .” (§ 1170, subd. (b)(2)), or (2) the

defendant has suffered prior convictions as found by the court based on certified records

(id., subd. (b)(3)). The amendments to section 1170, subdivision (b), also provide for a

bifurcated trial on the aggravating circumstances if requested by the defense. (Id., subd.

(b)(2).)

We agree with the parties that Senate Bill No. 567’s amendments apply

retroactively to Tellez’s case because the judgment is not yet final. The legislation

reduces the presumptive punishment, and it is well established an ameliorative change in

criminal statutes applies retroactively to all nonfinal judgments absent an indication of

contrary legislative intent. (People v. Esquivel (2021) 11 Cal.5th 671, 674-675; In re

Estrada (1965) 63 Cal.2d 740, 744-745.)

Based on the amendments to section 1170, subdivision (b), Tellez argues

his sentence must be vacated and the matter remanded for further proceedings because

only one of the aggravating circumstances relied on by the court was found true by the

jury—use of a deadly weapon—and it cannot be used to impose an upper term on his

conviction because it was also the basis for the deadly weapon enhancement. The

Attorney General argues remand is unnecessary because any error in imposing the upper

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term on count 1 and its deadly weapon enhancement was harmless beyond a reasonable

doubt.

The Attorney General asserts this situation is comparable to “Cunningham

error.” In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme

Court held a prior version of section 1170, subdivision (b), was unconstitutional because

it gave authority to a sentencing court, rather than the jury, to find facts that exposed a

defendant to an upper term sentence. (Cunningham, supra, 549 U.S. at pp. 274, 277.)

After Cunningham, the California Supreme Court concluded imposition of an upper term

sentence in violation of a defendant’s right to a jury trial on aggravating circumstances

was subject to harmless error review under Chapman v. California (1967) 386 U.S. 18.

(Sandoval, supra, 41 Cal.4th at p. 838.) Under this standard, “[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 Sixth Amendment error properly may

be found harmless.” (Id. at p. 839.)

Here, the issue is whether the jury unquestionably would have found true

two aggravating circumstances beyond a reasonable doubt for the court to impose upper

terms for the assault conviction in count 1 and its deadly weapon enhancement. The

Attorney General asserts remand is unnecessary in this case because it can be concluded

beyond a reasonable doubt the jury wound have found (1) Tellez used two deadly

weapons during the attack, and (2) the “victim was ‘particularly vulnerable’” because

Tellez isolated her by luring her to his motel room. We disagree.

In Sandoval, our Supreme Court cautioned, “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. [¶] Additionally, 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

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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.)

Whether the victim was particularly vulnerable, one of the aggravating

circumstances relied upon by the trial court and the Attorney General, is a vague or

subjective standard. The Supreme Court has advised the “determination as to whether

‘[t]he victim was particularly vulnerable,’” requires “an imprecise quantitative or

comparative evaluation of the facts.” (Sandoval, supra, 41 Cal.4th at p. 840.) In

Sandoval, the Supreme Court rejected the Attorney General’s contention the jury’s failure

to find an aggravating circumstance based on the victim’s particular vulnerability was

harmless beyond a reasonable doubt, noting the record did not provide “a clear-cut

instance of victim vulnerability . . . as might be the case if, for example, the victims had

been elderly, very young, or disabled, or otherwise obviously and indisputably

vulnerable.” (Id. at p. 842.)

Here, we similarly conclude the record provides reasonable doubt as to

whether the jury would have found the victim was “particularly vulnerable.” The

probation officer, who was familiar with the facts, reached an opinion different from the

sentencing court. The probation officer opined the victim was not considered any more

or less vulnerable when compared with victims of similar crimes (Cal. Rules of Court,

rule 4.414(a)), and the probation officer did not suggest “[t]he victim was particularly

vulnerable” as an aggravating circumstance (id., rule 4.421(a)(3)). Although Tellez

isolated the victim in his motel room, she was not elderly, very young, or disabled, or

otherwise indisputably vulnerable. Whether the crime involved “great violence” or

“great bodily harm” (id., rule 4.421(a)(1)) was also a subjective standard Tellez did not

have the incentive to contest at the time of his sentencing hearing. (See Sandoval, supra,

41 Cal.4th at p. 839 [incentive and opportunity to contest aggravating circumstances

mentioned in probation report not necessarily the same as if they had been tried to jury].)

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We cannot conclude beyond a reasonable doubt the jury unquestionably

would have found true two of the aggravating circumstances here. Thus, we vacate

Tellez’s sentence and remand for further proceedings. Before resentencing, the trial court

must give the prosecution an opportunity to elect whether to accept resentencing on the

current record or seek upper term sentences in compliance with newly amended section

1170, subdivision (b). Either way, the court shall conduct a “‘full resentencing’” on

remand (People v. Buycks (2018) 5 Cal.5th 857, 893), including applying the terms of

other applicable ameliorative legislation that became effective January 1, 2022. We

express no view as to how the trial court should exercise its discretion.

II. Testing Order Under Section 1202.1

Tellez asserts, and the Attorney General concedes, the trial court erred by

ordering him to undergo acquired immune deficiency syndrome (AIDS) testing under

section 1202.1. We agree.

There is a general statutory proscription against involuntary AIDS testing.

(Health & Saf. Code, § 120990, subds. (a), (c); People v. Butler (2003) 31 Cal.4th 1119,

1125.) However, a trial court must order AIDS testing for anyone convicted of a sex

offense as defined by section 1202.1, subdivision (e) (id., subd. (a)), and may order it in

various other circumstances (id., subd. (e)(5)). But Tellez was not convicted of any of

the qualifying offenses listed in the statute, and none of the other circumstances apply.

Therefore, the trial court did not have the authority to order him to submit to testing

under section 1202.1. (People v. Jillie (1992) 8 Cal.App.4th 960, 962-963.) We vacate

the AIDS testing order and direct the trial court on remand for resentencing to issue a

new minute order and amended abstract of judgment deleting the order requiring AIDS

testing under section 1202.1.

DISPOSITION

Tellez’s sentence is vacated, and the matter is remanded for further

proceedings consistent with this opinion. The prosecution shall have an opportunity to

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elect whether to proceed with proving the circumstances in aggravation under newly

amended section 1170, subdivision (b), or accept resentencing on the current record. At

resentencing, the trial court is directed to apply all applicable, newly enacted ameliorative

legislation. Upon resentencing, the trial court is directed to issue a new minute order and

amended abstract of judgment excising the order requiring AIDS testing under section

1202.1. In all other respects, the judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.

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