People v. Sepulveda CA6

Filed 2/9/24 P. v. Sepulveda CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051142 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 18CR008296)

v.

AARON EUGENE SEPULVEDA,

Defendant and Appellant.

I. INTRODUCTION A jury convicted defendant Aaron Eugene Sepulveda of the following offenses: aggravated sexual assault of a child under the age of 14 by rape (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2); count 1),1 forcible rape of a child under the age of 14 (§ 261, subd. (a)(2); count 2), two counts of forcible lewd act on a child under the age of 14 (§ 288, subd. (b)(1); counts 3 & 9), sexual intercourse with a child aged 10 or younger (§ 288.7, subd. (a); count 4), three counts of lewd act on a child under the age of 14 (§ 288, subd. (a); counts 5, 13 & 14), sodomy with a child aged 10 or younger (§ 288.7, subd. (a); count 7), aggravated sexual assault of a child under the age of 14 by forcible oral copulation (§ 269, subd. (a)(4), former § 288a, subd. (c)(2); count 8), and two counts

1 All further statutory references are to the Penal Code.

of oral copulation with a child aged 10 or younger (§ 288.7, subd. (b); counts 10 & 12).2 The jury found true allegations that defendant personally inflicted great bodily injury (§ 12022.8) and personally inflicted bodily harm upon a child under the age of 14 (§ 667.61, subds. (d)(7) & (j)(1)) regarding counts 1 through 3. The jury also found true the allegation that defendant personally inflicted bodily harm (§ 288, subd. (i)) regarding count 5. The trial court sentenced defendant to prison for life without the possibility of parole, consecutive to 55 years to life, consecutive to eight years. The sentence was calculated as follows: life without the possibility of parole on count 2, a consecutive term of 25 years to life on count 7, a consecutive term of 15 years to life on count 8, a consecutive term of 15 years to life on count 12, and consecutive terms of six years on count 13 and two years on count 14. Pursuant to section 654, the trial court imposed and stayed the punishment on the following counts: life without the possibility of parole on counts 1 and 3, 25 years to life on count 4, seven years to life on count 5, nine years on count 9, and 15 years to life on count 10. In defendant’s first appeal from the judgment, he asserted among other contentions that this matter must be remanded for resentencing so the trial court may exercise its discretion under recently amended section 654 to determine which counts to stay. The Attorney General conceded the issue. Accordingly, this court reversed the judgment and remanded the matter for the trial court to apply the amended version of section 654 at resentencing, to correct the sentence on count 9 by selecting the eight-year middle term (§ 288, subd. (b)(1)), and to correct any errors in the abstract of judgment. (People v. Sepulveda (July 20, 2022, H049107) [nonpub. opn.].) This court’s opinion stated that upon remand, “the parties may address in the first instance whether amended section 654 applies to, for example, count 2,” noting a recent Court of Appeal decision that held a