People v. Lopez CA3

Filed 12/20/24 P. v. Lopez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C098643

Plaintiff and Respondent, (Super. Ct. No. 19FE019315)

v.

RUBEN LOPEZ,

Defendant and Appellant.

A jury found defendant Ruben Lopez guilty of 23 sexual offenses against two girls. The trial court imposed the upper term for 15 of the offenses and sentenced Lopez to 167 years to life in prison. On appeal, Lopez challenges the court’s selection of the upper term, contending that the court relied on inapplicable aggravating factors, failed to enumerate and explain its analysis of mitigating circumstances, and made improper dual use of facts. We conclude that Lopez forfeited these claims by failing to raise them in the trial court. We therefore affirm the judgment.

1

BACKGROUND The jury found Lopez guilty of one count of rape of a child under 14 (Pen. Code, § 269, subd. (a)(1)); nine counts of lewd or lascivious acts upon a child under 14 by force or fear (§ 288, subd. (b)(1)); eight counts of lewd or lascivious acts upon a child under 14 (§ 288, subd. (a)); and five counts of forcible rape (§ 261, subd. (a)(2)).1 For each offense, the jury found true four aggravating circumstances: (1) the victim was particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)); (2) Lopez took advantage of a position of trust or confidence to commit the offense (rule 4.421(a)(11)); (3) Lopez engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); and (4) Lopez committed a sexual assault offense against more than one victim (§ 1203.066, subd. (a)(7)).2 At sentencing, Lopez asked the trial court to consider three mitigating factors: (1) his early admission of wrongdoing—an early confession that he recanted at trial; (2) his poor health; and (3) his low risk of reoffending as determined by a probation department risk assessment. Based on these mitigating factors, Lopez urged the court not to impose consecutive sentences. The trial court sentenced Lopez to 15 years to life in prison for rape of a child (§ 269, subd. (a)(1)). The court selected the upper term of eight years in prison for the first count of lewd or lascivious acts upon a child under 14 (§ 288, subd. (a)), plus consecutive two-year sentences (one-third the middle term) for the other seven similar counts. The court imposed full consecutive upper term sentences of 10 years in prison for nine counts of lewd or lascivious acts upon a child under 14 by force or fear (§ 288, subd. (b)(1)) and full consecutive upper term sentences of eight years in prison for five