89 Cal.App.5th 922
Cal. Ct. App.2023Background
- Defendant Marvyn Osbeli Bautista-Castanon was convicted by jury of sexual penetration of a child 10 or younger (Pen. Code § 288.7(b)) and a lewd act on a child under 14 (§ 288(a)); jury also found substantial sexual conduct as to the § 288 count (triggering § 1203.066).
- At sentencing the court imposed 15 years-to-life on count 1 and (after a nunc pro tunc correction) imposed and stayed the upper eight-year term on count 2 under former § 654.
- The court selected the upper term for count 2 based on several aggravating factors (cruelty, position of trust, victim vulnerability, planning, lack of remorse) and found one mitigating factor (no priors).
- Defendant appealed, and while the conviction is not final the Legislature enacted multiple sentencing reforms effective Jan. 1, 2022 (notably AB 518 amending § 654; SB 567 amending § 1170; SB 81/AB 200 affecting § 1385 and enhancement-striking).
- The Court of Appeal affirmed the convictions but vacated the sentence and remanded for full resentencing so the trial court can apply the amended statutes and reconsider term selection, concurrent/stayed treatment, fines/fees, custody credits, and mitigating factors (including youth/trauma).
Issues
| Issue | People (Respondent) Argument | Bautista-Castanon Argument | Held |
|---|---|---|---|
| Does AB 518 (§ 654) require resentencing? | AB 518 applies retroactively to nonfinal convictions; remand for resentencing under amended § 654. | Agrees resentencing necessary. | Remand required for resentencing; full resentencing permitted so court may reconsider principal term, stay, and execution. |
| Does SB 567 (§ 1170) affect upper-term selection and require proof to a jury? | SB 567 applies retroactively; prosecution may elect jury proof of aggravating facts or accept resentencing on the record. | Contends some aggravating facts used to impose upper term do not meet new proof requirements; argues jury must decide aggravation in §1170(b)(6) balancing. | Remand required; prosecution may elect jury proof or accept existing record. §1170(b)(2) jury-proof rule applies to upper-term facts only; the (b)(6) youth/trauma balancing does not require jury proof. |
| Can the court strike the §1203.066 substantial-sexual-conduct finding under amended §1385 to make defendant eligible for probation? | §1385(c) amendments govern enhancement dismissal but cannot override statutes that expressly prohibit striking. | Argues amended §1385 allows striking the finding and granting probation. | Court cannot strike the §1203.066 finding here: §1203.066(a)(8) expressly bars granting probation and bars striking the finding under §1385. |
| Must the court impose the lower term when youth/trauma contributed under §1170(b)(6)? | SB 567 creates a presumption in favor of the lower term when youth/trauma contributed; sentencing court should consider it on remand. | Argues youth/trauma entitles him to lower term or requires specific proof standard. | Defendant may urge youth/trauma mitigation at resentencing; court must follow §1170(b)(6) framework but is not directed by this court to adopt specific weight—trial court performs the balancing and may impose middle term if aggravators outweigh mitigators. |
| Are fines/fees and ability-to-pay issues resolved now? | Resentencing will occur under current law; defendant may argue inability to pay. | Seeks vacatur of certain fines/fees under §1465.9 and Dueñas/ability-to-pay protections. | Sentence vacated; trial court on remand will determine what fines/fees are authorized under current law and consider inability to pay. |
| Should custody credits be recalculated based on May 4 correction? | Trial court imposed sentence April 30; May 4 entry corrected error but did not reimpose sentence; credits as of sentencing date govern. | Asks court to direct recalculation to reflect additional days in custody by May 4. | Court declines to change characterization: sentence was imposed April 30; calculation of credits left to the trial court on remand. |
Key Cases Cited
- People v. Jones, 79 Cal.App.5th 37 (Cal. Ct. App. 2022) (AB 518’s § 654 amendment gives trial court discretion to select which term to impose and execute; supports remand).
- People v. Buycks, 5 Cal.5th 857 (Cal. 2018) (where intervening legislative changes alter sentencing law, courts should conduct full resentencing).
- People v. Lopez, 78 Cal.App.5th 459 (Cal. Ct. App. 2022) (prosecution may elect jury proof of aggravating facts or accept resentencing on the existing record under SB 567).
- People v. Flores, 73 Cal.App.5th 1032 (Cal. Ct. App. 2022) (SB 567 ameliorative changes apply retroactively to nonfinal convictions).
- People v. Vieira, 35 Cal.4th 264 (Cal. 2005) (convictions are not final while appeal is pending; retroactive relief may apply).
- People v. Dueñas, 30 Cal.App.5th 1157 (Cal. Ct. App. 2019) (ability-to-pay principles apply to imposition of certain fines and fees).
- In re Martinez, 30 Cal.4th 29 (Cal. 2003) (distinguishes presentence and postsentence custody credits and the governing credit formulas).