People v. Penaloza CA4/3

Filed 5/20/22 P. v. Penaloza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G060553

v. (Super. Ct. No. 17NF1844)

JOSE MANUEL PENALOZA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Robert F. Somers, 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, Acting Chief Assistant Attorney General, Melissa Mandel and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Jose Manuel Penaloza appeals from the sentence imposed after his 1 conviction under Penal Code sections 261.5, 288a, and 288. He asserts that newly amended section 1170 applies to him, and his judgment was not final when the amendment went into effect. In addition, a new amendment to section 654 could have an ameliorative effect on his sentence. Accordingly, his sentence should be vacated and remanded for resentencing under the new laws. The Attorney General agrees, and we concur and return the matter to the trial court for resentencing. FACTS On May 21, 2021, Penaloza, age 36, was convicted of unlawful sexual intercourse (§ 261.5, subd. (d)), oral copulation with a minor under 16 (§ 288a, subd. (b)(2)), and lewd act upon a child (§ 288, subd. (c)(1)). He’d had sex with a 15-year-old girl. Penaloza was sentenced to three years (the middle term) on count 3, the unlawful sexual intercourse count, and two years on the other two counts, concurrent with the third count. DISCUSSION Penaloza makes two arguments on appeal. First, newly effective section 1170, subdivision (b)(6)(A), applies to him, and, second, his sentence under count 1 should have been stayed so that he could benefit from the amendment to section 654, subdivision (a). Section 1170, subdivision (b)(6)(A), became effective on January 1, 2022. The new subdivision provides, “Notwithstanding paragraph (1),[2] and 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