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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Lopez CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D085550

• Precedential Status: Non-Precedential

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.3K)

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Combined Opinion

Filed 2/26/26 P. v. Lopez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085550

Plaintiff and Respondent,

v. (Super. Ct. No. SCE417968)

ANTONIO MARTINEZ LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Kathleen M. Lewis, Judge. Reversed and remanded with instructions.
John F. Schuck, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Daniel Rogers, Paige B. Hazard, Alana C. Butler and
Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Antonio Martinez Lopez pled guilty to two counts of child molestation
for acts he committed against his adopted daughter. In exchange for Lopez’s
plea, the People dismissed nine other counts and the parties stipulated to a
sentence between the range of five and 13 years in prison. On appeal, Lopez
contends the trial court prejudicially erred by imposing the upper term
sentence of 13 years based on aggravating factors that he did not stipulate to
and were not found true beyond a reasonable doubt at trial. We agree and
reverse the judgment and remand for resentencing.
BACKGROUND
Based on acts Lopez committed against his adopted daughter between
June 2016 and June 2022, he was charged by complaint with five counts of

committing a lewd act on a child under Penal Code1 section 288,
subdivision (a); one count of forcible lewd act on a child under section 288,
subdivision (b)(1); three counts of forcible rape under section 261,
subdivision (a)(2); and two counts of lewd act on a child 14 or 15 years of age
under section 288, subdivision (c)(1). The complaint further alleged three
aggravating factors for purposes of sentencing pursuant to California Rules of
Court, rule 4.421: (1) “the offense involved great violence, great bodily harm,
threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness”; (2) Lopez “took advantage of a position of trust
and confidence to commit the crime”; and (3) the victim “was particularly
vulnerable.”
In July 2024, Lopez pled guilty to one count of forcible lewd act on a
child under section 288, subdivision (b)(1), and one count of lewd act on a

1 Further unspecified statutory references are to the Penal Code.

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child 14 or 15 years of age under section 288, subdivision (c)(1). In exchange,
the People dismissed the remaining nine counts charged in the complaint.
The parties stipulated that Lopez would be sentenced to a prison term of
between five and 13 years. Pursuant to the plea agreement, Lopez waived
his right to appeal “any sentence stipulated” in the agreement, and entered a

Harvey2 waiver, by which he agreed “[t]he sentencing judge may consider
[Lopez’s] prior criminal history and the entire factual background of the case,
including any unfiled, dismissed or stricken charges, enhancements,
allegations, or cases when . . . imposing sentence.”
As a factual basis for his plea, Lopez admitted the following:
“I had sexual intercourse with a minor under 14
years of age by means of force, violence, duress, menace or
fear of immediate bodily injury on said person and willfully
and unlawfully committed a lewd act upon and with a child
under the age of 14 with the intent of arousing and
appealing to the lust, passions and sexual desires of the
victim and myself by use of force, violence, duress, menace,
or fear of unlawful bodily injury on the victim.”
“On or about and between June 20, 2020, and
June 19, 2021, I did willfully, unlawfully and lewdly
commit a lewd and lascivious act upon and with the body
and parts and members thereof, of [the victim], a child
fourteen or fifteen years of age, the defendant being at least
10 years older than the child, with the intent of arousing,
appealing to and gratifying the lust[,] passions or sexual
desires of myself and the said child.”

In addition, in a statement of mitigation filed before Lopez’s sentencing
hearing, he stated he was “submit[ting] on the facts as developed in the
probation report.”

