People v. Gamez CA2/6

Filed 2/20/25 P. v. Gamez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B333917 (Super. Ct. No. CR39965) Plaintiff and Respondent, (Ventura County)

v.

JUAN JOSE GAMEZ,

Defendant and Appellant.

Juan Jose Gamez appeals the trial court’s Penal Code section 1172.75 resentencing order.1 We conclude that the court may consider factors in aggravation and mitigation to support a middle-term sentence, and affirm. (People v. Hilburn (2023) 93 Cal.App.5th 189, 204 [imposition of the middle term at resentencing does not require aggravating circumstances be proven beyond a reasonable doubt]; People v. Bautista-Castanon (2023) 89 Cal.App.5th 922, 929 [same].)

1 All statutory references are to the Penal Code unless

stated otherwise.

This appeal concerns resentencing of Gamez’s conviction of spousal rape and assault with a semiautomatic firearm, among other crimes and findings, due to a now-invalid prior prison term enhancement. (§ 667.5, subd. (b).) At resentencing, the trial court struck the one-year prison term enhancement and imposed a middle-term sentence rather than a requested lower-term sentence for the assault with a firearm conviction. Gamez appeals and challenges the sentence as a violation of his Sixth Amendment constitutional right to a jury trial. He asserts that the middle-term sentence rests upon aggravating factors to which he neither stipulated nor were found true beyond a reasonable doubt by a trier of fact. FACTUAL AND PROCEDURAL HISTORY2 L.L. and Gamez were married with two children but had separated. Following his release from prison for a drug conviction, Gamez entered L.L.’s bedroom as she slept. Thereafter, he raped L.L., repeatedly threatened to kill her, grabbed her by her neck, forced his firearm inside her mouth, and held her captive for nearly eight hours. Gamez’s four-year-old daughter was inside L.L.’s bedroom and awake at times during the ordeal. A jury convicted Gamez of spousal rape, assault with a semiautomatic firearm, false imprisonment, and criminal threats. (Former § 262, subd. (a)(1); §§ 667.61, subd. (e)(4), 245, subd. (b), 236, 422.) The jury also found that Gamez personally used a