Filed 8/26/20 P. v. Figueroa CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

 THE PEOPLE,
                                                                                             F077514
           Plaintiff and Respondent,
                                                                               (Super. Ct. No. VCF331062)
                    v.

 AURELIO MORENO FIGUEROA,                                                                 OPINION
           Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
          Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Aurelio Moreno Figueroa was convicted of seven crimes related to sexually
abusing a minor. The prosecution pled and proved two crimes violated California’s One
Strike Law. (Pen. Code, § 667.61.)1 Depending on the circumstances pled and proven,
the One Strike Law mandates a sentence of either 15 years to life, 25 years to life, or life
without the possibility of parole. (§ 667.61, subds. (a), (b), (j), (l), & (m).)
       Figueroa was sentenced to serve several consecutive sentences, including two 15-
years-to-life sentences under the One Strike Law. He contends the court erred in
pronouncing judgment because the court stated no reason for its decision to impose
consecutive sentences that were not otherwise mandatory. On this basis, he seeks a new
sentencing hearing.
       The People likewise seek a new sentencing hearing but for a different reason.
They contend the court erroneously imposed less severe punishment than required by the
One Strike Law. They request a new sentencing hearing for the trial court to properly
impose the greater sentence.
       We conclude the People are correct, rendering Figueroa’s claims moot. We will
vacate the sentence and remand for a new sentencing hearing. In so doing, we determine
an increase in sentence does not violate double jeopardy principles and the pleadings
adequately advised of the maximum potential punishment.
                                      BACKGROUND
Charges
       The Tulare County District Attorney charged Figueroa with committing seven
crimes. Counts 1 and 2 charged violations of section 288, subdivision (b)(1), forcible
lewd act on a victim under 14 years old. Each count included a special allegation the
crimes involved binding and tying the victim within the meaning of section 667.61,
subdivisions (a), (b), and (e).



1      All statutory references are to the Penal Code.

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         Counts 3, 4, and 5 charged violations of section 288, subdivision (a), lewd act on a
victim under 14 years old. Counts 4 and 5 included a special allegation the crimes
involved substantial sexual conduct within the meaning of section 1203.066, subdivision
(a)(8).2
         Count 6 charged a violation of section 136.1, subdivision (b)(2), dissuading a
witness from participating with the prosecution. Count 7 charged a violation of section
273.6, subdivision (a), disobeying a domestic relations court order.
Trial Evidence
         The victim testified Figueroa assaulted her while she was sleeping in her bed.
After binding her wrists with window curtains and electrical cords, he attempted to
penetrate her and grabbed her breast. DNA samples taken near the victim’s genitalia
matched Figueroa’s DNA profile.
         The victim also testified to two other incidents involving Figueroa. In one
incident, he carried her to bed and, while lying down with her, grabbed her breast. In the
other incident, he placed his hand atop her clothes near her vagina. After she removed
his hand, he replaced it.
         After Figueroa was arrested, he wrote several letters to the victim’s mother. In the
letters he variously stated that not cooperating with the prosecution would benefit his
case.3
Verdicts and Sentence
         Figueroa was convicted as charged. All special allegations were found true. He
was sentenced to serve 40 years eight months to life in prison as follows: count 1, 15




2        This special allegation renders a person ineligible for probation.
3        Before trial, Figueroa pled no contest to count 7, disobeying a domestic relations
order.

