Applying SB 567 When Defendant Age 22, Sex Offense

In Sonoma County, in September 2019, a felony complaint was filed against Moises Flores, age 22, charging him with one count of a lewd act (kissing on the mouth) on a child under age 14, in violation of Penal Code § 288(a), and three counts of committing a forcible lewd act (touching the breasts, kissing the neck and biting the neck) on a child under age 14 in violation of Penal Code § 288(b).

According to the victim, he was drunk when he did these things and did not recall any of them.  He was the live-in boyfriend of the victim’s older sister, so he lived in the same house as the victim.

On March 5, 2020, Flores plead no contest to one count of committing a lewd act on a child under age 14 (Penal Code § 288(b)), which is a serious and violent felony within the meaning of Penal Code § 1192.7(c) and Penal Code § 667.5(c) (a “Strike” under California’s Three Strike Law). 

Flores’ plea was an open plea with a maximum term set at eight years.  The low term for a violation of 288(b) is three years, the mid-term is six years and high term is eight years.

In anticipation of sentencing, a probation officer interviewed Flores.  Flores declined to discuss the details with the probation officer but “accepted responsibility for what the victim reported occurred.”  He was remorseful, saying “I’m ashamed of myself.”  He denied being attracted to young girls and insisted he would not engage in such conduct again.

The probation department recommended that the court appoint an expert to evaluate Flores pursuant to Penal Code § 288.1 and Penal Code § 1203.067 to evaluate Flores for probation and whether he would be a danger to the public if placed on probation.  The doctor recommended him for probation and said he was “an excellent candidate for group treatment” and not likely to reoffend.

The probation department also recommended that Flores be granted probation for four years with condition that he serve 12 months in county jail and thereafter attend sexual impulsiveness classes.

At sentencing, the judge heard testimony from the victim’s parents, who described their daughter’s deep trauma from defendant’s conduct.  The prosecutor then asked the judge to sentence Flores to state prison in light of the forcible nature of the conduct.  Flores’ counsel requested that the judge sentence Flores to probation.

The judge then sentenced Flores to six years in state prison, which was the mid-term and imposed a lifetime obligation to register as a sex offender under Penal Code § 290,

On October 6, 2020, Flores filed an invitation to recall his sentence under Penal Code § 1170(d).  The judge denied the request and Flores appealed this to the First Appellate District Court.

The First Appellate District Court granted Flores’ request for resentencing, noting that effective January 1, 2022, Senate Bill 567 was passed, making the middle term of a sentencing triad the presumptive term unless certain circumstances exist. 

The bill also created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense.  This meant the judge in Flores’ case should have sentenced him to three years in state prison, unless certain aggravating factors are found, not six years, if probation was denied. 

As relevant in this case, Penal Code § 1170(b)(6) provides “[U]nless 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 any of the following was a contributing factor in the commission of the offense . . . (B) The person is a youth, or was a youth as defined under subdivision (b) of Penal Code § 1016.7 at the time of commission of the offense.”  A “youth” for purposes of 1016.7 includes any person under 26 years of age on the date the offense was committed.

Senate Bill 567 applies retroactively to all nonfinal convictions on appeal.  People v. Superior Court (Lara) (2018) 4 Cal. 5th 299, 308.

Accordingly, the First Appellate District vacated the six-year term and remanded the case to the trial court to decide whether Flores is entitled to the lower term “unless the aggravating circumstances outweigh the mitigating circumstances” such that imposition of the lower term would be contrary to the interests of justice.

The citation for the First Appellate District Court ruling discussed above is People v. Moises Flores (1st App. Dist., 2022) 73 Cal. App. 5th 1032, 288 Cal. Rptr. 3d 818.

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