Filed 7/27/26 P. v. Tapia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085425
v. (Super.Ct.No. RIF2403307)
ARTHUR CHRISTOPHER TAPIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Raul A. Sahagun, Judge.
(Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6
of the Cal. Const.) Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Donald W. Ostertag and Sahar
Karimi, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Arthur Christopher Tapia of several offenses relating to a
domestic violence incident involving his girlfriend. On appeal, Tapia argues that the trial
court prejudicially erred by imposing an upper-term sentence on the basis of facts not
admitted or proven beyond a reasonable doubt. We affirm.
BACKGROUND
I. The charges
The information alleged that Tapia committed several offenses against his
girlfriend, Jane Doe, on February 11, 2024. The charged offenses include one count each
of torture (Pen. Code, § 206, count 1; unlabeled statutory references are to this code),
inflicting corporal injury on an intimate partner, with a qualifying prior conviction
(§ 273.5, subds. (a), (f)(1) (section 273.5(a) & section 273.5(f)(1)), count 2), false
imprisonment (§ 236, count 3), and violating a court order (§ 166, subd. (c)(1), count 4).
With respect to count 2, the People alleged that Tapia personally inflicted great bodily
injury on Doe. (§ 12022.7, subd. (e).)
The People also alleged the following four aggravating factors: (1) The offense
involved great violence, great bodily harm, or threat of great bodily harm (Cal. Rules of
Court, rule 4.421(a)(1); unlabeled rule references are to these rules); (2) Tapia was on
probation when the crimes were committed (rule 4.421(b)(4)); (3) his prior convictions
were numerous and of increasing seriousness (rule 4.421(b)(2)); and (4) his prior
performance on probation was unsatisfactory (rule 4.421(b)(5)).
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II. The trial
Doe’s mother testified about the incident that occurred on February 11, 2024,
which was a Sunday.1 At that time, Tapia and Doe had a two-year-old daughter and were
living together. Doe’s mother was visiting the couple’s home on February 11.
Tapia and Doe got into an argument that day about a former romantic partner of
Doe’s. Tapia yelled at Doe, and Doe “grabbed some bags to pack her stuff but [Tapia]
yanked it away.” Doe then ran toward a basket of children’s toys, which Tapia
“emptied.” Doe’s mother described Tapia as “very upset,” and she believed that Tapia
was “about to attack” Doe. Doe’s mother placed her body between Tapia and Doe.
Doe’s mother eventually called the police and told Tapia that she had done so. Tapia
“became upset,” “appeared afraid,” and left before law enforcement arrived.
Two days later, Doe called 911. A recording of the call was played for the jury.
Doe was at home with her daughter, and Tapia was inside the garage. Doe was “really
scared” and could not leave the house. She told the dispatcher that Tapia hit her on
Sunday and that there were outstanding warrants for his arrest. Law enforcement arrived,
detained Tapia, and took him into custody.
A sheriff’s deputy spoke with Doe, who was crying and appeared “visibly upset.”
Doe had visible injuries on her face, neck, and ear, which the deputy photographed. The
1 The prosecution called Doe as a witness at trial, but she invoked her Fifth
Amendment rights and refused to answer any questions, including whether she was
married to Tapia and whether he was present in the courtroom.
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deputy asked Doe what happened to her neck, and she said that Tapia “tried to pick me
up by my head” on Sunday.
III. The verdict
The jury found Tapia guilty of infliction of corporal injury (§ 273.5(f)(1), count 2),
false imprisonment (§ 236, count 3), and violating a court order (§ 166, subd. (c)(1),
count 4) and found true the great bodily injury allegation. During trial, the court granted
a defense motion to dismiss count 1.
Tapia admitted and the court found true that he suffered a prior conviction in 2023
for violating section 273.5(f)(1). Tapia waived his right to a jury trial on the four
aggravating factors. After the verdict was read and the jury was discharged, the court
scheduled the sentencing hearing and referred Tapia to the probation department.
IV. Probation revocation
During trial, the court granted the People’s request to consolidate the jury trial on
the current offenses with a bench trial to determine whether Tapia violated the terms of
his probation in two separate cases (case Nos. RIF2204216 & RIF2004007) based on the
evidence admitted at the jury trial. The record on appeal does not contain the notices of
probation violations in those cases, but it does include the complaints, plea agreements,
sentencing transcripts, and sentencing memoranda from those cases, as well as the
sentencing minute order in case No. RIF2204216.