2 People v. Harvey (1979) 25 Cal.3d 754.

3
At sentencing, Lopez’s defense counsel referenced a finding in the
probation report that an upper term sentence could not be imposed because
the aggravating factors had not been sufficiently proven or admitted by
Lopez. Counsel stated his agreement that Lopez had not admitted any
aggravating factors through his plea and, thus, the maximum sentence the
court could impose was eight years and eight months.
In imposing sentence, the trial court stated its belief that it could
impose an aggravated term based on Lopez’s stipulation in the plea
agreement to a sentence up to the maximum of 13 years. Nevertheless, it
weighed the mitigating and aggravating factors. Specifically, it found three
applicable mitigating factors: (1) Lopez voluntarily acknowledged
wrongdoing at an early stage by pleading guilty; (2) members of the
community and his family offered support; and (3) he is elderly and in poor
health. It further found five applicable aggravating factors: (1) Lopez took
advantage of a position of trust; (2) he engaged in violent conduct; (3) his
criminal record shows a pattern of “increasing seriousness”; (4) his conduct
“has had a lifelong negative psychological and emotional effect on the victim”;
and (5) he had failed to accept responsibility for his actions or show remorse.
The court then found the aggravating factors outweighed the mitigating
factors and imposed the maximum upper term sentence of 13 years in prison.

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DISCUSSION
I.
Waiver of Right to Appeal
First, the People argue Lopez’s appeal must be dismissed because he
waived his right to appeal from any sentence imposed under the terms of the

plea agreement. We are not persuaded.3
“As this court has previously observed, a defendant may waive the
right to appeal as part of a plea bargain where the waiver is knowing,
intelligent and voluntary. A broad or general waiver of appeal rights
ordinarily includes error occurring before but not after the waiver because
the defendant could not knowingly and intelligently waive the right to appeal
any unforeseen or unknown future error. Thus, a waiver of appeal rights
does not apply to possible future error[, including sentencing error,] that is

3 The People filed a motion to dismiss this appeal on this same ground,
raising arguments that essentially overlap the arguments in this appeal. We
find the arguments the People have raised in the motion to dismiss
unpersuasive for the same reasons we shall discuss as to their argument in
this appeal. Thus, the motion to dismiss is denied.
We note that Lopez obtained a certificate of probable cause based on
claims other than the one he has presented here. In the motion to dismiss,
the People do not argue Lopez’s appeal must be dismissed because he failed
to obtain a certificate of probable cause as to the claim he now presents on
appeal. To the extent the People address the issue of a certificate of probable
cause at all, they argue in the motion to dismiss that the issuance of a
certificate of probable cause on a different issue does not relieve Lopez from
his waiver of his right to appeal on the claim at issue here. Although the
failure to obtain a certificate of probable cause generally bars an appeal
following a guilty plea (§ 1237.5), a certificate of probable cause is not
required to raise on appeal a claim, such as the one Lopez presents here,
“regarding proceedings held subsequent to the plea for the purpose of
determining the degree of the crime and the penalty to be imposed.” (People
v. Buttram (2003) 30 Cal.4th 773, 780, 790–791 (Buttram).)

5
outside the defendant’s contemplation and knowledge at the time the waiver
is made.” (People v. Patton (2019) 41 Cal.App.5th 934, 940–941 (Patton)
[cleaned up].)
“ ‘Waiver is ordinarily a question of fact.’ ” (People v. Vargas (1993) 13
Cal.App.4th 1653, 1661.) “The burden is on the party claiming the existence
of the waiver to prove it by evidence that does not leave the matter to
speculation, and doubtful cases will be resolved against a waiver. The right
of appeal should not be considered waived or abandoned except where the
record clearly establishes it.” (Id. at p. 1662 [cleaned up].)
There is no dispute that when Lopez entered his plea he gave up his
right to appeal “any sentence stipulated [in the plea agreement].” Such a
waiver may preclude an appellate challenge to the trial court’s imposition of a
specific prison term that was stipulated in the plea agreement. (People v.
Panizzon (1996) 13 Cal.4th 68, 72–73, 85–86 (Panizzon).) What we must
determine here, however, is whether the scope of such a waiver also includes
a challenge to a trial court’s choice of a sentencing term from a stipulated
range.
The opinion of the California Supreme Court in Buttram, supra, 30
Cal.4th 773 is instructive. In Buttram, the court considered a plea agreement
that contemplated an unspecified sentence not to exceed an indicated
maximum prison term. (Id. at p. 777.) Although Buttram’s plea agreement
did not include an express waiver of his right to appeal, the court considered
whether his guilty plea precluded his appellate challenge to the trial court’s
exercise of discretion in imposing the maximum sentence. (Id. at pp. 777–
780.) In considering this issue, the court distinguished Buttram’s case from
cases involving plea agreements stipulating to a “specified sentence,” and
found persuasive the argument “that a negotiated plea term which provides

