Filed 9/21/26 P. v. Gonzalez CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H053571
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 22CR000061)
v.
ELOY TORRES GONZALEZ,
Defendant and Appellant.
Defendant Eloy Torres Gonzalez was convicted by a jury of crimes he
committed in 2018. This court previously reversed the judgment and remanded
the matter for resentencing but otherwise affirmed the convictions. (People v.
Gonzalez (July 19, 2024, H051075) [nonpub. opn.].)1 Gonzalez now appeals from
the judgment entered after his resentencing.
Appointed counsel for Gonzalez filed an opening brief which provides the
procedural and factual background of the case but raises no legal challenge to the
disposition. Counsel asks this court to conduct an independent review of the
record to determine whether there are any arguable issues. (See People v. Wende
(1979) 25 Cal.3d 436.) Gonzalez was advised of the right to file written
1
On our own motion, we take judicial notice of the opinion in
Gonzalez’s prior appeal in this case.
arguments on his own behalf and submitted a letter brief raising claims of
evidentiary and procedural error related to his original trial.
On April 21, 2026, the court requested supplemental briefing from the
parties on whether remand was necessary to address the fines and assessments
imposed at Gonzalez’s resentencing pursuant to People v. Kopp (2025) 19 Cal.5th
1. The parties were also asked to brief the relevance, if any, of Penal Code section
1237.22 to the question of fines and assessments. The parties submitted
supplemental briefs on those issues but as explained further below, any errors in
imposing fines and assessments are moot.
On May 20, 2026, the court requested additional supplemental briefing on
whether the trial court erred, “under People v. Wiley (2025) 17 Cal.5th 1069 and
People v. Lynch (2024) 16 Cal.5th 730, by relying on California Rule of Court,
rule 4.421(b)(2)[3] as a factor in aggravation to impose an upper term sentence.”
After completing supplemental briefing, the parties waived oral argument and the
matter was resubmitted.
The parties agree, as do we, that the trial court erred under People v. Wiley,
supra, 17 Cal.5th 1069 and People v. Lynch, supra, 16 Cal.5th 730, by relying on
an aggravating factor—namely that Gonzalez’s prior convictions are “numerous or
of increasing seriousness” (rule 4.421(b)(2))—that was not found true by a jury
nor did Gonzalez stipulate to its truth. Accordingly, we will reverse the judgment
2
This section provides as follows: “An appeal may not be taken by the
defendant from a judgment of conviction on the ground of an error in the
imposition or calculation of fines, penalty assessments, surcharges, fees, or costs
unless the defendant first presents the claim in the trial court at the time of
sentencing, or if the error is not discovered until after sentencing, the defendant
first makes a motion for correction in the trial court, which may be made
informally in writing.”
3
Unspecified rule references are to the California Rules of Court.
2
and remand the matter for resentencing under current law. Any potential issues
relating to the fines and fees imposed at the December 13, 2024 resentencing
hearing may be addressed by the parties in connection with the new resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND4
Gonzalez was initially charged by consolidated information filed on March
13, 2023, with eleven felony drug and firearm charges, two misdemeanor counts
of resisting a peace officer, and various sentencing enhancements.
Following a trial, the jury found Gonzalez guilty on all eleven felony
counts (counts 1 through 11) and found true the arming enhancement allegations
alleged in connection with counts 1, 2, 3, 9, 10 and 11. Gonzalez admitted the
out-on-bail enhancements alleged in connection with counts 7 through 11. After
the jury declared that it could not come to a verdict on the two misdemeanor
charges of resisting a peace officer (counts 12, 13), the trial court declared a
mistrial on those counts.
On May 17, 2023, the trial court sentenced Gonzalez to a total term of 16
years, four months, as follows: (1) an upper term of four years on count 3 (Health
& Saf. Code, § 11351) consecutive to an upper term of five years for the
associated arming enhancement (Pen. Code,5 § 12022, subd. (c)); (2) concurrent
middle terms of two years on count 1 and count 9 (Health & Saf. Code, § 11378)
with concurrent middle terms of four years for each of the associated arming
enhancements (§ 12022, subd. (c)); (3) a consecutive term of one year (one-third
the middle term) on count 2 (Health & Saf. Code, § 11379); (4) concurrent middle
terms of three years on count 4 and count 7 (Health & Saf. Code, § 11370.1, subd.
(a)); (5) consecutive eight-month terms (one-third the middle terms) on count 5 (§
4
We omit a recitation of the facts of the underlying offenses as they are not
relevant to the resolution of this appeal.
5
Unspecified statutory references are to the Penal Code.
