California Court of Appeal Jan 5, 2026 No. E085388Unpublished
Filed 1/5/26 P. v. Sanchez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085388
v. (Super.Ct.No. FVI21001163)
OCTAVIANO MENDOZA SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shannon L. Faherty,
Judge. Affirmed with directions.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton,
Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Octaviano Sanchez appeals following a resentencing
hearing whereby the trial court resentenced him to the middle term of 18 years four
months in state prison. On appeal, defendant contends the trial court prejudicially
violated his Sixth Amendment right to a jury trial on the aggravating factors by imposing
the middle term, over the presumed low term. He also argues the abstract of judgment
should be corrected to reflect the court reduced his mandatory assessments due to his
inability to pay. We direct the trial court to correct its resentencing minute order and to
amend the abstract of judgment. Otherwise, we affirm the trial court’s resentencing
order.
II.
FACTUAL AND PROCEDURAL BACKGROUND1
At the time of the incident, A.R. had been dating defendant for about a year. A.R.
went to visit her storage locker with her ex-boyfriend, O.B., who was going to help her
carry items to the locker and take a bicycle in the locker that A.R. no longer wanted.
While they were at the storage facility, defendant appeared and began yelling at O.B. He
accused A.R. of cheating on him with O.B., went to his vehicle, and returned with a 19-
inch brush axe. O.B. pulled out a small hatchet from his waistband to defend himself, but
1 The factual background and part of the procedural background is taken from this court’s unpublished opinion following defendant’s direct appeal in case No. E079995. (See People v. Sanchez (Nov. 30, 2023, E079995) [nonpub. opn.] (Sanchez I).)
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he dropped it when defendant swung at him. Defendant punched O.B. and struck him
with the axe multiple times in the head, then punched A.R. in the face. After he was
taken to the hospital, O.B. received 19 staples on the back of his head. When police
arrested defendant three days later, they found a .22 caliber small pocket derringer in his
vehicle. (Sanchez I, supra, E079995.)
A jury convicted defendant of attempted murder (Pen. Code,2 §§ 664, 187,
subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2),
possessing a firearm as a felon (§ 29800, subd. (a)(1); count 3), possessing a concealed
firearm in a vehicle (§ 25400, subds. (a)(1), (c)(1); count 4), and misdemeanor domestic
battery (§ 243, subd. (e)(1); count 6). As to counts 1 and 2, the jury found true the
enhancement allegation that O.B. suffered great bodily injury (§ 12022.7, subd. (a)). The
trial court later found true the allegation that defendant had suffered a strike prior
The trial court imposed a total aggregate sentence of 23 years four months,
calculated as follows: 18 years for count 1 (the upper term of 9 years, doubled because of
the strike prior), plus 3 years for the great bodily injury enhancement alleged as to that
count, 16 months for count 3 (1/3 the midterm of 2 years, doubled because of the strike
prior), and 365 days for the misdemeanor domestic battery. Counts 2 and 4, as well as
the enhancement alleged as to count 2, were stayed under section 654. The court also
imposed fines and assessments totaling $580. (Sanchez I, supra, E079995.)
2 All future statutory references are to the Penal Code unless otherwise stated.
3
Defendant subsequently appealed, raising several challenges to his conviction and
sentence. (Sanchez I, supra, E079995.) In an unpublished opinion filed on November
30, 2023, we affirmed defendant’s judgment of conviction but remanded the matter for
resentencing. (Sanchez I, supra, E079995.)
Following remand, on August 8, 2024, defendant filed a resentencing brief on
remittitur. Defendant requested the trial court exercise its discretion and strike his prior
strike conviction pursuant to section 1385, dismiss the great bodily injury enhancement
attached to counts 1 and 2 under section 1385, subdivision (c), and stay the sentence on
count 4 per section 654. Defendant also requested that the court not impose any fines and
fees due to his indigency and objected to any such fines and fees in the absence of a
finding as to his ability to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas).
The resentencing hearing was held on January 10, 2025. At that time, the trial
court noted it would be conducting a “complete resentencing.” Before hearing from the
parties, the court indicated it had considered the People’s original sentencing brief from
2022, the defense’s original sentencing brief from 2022, the original probation officer’s
reports, this court’s 2023 unpublished opinion, and the defense’s August 2024
resentencing brief.
After the People indicated they were submitting, defense counsel told the court
that “originally, there was a biopsychosocial provided to the court.” While counsel could
not “remember if it was attached to the brief,” he asked “the court to consider the
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contents of that biopsychosocial as super mitigants and impose the low-term in light of
the super mitigants there.” The court responded “okay” and that it had “read and
considered that.”3
The court thereafter denied defendant’s motion to strike his prior strike conviction.
The court noted that although defendant’s strike prior was 18 years old, he had been
sentenced to prison four separate times in the intervening years. The court also explained
that defendant had also suffered a total of 15 prior felony convictions, defendant had two
parole violations, and the longest amount of time he had spent out of prison was
approximately three years. After finding defendant was ineligible for probation, the court
noted that the factors in aggravation in the probation report did “not consider the changes
in the law pursuant to 1172.1, requiring findings by the jury.” The court then stated, “the
court can find, and has previously found, that the defendant’s prior convictions as an
adult are numerous and of increasing seriousness, that there are prior prison terms that
have been served by the defendant, seven of them, that he has had prior unsatisfactory
performance on parole.” The court further explained that “[a]ll of those coming from the
certified rap sheet of the defendant. So while I am adopting those, I am not actually
imposing the upper term, but I am adopting them in order to adopt the middle term in this
case.” The court also declined defendant’s request to dismiss all but one of his
3 The biopsychological report is not in the appellate record. In response to this court’s augmentation order dated March 13, 2025, the clerk of the superior court submitted an affidavit stating as follows: “Upon further research of the case file, court case management system, and consultation with the public defender and the courtroom, the biopsychological report was referenced in error and does not exist. Therefore[,] an augmented transcript will not be prepared.”