6
for a maximum sentence, rather than a specified sentence, necessarily
contemplates further adversary proceedings, . . . in which the court must
exercise its discretion to determine the appropriate sentence within the
constraints of the bargain.” (Id. at pp. 782, 785.) The court further reasoned
that, “[w]hen the parties negotiate a maximum sentence, they obviously
mean something different than if they had bargained for a specific or
recommended sentence. By agreeing only to a maximum sentence, the
parties leave unresolved between themselves the appropriate sentence within
the maximum.” (Id. at p. 785.) Finally, in determining Buttram’s appeal
challenging the imposition of the maximum sentence was not precluded by
his guilty plea, the court reasoned that an agreement for something other
than a specified sentencing term, “by its nature, contemplates that the court
will choose from among a range of permissible sentences within the
maximum, and that abuses of this discretionary sentencing authority will be

reviewable on appeal, as they would otherwise be.”4 (Id. at pp. 790–791.)

4 We recognize that, in his concurrence to the majority opinion Justice
Baxter authored himself in Buttram, he opines the result on the waiver issue
would be different where a defendant expressly waives his right to appeal
through the terms of his plea agreement. (Buttram, supra, 30 Cal.4th at
pp. 791–794 (conc. opn. of Baxter, J.).) Justice Baxter cited to the majority
opinion he also authored in Panizzon as an example of such a waiver. (Id. at
pp. 791–792.) But, as Justice Baxter recognized in Buttram, Panizzon
considered a plea agreement that “included a specific sentence,” not the type
of sentencing range at issue here. (Buttram, at p. 792 (conc. opn. by Baxter,
J.).) And, in his majority opinion in Panizzon, Justice Baxter recognized as
distinguishable a scenario where the defendant’s plea agreement
contemplated a stipulated sentencing range and included a waiver of his
right to appeal, and the defendant then sought to present an appellate claim
challenging the length of his sentence on the ground that the trial court
relied on an impermissible factor at sentencing. (Panizzon, supra, 13 Cal.4th
at p. 87, citing U.S. v. Jacobson (2d Cir. 1994) 15 F.3d 19.)

7
Here, Lopez stipulated to a sentencing range that set both the
minimum and the maximum sentence but did not specify the exact sentence
to be imposed. Nothing in the plea agreement dictates the terms by which
the trial court would determine what sentence to impose from within the
stipulated range. And nothing in the plea agreement stipulates that the trial
court, in making its sentencing decision, would not be bound by section 1170,
subdivision (b), or the Sixth Amendment to the United States Constitution,
which limit the ability of a trial court to impose an upper term sentence
absent sufficient proof of aggravating factors. (§ 1170, subd. (b)(1) & (2);
Cunningham v. California (2007) 549 U.S. 270, 281 (Cunningham) [“under
the Sixth Amendment, any fact that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and established
beyond a reasonable doubt, not merely by a preponderance of the evidence”].)
Thus, Lopez’s stipulation to a sentencing range is akin to the stipulation to a
maximum sentence at issue in Buttram, as it left the trial court to “exercise
its discretion to determine the appropriate sentence within the constraints of
the bargain” and “choose from among a range of permissible sentences within
the maximum.” (Buttram, supra, 30 Cal.4th at pp. 785, 790–791.) Any error
in the trial court’s exercise of this sentencing discretion is the type of future
sentencing error that Lopez could not have anticipated at the time he entered
his plea, and thus he did not waive his right to appeal based on such an
alleged error by way of his plea. (See id. at pp. 790–791; Patton, supra, 41
Cal.App.5th at pp. 940–941.)
II.
Imposition of Upper Term Sentence
Turning to the substance of Lopez’s claim, he argues the trial court
erred by imposing the upper term sentence because he did not stipulate to

