People v. Gholar CA3 ( 2022 )

Filed 12/6/22 P. v. Gholar CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C093212
Plaintiff and Respondent, (Super. Ct. No. CR2020414)
v.
TAYLOR LEWIS GHOLAR,
Defendant and Appellant.
A jury found defendant Taylor Lewis Gholar guilty of two counts related to
meeting with an underage girl for sex. (Pen. Code, §§ 288.3, 288.4.)1 Defendant
contends his sentence to the middle term on both counts should be vacated and the matter
remanded for the trial court to impose a sentence consistent with the changes to section
1 Further undesignated statutory references are to the Penal Code.
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1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567). We
shall remand for resentencing and otherwise affirm the judgment.
BACKGROUND
A detailed statement of the background of this case is unnecessary for
determination of the issues on appeal. It suffices to say that N.M., a minor, d isclosed to
her mother that she was receiving “weird” messages on Instagram from defendant, her
former teacher. Her mother looked through N.M.’s phone and discovered messages of a
sexual nature. Police were called and an officer reviewed messages where N.M. told
defendant she was 12 years old and he asked if she would sneak out to have sex with him
and send him nude photos. N.M.’s stepfather, pretending to be N.M., arranged a meeting
with defendant. Before he left for the meeting, defendant sent N.M. an explicit
photograph. When defendant arrived, he was arrested.
A jury found defendant guilty of: (1) arranging and attending a meeting with a
minor in order to engage in lewd conduct (§ 288.4; count one), and (2) contacting and
communicating with a minor with intent to commit a lewd and lascivious act as specified
in section 288 (§ 288.3; count two). The trial court referred the matter to the probation
department for a report and recommendation and set a date for sentencing.
As relevant here, the probation report stated that defendant “did not report
suffering from any . . . mental health conditions” and recommended probation, citing the
facts that defendant had no prior criminal record and appeared to be able to be successful
in the community with appropriate supervision and counseling. The probation officer
also submitted a sentencing memorandum, concluding that the factors in mitigation
outweighed the factors in aggravation and recommending the lower base term if prison
time were to be imposed, but continued to recommend probation. The People submitted
a sentencing brief requesting the upper term.
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Because the probation report had recommended a probationary sentence, the
defense submitted a sentencing brief that touched on defendant’s mental health issues and
psychological trauma in the context of his ability to comply with the terms of probation.
Defense counsel stated: “[Defendant] does not have any personality disorders that would
make it difficult to comply with reasonable terms of probation.” Counsel also noted that
defendant had expressed remorse as shown in a psychological evaluation and risk
assessment performed by Dr. Juliana Rohrer. Defense counsel further described various
assessments administered by the probation department and Dr. Rohrer that concluded
defendant had a low risk of reoffending. Letters in support were submitted with the
defense’s sentencing brief, some referring to his difficult family life growing up. A letter
from a friend who had met defendant when they were 12 stated: “His past, [sic] probably
one of the hardest childhoods from a person that I know personally, and he would come
to my family’s home nearly everyday [sic].”
Dr. Rohrer’s evaluation assessed defendant’s psychological history, diagnosis, and
current risk level. In a section devoted to family history, Rohrer reported that defendant’s
parents separated when he was 26 (he was 27 at the time he committed the offenses at
issue here). Defendant said his father was arrested and incarcerated for “ ‘similar
charges’ ” and then his mother decided to separate from his father. Defendant’s older
brother was serving a life sentence in prison for murder; he reported that he was close to
his brothers and it was difficult for him when his brother received a life sentence. He
withdrew from college classes when this happened. Defendant also had another brother
in prison serving a nine-year sentence.
Dr. Rohrer reported that defendant stated he was diagnosed with dyslexia and had
“been given assistance for this” in college and high school. “[I]n high school he was in
special education classes due to it and this was embarrassing for him.” Rohrer also
noted: “According to the Student Services Records Inactive Psychological Records, Mr.
Gholar has a learning disability and was placed on an Individualized Education Plan
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(IEP) while in school.” According to the same source, defendant “has a basic
psychological processing disorder in auditory processing, basic reading, reading
comprehension, and written expression” and “suffers from migraines.”
Dr. Rohrer expressed the opinion that defendant did not have a mental or
personality disorder or diagnosis, but incarceration would put him in contact with inmates
who did, to his detriment. Incarceration would also deny defendant the therapy he
needed, including family and sex offender therapy.
At the sentencing hearing, the trial court discussed at length the factors it had
considered without any mention of defendant’s psychological history or mental status.
The trial court noted that defendant was 29, had no criminal record, and had expressed
willingness to comply with the terms of probation. However, the court concluded that
“the vulnerability of the child and the position of trust of the defendant [were] controlling
in terms of the Court’s decision to reject probation and impose a sentence.” Based on
“trust and vulnerability versus no record,” the court sentenced defendant to the middle
term of three years on count two and imposed and stayed the middle term on count one
under section 654, for an aggregate term of three years.
Defendant filed a timely appeal in December 2020. After the parties requested
and received multiple extensions to the briefing schedule, the case was fully briefed and
assigned to this panel in October 2022. The parties waived argument and the matter was
deemed submitted on December 2, 2022.