3
29800), count 6 (§ 30305, subd. (a)(1)), and count 8 (§ 29800, subd. (a)(1)); (6) a
concurrent middle term of two years on count 9 (Health & Saf. Code, § 11378)
plus a concurrent middle term of four years on the associated arming enhancement
(§ 12022, subd. (c)); (7) a concurrent middle term of three years on count 10
(Health & Saf. Code, § 11351) plus a concurrent middle term of four years on the
associated arming enhancement (§ 12022, subd. (c)); (8) a consecutive one-year
term (one-third the middle term) on count 11 (Health & Saf. Code, § 11351) plus a
consecutive term of one year four months (one-third the middle term) on the
associated arming enhancement (§ 12022, subd. (c)); and (9) a consecutive term of
two years for the out-on-bail enhancement (§ 12022.1, subd. (b)).
Gonzalez appealed and this court, in an unpublished opinion filed on July
19, 2024, concluded that the trial court erred in imposing upper term sentences on
count 3 and the associated firearm enhancement based on his prior convictions.
Gonzalez did not admit his prior convictions and no certified records of those
convictions were provided to the trial court as required by section 1170,
subdivision (b)(3), as amended by Senate Bill No. 567 (2021–2022 Reg. Sess.).
Accordingly, we remanded the matter to the trial court to resentence Gonzalez
under current law.
At the December 13, 2024 resentencing hearing, eight certified copies of
minute orders from Gonzalez’s prior convictions were admitted into evidence.
The trial court stated that, based on those certified copies of convictions, it found
the following aggravating factors were proved beyond a reasonable doubt: (1) that
Gonzalez’s prior convictions are “numerous or of increasing seriousness” (rule
4.421(b)(2)); and (2) Gonzalez “has served a prior term in prison” (rule
4.421(b)(3)).6 The trial court then reimposed the original sentence of 16 years and
6
Although the trial court initially indicated that it was also relying on
Gonzalez’s unsatisfactory prior performance on probation (rule 4.421(b)(5)) as an
4
four months, which included an upper term of four years on count 3 (possession
for sale of a controlled substance) and an upper term of five years on the arming
enhancement attached to that count.
Gonzalez timely appealed.
II. DISCUSSION
A. Gonzalez’s claims of error
Gonzalez’s letter brief, as best we can make out, consists of him mostly
rearguing the facts leading to his conviction, as well as claiming that the arrest
warrant was invalid and that he was subjected to excessive force during his arrests.
He also asserts that, during his trial, while a police officer was testifying, that
officer left the witness stand and, along with the prosecutor, had a conversation
with an unidentified person at the courtroom door. After returning to the stand,
the officer then corrected his testimony about the amount and type of drugs police
found. Gonzalez claims that the trial judge allowed this to happen and his defense
counsel made no objection to this occurrence.
Gonzalez also appears to assert that, at his original trial, he unsuccessfully
tried to have new defense counsel appointed and the trial court refused to grant a
continuance for him to find new retained counsel. Finally, he claims that his
defense counsel at trial refused to provide him with any of the discovery in the
case and was otherwise ineffective. Gonzalez specifically states, however, that he
is not arguing that his appellate counsel was ineffective, nor does he raise any
claim that his resentencing counsel was ineffective.
None of Gonzalez’s claims of error pertain to the judgment entered
following his resentencing. Instead, all the claims are based on what took place at
aggravating factor, it subsequently stated that its sentencing choices were based
only on the aggravating factors set forth in rules 4.421(b)(1) and 4.421(b)(3).
5
his original trial, including his claims that his trial counsel was ineffective. The
time to raise these claims of error—by which Gonzalez seeks to directly attack his
convictions—was in his prior appeal. Indeed, California law prohibits such
“direct attack[s] upon a conviction in a second appeal after a limited remand for
resentencing or other posttrial procedures ... .” (People v. Senior (1995) 33
Cal.App.4th 531, 535.) We therefore cannot entertain Gonzalez’s contentions.
B. Reliance on Unproven Aggravating Circumstances
A sentencing court may not impose a determinate upper term sentence
unless (1) “there are circumstances in aggravation of the crime that justify [its]
imposition,” and (2) the aggravating circumstances “have been stipulated to by the
defendant or … found true beyond a reasonable doubt at trial.” (§ 1170, subd.
(b)(1), (2).) Other than stipulated facts or the fact of a prior conviction,
“aggravating facts relied upon to justify an upper term must be resolved by the
jury beyond a reasonable doubt.” (People v. Lynch, supra, 16 Cal.5th at p. 755.)
This jury trial right is not merely a “state law entitlement,” but “is constitutionally
required for all aggravating facts, other than a prior conviction.” (People v. Wiley,
supra, 17 Cal.5th at p. 1078.) “A Sixth Amendment violation occurs when the
trial court relies on unproven aggravating facts to impose an upper term
sentence, even if some other aggravating facts relied on have been properly
established.” (Lynch, at p. 768, italics added.)