8
the aggravating factors the court used to support its sentencing decision and
those factors were not found true beyond a reasonable doubt at trial, as
required by the Sixth and Fourteenth Amendments and section 1170,
subdivision (b)(2).
A. Legal Standard
Section 1170, subdivision (b), generally provides that a sentence may
not exceed the middle term, except when it finds aggravating circumstances
justify a higher sentence. (§ 1170, subd. (b)(1) & (2).) Both section 1170,
subdivision (b), and the Sixth Amendment require that these aggravating
factors be stipulated to by the defendant or found true beyond a reasonable
doubt at a jury or court trial. (§ 1170, subd. (b)(2); Cunningham, supra, 549
U.S. at p. 281; People v. Lynch (2024) 16 Cal.5th 730, 759 (Lynch) [“An upper
term sentence may be imposed ‘only’ when circumstances in aggravation
‘justify’ that term, and ‘only’ when the facts underlying ‘those’ justifying
circumstances have been stipulated to by the defendant or found true beyond
a reasonable doubt at a jury or court trial.”].) A court does not have
discretion to impose an upper term sentence unless all the aggravating
factors on which it relies have been sufficiently proven. (People v. Wiley
(2025) 17 Cal.5th 1069, 1086 (Wiley).)
B. The Trial Court’s Application of Aggravating Factors
The People argue Lopez stipulated to the aggravating factors by
submitting on the facts reflected in the probation report and by entering a
Harvey waiver, which permitted the trial court to consider at sentencing the
history and factual background of the case. According to the People, these
stipulated facts proved the three aggravating factors alleged in the complaint
originally filed against Lopez, that is (1) Lopez took advantage of a position of
trust; (2) the victim was particularly vulnerable; and (3) the crime involved

9
great violence or bodily harm, threat of great bodily harm, or other acts
exhibiting a high degree of cruelty, viciousness, or callousness. But the trial
court imposed the upper term sentence based, in part, on other aggravating
factors that were not alleged in the complaint. Specifically, the court imposed
the upper term sentence based on its additional findings that: (1) Lopez’s
criminal record shows a pattern of “increasing seriousness”; (2) his conduct
“has had a lifelong negative psychological and emotional effect on the victim”;
and (3) he failed to accept responsibility for his actions or show remorse. As
we will discuss, the record does not show Lopez stipulated to the fact that his
prior convictions were of increasing seriousness.
C. Increasing Seriousness
A determination that prior convictions are of increasing seriousness
“requires a comparison and evaluation of the relationship among a
defendant’s prior convictions, and a determination as to their relative
seriousness.” (Wiley, supra, 17 Cal.5th at p. 1082.) Thus, it “involves
something more than a narrow factual finding that the convictions were
sustained and what elements were required to prove them” or “ ‘reference to
the range of punishment provided by statute for each offense.’ ” (Id. at
pp. 1082, 1084, 1085.)
The only evidence before the trial court regarding Lopez’s prior
criminal history was the probation report, which showed he was convicted in
1994 of the sale or transportation of counterfeit documents and in 2001 of
driving under the influence, and for each conviction he received a sentence of
probation. This is insufficient to prove that these convictions are of
increasing seriousness. (Wiley, supra, 17 Cal.5th at pp. 1082, 1084–1085.)
Absent a finding at trial or a stipulation by Lopez that his prior convictions
reflected in the probation report are of increasing seriousness, the trial court

