# People v. Tellez CA4/3

> California Court of Appeal · May 2, 2022

URL: https://www.frixlaw.com/law-library/cases/6337116

## Case

- **Court:** California Court of Appeal
- **Decided:** May 2, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

3
(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

4
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

5
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].)

6
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

7
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.

8

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6337116. Public record. Not legal advice.