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enhancements, finding that doing so would endanger public safety, and that there is a
likelihood dismissal of the enhancement would result in physical injury or a serious
danger to others. The court then imposed a total term of 18 years four months which
included a middle term sentence of 7 years for count 1, doubled because of the strike
prior to 14 years. The court also imposed “a $70 court security fee, $300 victim
restitution fine, as well as a $300 parole revocation restitution fine,” but stayed that fine
pending successful completion of parole.4 Defendant timely appealed.
III.
DISCUSSION
A. Imposition of Middle Term
Defendant challenges the sentence as a violation of his Sixth Amendment
constitutional right to a jury trial on the aggravating factors. 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. He believes that the low term
was the presumptive default in his case because he “has experienced psychological,
physical, or childhood trauma” that “was a contributing factor in the commission of the
offense.” (See § 1170, subd. (b)(6)(A).)
4 As to the fees, the court’s minute order of the January 10, 2025, resentencing hearing indicates “Const./court operations fee of $70 per conviction.” The amended March 12, 2025, abstract of judgment states a court operations assessment of “$160” per section 1465.8 and a conviction assessment of “$120” per Government Code section 70373. The court did not address defendant’s ability to pay the fines and fees under Dueñas, and defense counsel did not raise the issue at the time of the resentencing hearing.
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“Effective January 1, 2022, our determinate sentencing law, section 1170, was
amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.);
performance on parole. As the court explained, the evidence supporting these
aggravating factors was all found in defendant’s certified rap sheet.
Based on the foregoing, the trial court properly sentenced defendant to the middle
term and did not violate defendant’s Sixth Amendment right to a jury trial on the
aggravating factors by imposing the middle term.
B. Correction of Abstract of Judgment and Minute Order
Defendant contends the abstract of judgment and minute order of the January 10,
2025 resentencing hearing do not accurately reflect the trial court’s oral pronouncement
of judgment as to the fines and fees imposed. Specifically, he claims the abstract of
judgment and the resentencing minute order must be amended to reflect the fact that the
court imposed one single court operations assessment and one single court construction
fee. The People believe “[i]t is possible that by using the word ‘a’ the court meant to
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impose only one $70 court fee” and that “[i]t is also possible the court’s use of the word
‘a’ meant that it was imposing ‘a $70 court security fee’ for each count.”
A trial court must accurately set forth all fines and fees in the abstract of judgment.
(People v. High (2004) 119 Cal.App.4th 1192, 1200 [“If the abstract does not specify the
amount of each fine, the Department of Corrections cannot fulfill its statutory duty to
collect and forward deductions from prisoner wages to the appropriate agency”].)
At the time of the January 10, 2025, resentencing hearing, the trial court imposed
“a $70 court security fee, $300 victim restitution fine, as well as a $300 [stayed] parole
revocation restitution fine.” As to the fees, the court’s minute order of the January 10,
2025, resentencing hearing indicates “Const./court operations fee of $70 per conviction.”
The amended March 12, 2025, abstract of judgment states a court operations assessment
of “$160” per section 1465.8 and a conviction assessment of “$120” per Government
Code section 70373. While defense counsel argued for an ability to pay finding in his
resentencing motion, the court did not address defendant’s ability to pay the fines and
fees under Dueñas, and defense counsel did not raise the issue at the time of the
resentencing hearing. However, it appears the trial court implicitly found defendant had
the ability to pay for such a fee as to one count. As such, for the sake of judicial
economy, we will order the trial court to correct its January 10, 2025, resentencing
minute order and amend the abstract of judgment.
“Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
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v. Zackery (2007) 147 Cal.App.4th 380, 385.) We have the inherent power to correct
clerical errors so as to make records such as abstracts of judgment or minute orders
conform to the trial court’s oral pronouncement. (In re Candelario (1970) 3 Cal.3d 702,
705.) Thus, we are directing the court to amend the abstract of judgment to conform to
its oral pronouncement of judgment.
IV.
DISPOSITION
The clerk of the superior court is ordered to amend the January 10, 2025,
resentencing minute order and the abstract of judgment to reflect that the trial court
imposed a court construction fee in the amount of $30 (Gov. Code, § 70373, subd. (a))
and court operations fee in the amount of $40 (§ 1465.8, subd. (a)) for one count, totaling
$70. The superior court clerk shall prepare an amended minute order and abstract of
judgment and forward a copy of each to the Department of Corrections and
Rehabilitation. In all other respects, the trial court’s resentencing order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
RAMIREZ P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's middle-term sentence, holding that the imposition of a middle term under section 1170 does not require aggravating factors to be admitted or proven beyond a reasonable doubt. The court also ordered the correction of the minute order and abstract of judgment to accurately reflect the court's oral pronouncement regarding fines and fees.
Issues
Whether the trial court violated the Sixth Amendment by imposing a middle-term sentence without jury findings on aggravating factors.
Whether the trial court erred in its application of section 1170, subdivision (b)(6) regarding the presumption of a lower term.
Whether the abstract of judgment and minute order must be corrected to conform to the oral pronouncement of judgment regarding fines and fees.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“imposition of a middle-term sentence does not require aggravating factors to be admitted or proven beyond a reasonable doubt.”
“Subdivision (b)(6) of section 1170 does not implicate the Sixth Amendment jury trial guarantee because it creates a potential reduced term, not an increased term”
“Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.”