10
was not permitted to rely on this factor in imposing the upper term sentence.
Neither was the error harmless, as neither of Lopez’s prior convictions is
“strikingly more serious than the other[ ], either by reference to the nature of
the offense or the punishment” and “[a] jury considering this criminal history
could have disagreed as to whether it demonstrated criminal conduct of
increasing seriousness.” (Id. at p. 1089; see id. at pp. 1086–1090.)
III.
Availability of Remand
Lastly, the People argue that, because Lopez stipulated to the imposed
sentence, he is not entitled to remand for consideration of the aggravating
factors under section 1170, subdivision (b)(2). In addition, the People contend
that, in the event this court finds remand warranted, they should be afforded
“an opportunity to present evidence to meet the requirements of section 1170,
subdivision (b)(2) or to submit to resentencing based on the current record.”
As the People recognize, the Courts of Appeal have split on the issue of
whether a defendant, who stipulated to an upper term sentence pursuant to a
plea agreement, is entitled to remand for consideration of the aggravating
factors under section 1170, subdivision (b)(2), and the Supreme Court has
granted review on this issue. (Compare People v. De La Rosa Burgara (2023)
97 Cal.App.5th 1054, 1063, review granted Feb. 21, 2024, S283452 (De La
Rosa Burgara) [defendant entitled to remand]; People v. Todd (2023) 88
Cal.App.5th 373, 381–382, review granted Apr. 26, 2023, S279154 [same];
and People v. Fox (2023) 90 Cal.App.5th 826, 831 [same] with People v.
Mitchell (2022) 83 Cal.App.5th 1051, 1057–1059, review granted Dec. 14,
2022, S277314 [defendant not entitled to remand]; People v. Sallee (2023) 88
Cal.App.5th 330, 340–341, review granted Apr. 26, 2023, S278690 [same];
and People v. Kelly (2022) 87 Cal.App.5th 1, 4, review granted Mar. 22, 2023,

11
S278503 [same].) But, as we have discussed, Lopez did not stipulate to a
specified upper term sentence. Rather, he stipulated to a sentencing range,
which included the possible imposition of the upper term. The People have
not shown that the cases cited above apply under the circumstances of
Lopez’s case.
Even assuming the issue that has split the Courts of Appeal is
applicable here, we are persuaded by the logic of the courts that have allowed
defendants subject to stipulated sentences to seek the benefits of section
1170, subdivision (b)(2), including De La Rosa Burgara, Todd, and Fox.
Accordingly, we will reverse the judgment and remand the matter for
resentencing in compliance with the Sixth Amendment and section 1170,
subdivision (b).
To guide the parties, we detail the possible scenarios that might arise

on remand.5 (See De La Rosa Burgara, supra, 97 Cal.App.5th at pp. 1064–
1065, review granted.)
Lopez may waive his rights under the Sixth Amendment and section
1170, subdivision (b), in which case the trial court shall reinstate his original
sentence. If, however, Lopez invokes these rights, he must state whether he
stipulates to the facts underlying any aggravating factors justifying the
imposition of the upper term sentences as to each count to which he pled
guilty, or whether he desires a jury or bench trial on any applicable

5 Nothing we state herein precludes Lopez and the People from jointly
moving to withdraw from the plea agreement, vacate the conviction, and
return them to the status quo ante. (De La Rosa Burgara, supra, 97
Cal.App.5th at p. 1064, fn. 14, review granted.) In addition, at any
resentencing hearing, “the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury.” (§ 1170,
subd. (b)(3).)

12
aggravating factors. (§ 1170, subd. (b)(2); Cunningham, supra, 549 U.S. at
p. 281; Lynch, supra, 16 Cal.5th at pp. 759–760.)
If Lopez stipulates to the facts underlying an aggravating circumstance
justifying the upper-term sentence, the trial court shall find that the upper
term may be imposed based on that aggravating factor.
If Lopez invokes his right to trial, the People will have the burden of
proving beyond a reasonable doubt the truth of any alleged aggravating
factor justifying the imposition of the upper term. (§ 1170, subd. (b)(2).) If
the factfinder finds an aggravating factor true, the court may reinstate the
original sentence.
If the People fail to prove the truth of an aggravating factor, the trial
court shall find that the sentence under the plea agreement cannot exceed
the middle term.

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DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings consistent with this opinion. On remand, Lopez shall be
resentenced in compliance with the Sixth Amendment and section 1170,
subdivision (b). After resentencing, the court shall forward an amended
abstract of judgment to the Department of Corrections and Rehabilitation.

DO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

BUCHANAN, J.

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