People v. Depaz CA2/3

Filed 7/25/22 P. v. Depaz CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION THREE THE PEOPLE, B309275 Plaintiff and Respondent, Los Angeles County Super. Ct. No. VA150220 v. ELMER ALFREDO DEPAZ, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County. Roger Ito, Judge. Affirmed in part, sentence vacated, and remanded with directions. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent. _________________________ A jury convicted Elmer Alfredo Depaz of numerous sex crimes against his minor daughter, and the court sentenced him to 32 years in prison. On appeal, Depaz argues the trial court erred in denying his Batson/Wheeler motion.1 He also contends his case must be remanded for resentencing in accordance with Senate Bill No. 567 (2021–2022 Reg. Sess.) (SB 567), which restricts a trial court’s discretion to impose an upper term sentence. We agree that the case must be remanded for resentencing. We affirm the judgment in all other respects. FACTUAL AND PROCEDURAL BACKGROUND The People charged Depaz with four counts of committing a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a); counts 1, 7, 8, 9)2, one count of continuous sexual abuse of a child under age 14 (§ 288.5, subd. (a); count 3), two counts of sexual penetration by use of force on a child over the age of 14 (§ 289, subd. (a)(1)(C); counts 4, 6), and one count of aggravated sexual assault of a child under the age of 14 (§ 269, subd. (a)(5); count 5). At trial, the prosecutor presented evidence showing the following. Depaz’s daughter, J.D., was born in the United States. When J.D. was around two years old, her parents broke up and she moved to Mexico with her mother. About eight years later, J.D. moved back to the United States to live with Depaz and his wife. J.D.’s mother and siblings remained in Mexico, and Depaz forbade J.D. from visiting them. However, J.D. frequently 1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). 2 Undesignated statutory references are to the Penal Code. 2 communicated with her family living in Mexico. She also visited a maternal aunt who lived in the United States. J.D. was initially afraid to sleep on her own in Depaz’s home, so Depaz agreed to sleep next to her on Friday nights. One night when J.D. was 11 years old, Depaz was lying next …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals