People v. Gonzalez-Rivas CA3

Filed 7/16/25 P. v. Gonzalez-Rivas CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C095034

v. (Super. Ct. No. 19FE012600)

ISMAEL GONZALEZ-RIVAS, ON TRANSFER Defendant and Appellant.

A jury found defendant Ismael Gonzalez-Rivas guilty of committing lewd and lascivious acts on a child and possessing child pornography. The trial court imposed a sentence that included the upper term of eight years on one of the counts. On appeal, defendant claimed (1) the trial court committed instructional error, and (2) the case must be remanded for resentencing because the trial court’s imposition of the upper term sentence did not satisfy the requirements of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567). In an unpublished opinion, this court affirmed the judgment, concluding that the instructional error challenge lacked merit and the trial court’s consideration of the aggravating circumstances, while inconsistent with Senate Bill 567’s requirements, was

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harmless error. (People v. Gonzalez-Rivas (Mar. 10, 2023, C095034) [nonpub. opn.].) This court also corrected errors in the abstract of judgment. (Ibid.) The California Supreme Court granted review and ordered this court to vacate its decision and reconsider the cause in light of People v. Lynch (2024) 16 Cal.5th 730 (Lynch). Having done so, we will affirm defendant’s convictions but remand the matter for a full resentencing. BACKGROUND Every other night for approximately three years, defendant sexually abused minor J.D. while living at his house. Defendant told J.D. not to tell anyone about the sexual abuse. Defendant subsequently moved to a house where minor D.D. lived. Defendant sexually abused D.D. every night over a two-year period. When defendant moved to a different room in the house, he would tell D.D. to come to his room, where defendant would have adult or child pornography playing. Defendant would have D.D. mimic the videos. D.D.’s family eventually moved to a different city, but when they would return to town, defendant would continue his abuse of D.D. D.D. eventually disclosed the sexual abuse to law enforcement, and law enforcement later spoke with J.D. Law enforcement searched defendant’s home and found sexually explicit images and videos of minors. The jury found defendant guilty of 18 counts of lewd and lascivious acts on a child under the age of 14 years old (Pen. Code, § 288, subd. (a)1 -- counts one through eleven and fifteen through twenty-one), three counts of lewd and lascivious acts on a child 14 or 15 years old (§ 288, subd. (c)(1) -- counts twelve through fourteen), and one count of