In 2021, Tapia pled guilty to a felony violation of section 273.5(a) (case No.
RIF20040007) The trial court sentenced him to 120 days in custody, of which 119 days
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could be served on work release, plus 20 hours of community service and three years on
probation.
In 2023, Tapia pled guilty to a felony violation of section 273.5(f)(1) (case No.
RIF2204216). The trial court sentenced him to a suspended six-year prison term and
three years on probation.
After the trial in the present case, the trial court revoked probation in both
probation violation cases. Sentencing for the underlying convictions and the two
probation violation cases was consolidated.
V. Sentencing
The probation department recommended that Tapia be sentenced to the upper term
of five years on the corporal injury count (count 2) on the basis of numerous aggravating
factors, only four of which had been charged. The probation department concluded that
there were no mitigating factors.
The probation report includes a summary of Tapia’s “record of prior criminal
conduct, including convictions as an adult and sustained petitions in juvenile delinquency
proceedings.” (Rule 4.411.5(3).) The report states that Tapia had a misdemeanor
conviction in 2012 for corporal injury on an intimate partner (§ 273.5(a)), for which he
was sentenced to 28 days in jail and 36 months on probation (case No. INF1201513).
The report also listed Tapia’s felony convictions in 2021 and 2023 for violating section
273.5(a) and 273.5(f)(1), for each of which Tapia was sentenced to three years on
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probation (case Nos. RIF2004007 & RIF2204216). According to the report, Tapia had
no juvenile criminal adjudications and no strike convictions.
Tapia’s probation for the 2012 misdemeanor conviction was revoked twice, and in
both instances he admitted that he violated probation by failing to perform the ordered
community service hours. His probation for the 2021 conviction was revoked in 2022,
and he admitted that he violated probation by committing a new crime and by failing to
comply with a 52-week domestic violence program and the ordered community service
hours. In December 2023, it was alleged that Tapia violated his probation for both the
2021 conviction and the 2023 conviction by committing a new crime.
Both the prosecution and the defense filed sentencing briefs. The prosecution
argued that Tapia should be sentenced to an aggregate term of 13 years in state prison,
including upper terms on both the corporal injury count and the great bodily injury
enhancement. The prosecution argued that the sentence was warranted by the numerosity
and increasing seriousness of Tapia’s convictions for domestic violence. According to
the prosecution, the 2021 and 2023 felony convictions involved Doe, and the 2012
misdemeanor conviction involved a different victim.
Defense counsel argued that the trial court should impose an aggregate sentence of
seven years four months, with low terms for the corporal injury count and the great
bodily injury enhancement. With respect to the alleged aggravating factors, Tapia argued
that each of the four factors alleged in the information constituted elements of the
charged offenses, enhancements, and probation violations.
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At sentencing, the People provided the court with three certified prior conviction
packets from the 2012, 2021, and 2023 convictions identified in the probation report,
along with the certified California Law Enforcement Telecommunications System
(CLETS) rap sheet for Tapia. (Cal. Code Regs., tit. 15, § 3000.) The record on appeal
does not include those documents. The prosecution stated that the evidence had been
shown to defense counsel. Defense counsel did not object to introduction of the
evidence. The court stated that it received and reviewed the evidence for the purpose of
determining whether the aggravating factors were proven true for the corporal injury
count and the great bodily injury enhancement.
Doe and members of Tapia’s family made statements on his behalf. The court
gave both the prosecutor and defense counsel an opportunity to argue. The prosecution
submitted on its sentencing brief. Defense counsel argued in favor of a lower sentence on
the basis of the arguments in his sentencing brief and the family members’ statements to
the court. With respect to the false imprisonment offense (count 3), counsel argued that
the court should impose a concurrent sentence rather than a consecutive sentence because
the evidence supporting that conviction was “very limited.” Counsel also noted that the
probation report’s description of the evidence of false imprisonment was not accurate:
“The probation report refers to Count 3 something about him forcing the victim in the
shower after this incident. There was no evidence of that.”
After hearing argument, the court stated that it had reviewed “everything,”
including the briefs submitted by both counsel and letters submitted on Tapia’s behalf.
