People v. Victoria CA5

Filed 6/23/23 P. v. Victoria CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F083538 Plaintiff and Respondent, (Super. Ct. No. MF013928A) v.

RICHARD VICTORIA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Meehan, J. and Snauffer, J.

Defendant Richard Victoria contends on appeal that (1) his sentence must be vacated and remanded for resentencing because Assembly Bill No. 124 (2021–2022 Reg. Sess.) (Assembly Bill 124) and Senate Bill No. 567’s (2021–2022 Reg. Sess.) (Senate Bill 567) amendments to Penal Code section 11701 must be applied to his case. The People agree, as do we. We vacate defendant’s sentence and remand for resentencing in light of amended section 1170. In all other respects, we affirm the judgment. PROCEDURAL SUMMARY On August 28, 2020, the Kern County District Attorney filed an information charging defendant with sexual intercourse/sodomy with Jane Doe,2 a child under 10 years of age (§ 288.7, subd. (a); count 1); oral copulation/sexual penetration of a child under 10 years of age (§ 288.7, subd. (b); counts 2 through 7); lewd or lascivious acts with a child under 14 years of age (§ 288, subd. (b)(1); count 8); knowingly inducing, persuading, or coercing a child under 18 years of age to participate in the production of pornography for commercial purposes (§ 311.4, subd. (b); counts 9 through 12); and distribution of child pornography (§311.1, subd. (a); count 13). On August 31, 2020, defendant pleaded not guilty to all charges. Subsequently, on May 28, 2021, the information was amended to allege counts 1 through 13 occurred on or between September 7, 2018 and September 7, 2019. On June 9, 2021, the cause was submitted to the jury. Later that day, the jury found defendant guilty of all charges. On November 3, 2021, the trial court denied probation and sentenced defendant to a total prison term of 129 years 8 months to life (115 years indeterminate, plus 14 years 8 months determinate) as follows: on count 1, 25 years to life; on counts 2 through 7,