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years to life; count 2, 15 years to life; count 3, six years; count 4, two years; count 5, two
years; count 6, eight months.4
                                         DISCUSSION
           The People’s request to increase Figueroa’s sentence upon remand raises two
constitutional issues: Double jeopardy and due process. We address each in turn.
I.         Double Jeopardy Is Not Implicated
           Under the One Strike Law, enumerated sex crimes committed under specific
circumstances are punished by life imprisonment. (§ 667.61.) The minimum sentence
under the One Strike Law is 15 years to life. (§ 667.61, subd. (b).) When a victim is
under 14 years old, the minimum punishment is instead 25 years to life. (§ 667.61, subd.
(j)(2).)
           Pursuant to the One Strike Law, the court here sentenced Figueroa to serve 15
years to life in prison for each section 288, subdivision (b) conviction (counts 1 and 2).
This sentence is error because the victim was under 14 years old. Indeed, all victims of
section 288, subdivision (b) are necessarily under 14 years old. The correct punishment
is “imprisonment in the state prison for 25 years to life.”5 (§ 667.61, subd. (j)(2).)
           “An unauthorized sentence is subject to correction when it comes to the attention
of the reviewing court.” (People v. Tua (2018) 18 Cal.App.5th 1136, 1140.) “‘The
unauthorized sentence exception is “a narrow exception” to the waiver doctrine that
normally applies where the sentence “could not lawfully be imposed under any
circumstance in the particular case,” for example, “where the court violates mandatory
provisions governing the length of confinement.”’” (People v. Turrin (2009) 176
Cal.App.4th 1200, 1205.) The “sentence can be corrected at any time.” (Ibid.)



4          No time was imposed on count 7.
5      Section 667.61, subdivision (j)(1) provides for imprisonment for life without the
possibility of parole under circumstances not applicable to this case.

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       Ordinarily, “[w]hen a defendant successfully appeals a criminal conviction,
California’s constitutional prohibition against double jeopardy precludes the imposition
of more severe punishment on resentencing.” (People v. Hanson (2000) 23 Cal.4th 355,
357.) But “[t]he rule is otherwise when a trial court pronounces an unauthorized
sentence. Such a sentence is subject to being set aside judicially and is no bar to the
imposition of a proper judgment thereafter, even though it is more severe than the
original unauthorized pronouncement.” (People v. Serrato (1973) 9 Cal.3d 753, 764,
disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572.)
       The sentence in this case was unauthorized. The Legislature prescribed mandatory
sentences for crimes involving the circumstances in this case. Any deviation from the
mandatory sentence is unauthorized. (See § 667.61, subd. (g) [no discretion to strike
special allegation]; In re Vaquera (2019) 39 Cal.App.5th 233, 244-245, review granted
November 26, 2019, S258376 (Vaquera) [One Strike sentence is mandatory].)




                                             5
Accordingly, correcting the sentence does not implicate double jeopardy.6 (People v.
Vizcarra (2015) 236 Cal.App.4th 422, 436-438.)
II.    Due Process Is Satisfied
       While we conclude an increased sentence upon remand in this case would not
violate double jeopardy principles, due process concerns present a distinct issue. The
issue is currently under review in the Supreme Court in Vaquera, supra, 39 Cal.App.5th
233, and People v. Zaldana (2019) 43 Cal.App.5th 527, review granted March 18, 2020,
S259731 (Zaldana).
       “A defendant has a due process right to fair notice of the allegations that will be
invoked to increase the punishment for his or her crimes. [Citation.] To the extent



6      Figueroa’s consecutive sentencing claim is moot by virtue of our decision to
remand the matter for a new sentencing hearing. We express no opinion on whether
concurrent or consecutive sentences are ultimately appropriate but note the following.
The trial court must comply with section 667.61, subdivision (i), which mandates “a
consecutive sentence for each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on separate occasions.” “In
determining whether crimes against a single victim were committed on separate
occasions … the court shall consider whether, between the commission of one sex crime
and another, the defendant had a reasonable opportunity to reflect upon his or her actions
and nevertheless resumed sexually assaultive behavior. Neither the duration of time
between crimes, nor whether or not the defendant lost or abandoned his or her
opportunity to attack, shall be, in and of itself, determinative on the issue of whether the
crimes in question occurred on separate occasions.” (§ 667.6, subd. (d).) “[M]ultiple sex
offenses occur[] on a ‘single occasion’ … if there [is] a close temporal and spatial
proximity between offenses.” (People v. Jones (2001) 25 Cal.4th 98, 100-101.) The
court must also comply with rules 4.406 and 4.425 of the California Rules of Court. (See
People v. Henderson (2020) 46 Cal.App.5th 533, 553 [“If the court elects consecutive
sentences it must state reasons for its decision.”].)
       It is worth noting the trial court may ultimately impose a less severe total sentence.
For example, if the court upon remand concludes concurrent sentences on counts 1 and 2
are appropriate, the total sentence will necessarily decrease. Neither party contends this
possibility renders the issue not ripe for decision. We conclude remand to the trial court
to impose a more severe sentence on any individual count is sufficient to present an issue
ripe for decision.

