People v. Gonzalez-Alvarez CA1/1

Filed 3/12/26 P. v. Gonzalez-Alvarez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent, A171622 v. (Sonoma County Super Ct. FERNANDO JAVIER GONZALEZ- No. SCR7583331) ALVAREZ, Defendant and Appellant.

MEMORANDUM OPINION1 After Fernando Javier Gonzalez-Alvarez pleaded no contest to lewd conduct with a child under 14 years old (Pen. Code,2 § 288, subd. (a)) and oral copulation with a child under 16 years old (§ 287, subd. (b)(2)), the superior court sentenced him to six years’ imprisonment, based on a six-year midterm sentence for the lewd conduct and a concurrent two-year midterm sentence for the copulation. In this appeal, Gonzalez-Alvarez argues that because he had made a showing of childhood trauma sufficient to trigger the lower-term presumption set forth in section 1170, subdivision (b)(6), the superior court

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We provide a limited factual summary because our opinion is unpublished and the parties know, or should know, “the facts of the case and its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.) 2 All statutory references are to the Penal Code.

1

abused its sentencing discretion by imposing a midterm sentence in the absence of any indication that the superior court was aware of that subdivision’s requirements. We agree, so we will reverse the judgment and remand the matter for a new sentencing hearing.3 In relevant part, section 1170, subdivision (b)(6), provides that “unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if . . . the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.” Here, as the Attorney General concedes, Gonzalez-Alvarez “made a sufficient showing” in this respect, thus “trigger[ing] the lower term presumption.” The contested issue, then, is whether the superior court actually found “that the aggravating circumstances outweigh[ed] the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.” (Ibid.) On the present record, we cannot conclude the court made that finding. First, the court did not expressly conduct the inquiry that would allow such a finding to be made: The court neither referred to section 1170, subdivision (b)(6), nor invoked its language. Second, the record does not “ ‘affirmatively’ show compliance with [the] statutory sentencing mandate,” as is required when the court has not expressly complied. (People v. Fredrickson (2023) 90 Cal.App.5th 984, 991 [“the record must ‘affirmatively’ show compliance