People v. Gholar CA3

Filed 12/6/22 P. v. Gholar CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C093212

Plaintiff and Respondent, (Super. Ct. No. CR2020414)

v.

TAYLOR LEWIS GHOLAR,

Defendant and Appellant.

A jury found defendant Taylor Lewis Gholar guilty of two counts related to meeting with an underage girl for sex. (Pen. Code, §§ 288.3, 288.4.)1 Defendant contends his sentence to the middle term on both counts should be vacated and the matter remanded for the trial court to impose a sentence consistent with the changes to section

1 Further undesignated statutory references are to the Penal Code.

1

1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567). We shall remand for resentencing and otherwise affirm the judgment. BACKGROUND A detailed statement of the background of this case is unnecessary for determination of the issues on appeal. It suffices to say that N.M., a minor, d isclosed to her mother that she was receiving “weird” messages on Instagram from defendant, her former teacher. Her mother looked through N.M.’s phone and discovered messages of a sexual nature. Police were called and an officer reviewed messages where N.M. told defendant she was 12 years old and he asked if she would sneak out to have sex with him and send him nude photos. N.M.’s stepfather, pretending to be N.M., arranged a meeting with defendant. Before he left for the meeting, defendant sent N.M. an explicit photograph. When defendant arrived, he was arrested. A jury found defendant guilty of: (1) arranging and attending a meeting with a minor in order to engage in lewd conduct (§ 288.4; count one), and (2) contacting and communicating with a minor with intent to commit a lewd and lascivious act as specified in section 288 (§ 288.3; count two). The trial court referred the matter to the probation department for a report and recommendation and set a date for sentencing. As relevant here, the probation report stated that defendant “did not report suffering from any . . . mental health conditions” and recommended probation, citing the facts that defendant had no prior criminal record and appeared to be able to be successful in the community with appropriate supervision and counseling. The probation officer also submitted a sentencing memorandum, concluding that the factors in mitigation outweighed the factors in aggravation and recommending the lower base term if prison time were to be imposed, but continued to recommend probation. The People submitted a sentencing brief requesting the upper term.