In imposing the upper term at resentencing, the trial court here relied on
two circumstances in aggravation, both of which it found proven by the certified
copies of Gonzalez’s prior convictions: (1) Gonzalez’s prior convictions are
“numerous or of increasing seriousness” (rule 4.421(b)(2)); and (2) Gonzalez “has
served a prior term in prison” (rule 4.421(b)(3)).
In Lynch, our Supreme Court explained that “section 1170(b) operates in
such a manner as to trigger the Sixth Amendment jury trial right with respect to
6
every aggravating fact (other than a prior conviction) the trial court uses to justify
an upper term sentence.” (People v. Lynch, supra, 16 Cal.5th at p. 768.) “[U]nder
[section 1170, subdivision (b)] a Sixth Amendment violation occurs when the trial
court relies on unproven aggravating facts to impose an upper term sentence, even
if some other aggravating facts relied on have been properly established. The
violation is prejudicial unless an appellate court can conclude beyond a reasonable
doubt that a jury would have found true all of the aggravating facts relied upon by
the trial court to justify an upper term sentence, or that those facts were otherwise
proved true in compliance with the current statutory requirements. If the
reviewing court cannot so determine, applying the Chapman standard of review,
the defendant is entitled to a remand for resentencing.” (Ibid.)
The California Supreme Court subsequently held in People v. Wiley, supra,
17 Cal.5th 1069 that a defendant “was entitled to have a jury determine whether
his prior convictions were of increasing seriousness and whether he had performed
unsatisfactorily on probation, before the court could rely on those aggravating
facts to find justification for an upper term sentence.” (Id. at p. 1085.) “[A]
defendant is entitled to a jury trial on all aggravating facts, other than the bare fact
of a prior conviction and its elements, that expose the defendant to imposition of a
sentence more serious than the statutorily provided midterm.” (Id. at p. 1086, fn.
omitted.)
Turning to the question of prejudice, the Wiley court explained: “[W]hile
the evidence may have been sufficient to support a finding of increasing
seriousness, that is not the proper inquiry when assessing prejudice under
Chapman. [Citation.] Instead, we must ask ‘whether any rational fact finder
could have come to the opposite conclusion.’ [Citation.] A rational juror could
have reached the opposite conclusion here based on the totality of Wiley’s
criminal conduct and the applicable sentences for those transgressions.
7
Accordingly, we cannot conclude beyond a reasonable doubt that a properly
instructed jury would have found Wiley’s criminal convictions were of increasing
seriousness.” (People v. Wiley, supra, 17 Cal.5th at p. 1090.)
In addition to mandating the Chapman harmlessness standard, the Lynch
court concluded that the “ ‘ “ ‘clearly indicate[s]’ ” ’ ” (People v. Lynch, supra, 16
Cal.5th at p. 772) standard of People v. Gutierrez (2014) 58 Cal.4th 1354, 1391
“applies … when the record otherwise indicates that the court has not exercised its
‘ “ ‘informed discretion.’ ” ’ ” (Lynch, at p. 773.) The court explained that “under
the current law, [the trial court] is constrained by a presumption against the upper
term. It is this constraint on the trial court’s discretion that triggers the Gutierrez
standard because ‘ “[a] court which is unaware of the scope of its discretionary
powers [cannot] exercise that ‘informed discretion.’ ” ’ ” (Id. at p. 774.) The
Lynch court added, “In this circumstance, ‘it is almost always speculative for a
reviewing court to say what the sentencing court would have done if it had known
the scope of its discretionary powers at the time of sentencing.’ ” (Ibid., citing
People v. Salazar (2023) 15 Cal.5th 416, 431.)
Here, Gonzalez did not stipulate that his prior convictions were of
increasing seriousness (rule 4.421(b)(2)), nor did a jury find any such allegation to
be true. The parties agree, as do we, that the trial court, which independently
made an increasing seriousness finding, erred by imposing aggravated terms on
count 3 (possession for sale of a controlled substance) and the arming
enhancement attached to that count. Accordingly, Gonzalez is entitled to a full
resentencing under current law. The resentencing proceedings “are to be
conducted in accordance with the current statutory requirements and [Gonzalez]
given the opportunity for the jury trial, of which he was deprived.” (People v.
Lynch, supra, 16 Cal.5th at p. 777; see id. at p. 776 [“ ‘ “The proper remedy for
this type of failure of proof—where … [aggravating facts] were ‘never tried’ to
8
the jury—is to remand and give the People an opportunity to retry” ’ the
aggravating facts.”].)
III. DISPOSITION
The judgment is reversed, Gonzalez’s sentence is vacated, and the matter is
remanded for a full resentencing under current law, including Penal Code section
1170, subdivision (b).
9
____________________________
WILSON, J.
WE CONCUR:
____________________________
GROVER, Acting P. J.
_____________________________
LIE, J.
People v. Gonzalez
H053571