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The sentencing minute order states: “Court has read and considered Sentencing Briefs,
letters, Probation Report.”
Before imposing sentence, the court stated that it was struck by two things that it
considered “serious.” First, the court stated that Tapia had “done this” three times
previously, was first convicted of a misdemeanor and then twice convicted of felonies,
and was sentenced to probation each time. Second, the court stated: “He was given a 5-
year suspended sentence. 5 years hanging over his head, and yet he still did it again.
This time he did it in a very violent manner. He inflicted great bodily injury on the
victim. That can’t be ignored. I have to address that. [¶] The victim says he’s learning.
Well, I don’t know that he’s learning. He should have learned when he had five years of
prison over his head. He should have been walking on eggshells but, no, he didn’t. I
have no reason to believe he wouldn’t go out and do it again, and each one appears to be
more violent.” The court stated that even though it dismissed the torture count, the
underlying incident was “very violent” and that the “real violence” needed to “be
addressed.”
The court imposed an aggregate sentence of 11 years four months in state prison,
consisting of the upper term of five years for the corporal injury count, the midterm of
two years for the great bodily injury enhancement, and consecutives sentences of 16
months and one year for the probation violation cases (case Nos. RIF2204216 &
RIF2004007). In imposing the upper term on the corporal injury count, the court found
true the following three aggravating factors: (1) Tapia was on probation at the time of the
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offense; (2) Tapia’s prior performance on probation was unsatisfactory; and (3) Tapia’s
prior convictions were numerous and increasing in severity. The court stated that the
same aggravating factors provided “ample, ample evidence to select the high term” for
the great bodily injury enhancement, but the court chose to impose the midterm instead
because it believed that “the aggravated sentence is sufficient for punishment on this
offense.” The court also explained that it was imposing a consecutive sentence for case
No. RIF2204216 because “it is a separate event, separate occasion.”
DISCUSSION
Tapia contends that the trial court erred by imposing the upper term on the
corporal injury count based on facts not proven beyond a reasonable doubt. We disagree.
Subdivision (b)(2) of section 1170 (section 1170(b)(2)) “provides that the trial
court may impose a sentence exceeding the middle term only when circumstances in
aggravation of the crime justify imposition of an upper term sentence, and ‘the facts
underlying those circumstances have been stipulated to by the defendant or have been
found true beyond a reasonable doubt’ at a jury or court trial.’” (People v. Wiley (2025)
17 Cal.5th 1069, 1078 (Wiley).) Subdivision (b)(3) of section 1170 (section 1170(b)(3))
provides an exception to that requirement by allowing the court to “‘consider the
defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.’” (Wiley, at p. 1079.) But
the only facts that a court can find under section 1170(b)(3) are the “bare fact of a prior
conviction and its elements.” (Wiley, at p. 1086) Other aggravating circumstances
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related to the prior convictions, such as numerosity or increasing severity, are subject to
the requirements of section 1170(b)(2). (Wiley, at pp. 1082-1085.) “We review an
aggravating factor finding for substantial evidence.” (People v. Mendez-Torres (2025)
113 Cal.App.5th 1007, 1020.)
Tapia contends that the findings that his prior convictions were numerous and
increasingly serious and that he performed unsatisfactorily on probation “exceeded the
prosecution’s proof.” The argument is based on the faulty premise that the only evidence
that the court considered was the certified packets from his prior convictions and the
certified CLETS rap sheet. The record demonstrates otherwise.
At the sentencing hearing, the court stated that it “reviewed everything,” and the
sentencing minute order states that the court had read and considered the probation
report. Defense counsel referred to the probation report when arguing for a lower
sentence. Given the court’s oral statement that it “reviewed everything” and the
reference to the probation report in both the minute order and defense counsel’s
argument, the record shows that the trial court did not rely exclusively on the certified
records of conviction or the CLETS rap sheet in finding the aggravating factors true.
The probation report included a summary of Tapia’s criminal history, including
the sentences for his prior convictions and his admitted probation violations. The trial
court was permitted to consider the contents of the probation report in determining
whether Tapia’s crimes were numerous and increasingly serious and whether Tapia was
on probation when the current offenses were committed. (§ 1170, subd. (b)(4); Wiley,
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supra, 17 Cal.5th at p. 1069.) Tapia does not argue to the contrary. Because the record
demonstrates that the court did not rely exclusively on the certified conviction records or
the CLETS rap sheet in adjudicating the aggravating factors, Tapia’s challenge to the
court’s findings on that basis fails.