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[Figueroa] contends he was not provided adequate notice of the punishment he faced, we
are not persuaded.” (People v. Houston (2012) 54 Cal.4th 1186, 1227.)
       The information in this case alleged a special allegation pursuant to section
667.61, subdivisions (a), (b), and (e), and listed the circumstance of “tying or binding.”
Section 667.61, subdivision (a) prescribes punishment of 25 years to life. This alone
constituted adequate notice of a potential 25-years-to-life sentence.
       More importantly, section 667.61, subdivision (b) prescribes punishment of 15
years to life “[e]xcept as provided in subdivision … (j).” Subdivision (j) in turn clearly
states that when the victim is under 14 years old, the punishment is 25 years to life.
(§ 667.61, subd. (j)(2).) Because subdivision (b) clearly, directly, and immediately
references subdivision (j), the subdivisions are necessarily read in conjunction.
(Vaquera, supra, 39 Cal.App.5th at p. 242 [“The 25-year-to-life [sentence] was
effectively noted in the information by reference to section 667.61, subdivision (b),
which specifically references, in its introductory clause, section 667.61, subdivision (j),
as an exception to its provisions.”]; Zaldana, supra, 43 Cal.App.5th at p. 535 [same].)
No other conclusion is reasonable.
       We recognize the Sixth District held otherwise in People v. Jimenez (2019) 35
Cal.App.5th 373. The court there held the reference in the information to section 667.61,
subdivision (b) was inadequate to notify the defendant the potential sentence was 25
years to life. (People v. Jimenez, supra, at pp. 395-398.) We disagree with Jimenez for
two reasons.
       First, the information here referenced both section 667.61, subdivisions (a) and
(b). Subdivision (a) states the punishment is 25 years to life, albeit in circumstances
ultimately neither pled nor proved. Second, the Jimenez court “overlooked a critical fact:
subdivision (b) itself refers to subdivision (j).” (Zaldana, supra, 43 Cal.App.5th at p.
535.) As explained above, subdivisions (b) and (j) are necessarily read in tandem.



                                              7
       The prosecution here pled and proved the circumstances necessary to prove the
special allegations. (§ 667.61, subd. (o) [“The penalties provided in this section shall
apply only if the existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is either admitted by the
defendant in open court or found to be true by the trier of fact.”].) Because the pleadings
appropriately referenced the applicable circumstance, Figueroa was afforded adequate
notice that 25 years to life was a potential sentence upon conviction.7 8
                                        DISPOSITION
       The sentence is vacated. We remand to the trial court to conduct a new sentencing
hearing consistent with this opinion.



                                                                                  SMITH, J.
WE CONCUR:



DETJEN, Acting P.J.



MEEHAN, J.




7      We further note that moments after the verdicts were read and recorded,
Figueroa’s counsel stated, “He’s looking at about a hundred to life.” Although counsel’s
statement constituted both a gross overestimation and oversimplification, it nonetheless
sheds light on whether notice in the pleadings was constitutionally adequate.
8      Figueroa raised an additional claim relating to his inability to pay fines and fees
imposed as part of his sentence. (See People v. Dueñas (2019) 30 Cal.App.5th 1157.)
This claim is moot as he may raise it in the trial court upon remand.

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