DISCUSSION
When defendant was sentenced, selection of the appropriate term in a triad was
“within the sound discretion of the court.” (Former § 1170, subd. (b).) On January 1,
2022, while this appeal was pending, Senate Bill No. 567 became effective and amended
section 1170 such that, unless contrary to the interests of justice, trial courts must impose
the lower term if certain circumstances were a contributing factor in the commission of
the offense, such as that the defendant “has experienced psychological, physical, or
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childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.” (§ 1170, subd. (b)(6)(A).) In addition, trial courts have discretion to impose
the lower term even if there is no evidence of these circumstances. (§ 1170, subd. (b)(7)
[“Paragraph (6) does not preclude the court from imposing the lower term even if there is
no evidence of those circumstances listed in paragraph (6) present”]; People v. Gerson
(2022) 80 Cal.App.5th 1067, 1096 (Gerson) [“even if the trial court were to find no
evidence that the circumstances listed in paragraph (6) are present, it nonetheless retains
discretion to impose the lower term” (citing § 1170, subd. (b)(7)).)
These changes to section 1170 are ameliorative and therefore apply retroactively
to defendant’s nonfinal conviction. (People v. Garcia (2022) 76 Cal.App.5th 887, 902;
People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Defendant contends that Senate Bill No. 567’s amendment of section 1170
requires remand for resentencing based on evidence that defendant suffers from a
psychological processing disorder and experienced significant learning disabilities in
school.2
The Attorney General agrees that the amendments to section 1170, subdivision
(b)(6) apply retroactively to defendant, whose case is not yet final on appeal. 3 However,
he maintains remand is unwarranted because there is no reasonable indication defendant
2 Defendant also asks us to consider “his youthful age at the time of the offense.”
However, as the Attorney General points out, section 1170, subdivision (b)(6)(B) applies
the lower-term presumption only to a “youth as defined under subdivision (b) of Section
1016.7,” which states that a youth is “any person under 26 years of age on the date the
offense was committed.”
3 The Attorney General consistently refers to Assembly Bill No. 124 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 695, § 5) (Assembly Bill No. 124) as enacting the amended
version of section 1170, subdivision (b)(6). But the amendments to this provision in
Assembly Bill No. 124 were incorporated in Senate Bill No. 567. (Stats. 2021, ch. 731,
§ 1.3.) Senate Bill No. 567 is controlling because it was signed after Assembly Bill No.
124 and bears a higher chapter number.
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experienced any qualifying trauma contributing to his crime. Although he agrees that the
list of traumatic circumstances enumerated in the statute--i.e., “abuse, neglect,
exploitation or sexual violence” (§ 1170, subd. (b)(6)(A))--is not exhaustive, he points
out that it does not include a learning disability, which he argues is “markedly dissimilar”
to the circumstances listed. The Attorney General also argues any psychological trauma
under section 1170, subdivision (b)(6) that could be shown was not a contributing factor
in defendant’s crimes. The Attorney General argues there was no evidence any trauma
persisted into adulthood, much less contributed to his efforts to meet with N.M.
We agree this matter should be remanded. At sentencing, the defense presented an
evaluation by a psychologist intended to show that defendant was mentally stable and not
a risk if granted probation. However, the evaluation disclosed, among other things, that
defendant’s father was incarcerated for charges similar to those for which defendant was
convicted, which led his parents to separate; defendant dropped out of college when his
brother was sentenced to life in prison for murder; defendant had another brother serving
a significant sentence in prison; and defendant was placed in special education classes
due to a learning disability. A character letter from a person who met defendant in
middle school stated that he had “probably one of the hardest childhoods from a person I
know.” Even though Dr. Rohrer concluded that defendant did not have a serious mental
illness or personality disorder, she recommended therapy.
Despite these circumstances, without the enactment of section 1170, subdivision
(b)(6)(A), defendant had no incentive to develop the record further. Nor did the trial
court have the benefit of the amended statute at the sentencing hearing, so that it could
conduct the required analysis. When the court imposed sentence, defendant was not
entitled to a presumptive lower term upon a showing that he suffered psychological
trauma, which was a “contributing factor in the commission” of his offenses. (§ 1170,
subd. (b)(6).) Neither defendant nor the trial court had a meaningful incentive to assess
such a determination at the sentencing hearing held prior to the implementation of Senate
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Bill No. 567. (See People v. Banner (2022) 77 Cal.App.5th 226, 242 [“record is likely
incomplete relative to statutory factors enacted after judgment [is] pronounced”], citing
People v. Frahs (2020) 9 Cal.5th 618, 637-638; see also Gerson, supra, 80 Cal.App.5th
at p. 1096.) When a sentencing court is unaware of the scope of its discretionary powers,
“the appropriate remedy is to remand for resentencing unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391; Banner, at p. 242.)
Further, a trial court may now depart from the lower term only if it finds “the
aggravating circumstances outweigh the mitigating circumstances [such] that imposition
of the lower term would be contrary to the interests of justice.” (§ 1170, subd. (b)(6).)
No such finding was made here, and because the court did not consider traumatic events
in defendant’s history as a potential mitigating factor, we cannot be sure the finding
would have been made had the amendments been in place, particularly given the
probation officer’s recommendation of no prison time.
On remand, the trial court may revisit all of its sentencing choices in light of the
new legislation. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full
resentencing rule allows a court to revisit all prior sentencing decisions when
resentencing a defendant”]; Gerson, supra, 80 Cal.App.5th at p. 1096.)
We express no opinion on whether psychological trauma did in fact contribute to
defendant’s criminal offenses, a matter for the trial court to determine on resentencing.
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DISPOSITION
Defendant’s sentence is vacated, and the case remanded to the trial court for
resentencing under the amended version of section 1170, subdivision (b). The judgment
is otherwise affirmed.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P.J.
/s/
Hull, J.
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