Moreover, the probation report contains substantial evidence supporting the
court’s findings that Tapia’s prior convictions were numerous and of increasing
seriousness and that he performed unsatisfactorily while on probation. First, Tapia
suffered three domestic violence convictions from 2012 through 2023, and “three
convictions are ‘numerous’ within the meaning of [the applicable rule].” (People v.
Searle (1989) 213 Cal.App.3d 1091, 1098.) The probation report also contains
substantial evidence that those convictions were of increasing seriousness, because each
successive conviction exposed Tapia to a potentially longer sentence. (Wiley, supra, 17
Cal.5th at p. 1082 [“the determination that a defendant’s prior convictions are of
increasing seriousness may be made by ‘reference to the range of punishment provided
by statute for each offense’”].) For the 2012 misdemeanor conviction under section
273.5(a), Tapia faced a sentence of no more than one year in jail. For the felony
conviction under the same statute in 2021, Tapia faced a possible sentence of two, three,
or four years in prison. And for the 2023 felony conviction under section 273.5(f)(1),
Tapia faced a possible sentence of two, four, or five years in state prison. (§ 273.5(a),
(f)(1).)
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Tapia’s arguments to the contrary are not supported by the record. He argues: (1)
“[t]wo prior convictions have been found to not be numerous”; (2) “[i]t is an improper
dual use of facts to use a prior conviction that is used as a strike under the three strikes
law to also impose the upper term”; and (3) “it was improper to consider a juvenile
adjudication for purposes of imposing the upper term.” Tapia suffered three prior
convictions (not two), and he did not suffer any prior strike convictions or juvenile
adjudications.
Second, the probation report also contains substantial evidence that Tapia
performed unsatisfactorily while on probation. He was sentenced to probation for each of
his three prior convictions, and he admitted multiple probation violations, including
repeated failure to comply with the community service requirement, failure to participate
in a 52-week domestic violence program, and commission of a new crime. Those
admitted violations constitute substantial evidence that Tapia performed unsatisfactorily
while on probation. (Wiley, supra, 17 Cal.5th at p. 1083.) Moreover, the court also
found that Tapia’s conduct in February 2024 violated the terms of probation imposed for
the 2021 and 2023 convictions, and the court revoked Tapia’s probation because of those
violations.
Tapia also argues that the trial court relied on the probation violations both in
selecting the upper term for the corporal injury count and in choosing to impose
consecutive sentences in the probation violation cases. He contends that “is a prohibited
dual use of facts” under rule 4.420(h), which provides: “A fact that is an element of the
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crime on which punishment is being imposed may not be used to impose a particular
term.”
The argument lacks merit for two reasons. First, Tapia’s unsatisfactory
performance on probation is not an element of the corporal injury offense, so the trial
court’s reliance on that unsatisfactory performance in selecting the upper term for the
corporal injury offense does not violate rule 4.420(h). Second, the court did not rely on
Tapia’s unsatisfactory performance on probation in choosing to impose consecutive
sentences in the probation violation cases. Rather, the court imposed consecutive
sentences in those cases because the conduct underlying the convictions in those cases
took place on separate occasions. In sum, there was no dual use of Tapia’s unsatisfactory
performance on probation. The court used it only as one of several grounds for selecting
the upper term for the corporal injury count.
For all of these reasons, Tapia has not shown that the trial court erred by imposing
the upper term on count 2.2
2 In his reply brief, Tapia challenges the sufficiency of the evidence supporting the
court’s finding that he was on probation when the crimes were committed, and he argues
that the court erred by imposing the upper term on the basis of the great bodily injury
aggravating factor. The arguments are forfeited because they were made for the first time
in a reply brief without any showing of good cause for failing to make them earlier.
(People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) The arguments also fail on the
merits. First, the trial court revoked Tapia’s probation for the 2021 and 2023 convictions
on the basis of the criminal conduct underlying the current offenses. That constitutes
sufficient evidence that Tapia was on probation when he committed the current offenses.
Second, the court did not base any of its sentencing choices on the great bodily injury
aggravating factor, and the court did not even find that factor true.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
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