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March 12, 2026 Get Citation Alerts Download PDF Add Note

People v. Gonzalez-Alvarez CA1/1

California Court of Appeal

• Citations: None known
• Docket Number: A171622

• Precedential Status: Non-Precedential

• Opinion

• Authorities (0)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Combined Opinion

Filed 3/12/26 P. v. Gonzalez-Alvarez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent, A171622
v.
(Sonoma County Super Ct.
FERNANDO JAVIER GONZALEZ- No. SCR7583331)
ALVAREZ,
Defendant and Appellant.

MEMORANDUM OPINION1
After Fernando Javier Gonzalez-Alvarez pleaded no contest to lewd
conduct with a child under 14 years old (Pen. Code,2 § 288, subd. (a)) and oral
copulation with a child under 16 years old (§ 287, subd. (b)(2)), the superior
court sentenced him to six years’ imprisonment, based on a six-year midterm
sentence for the lewd conduct and a concurrent two-year midterm sentence
for the copulation. In this appeal, Gonzalez-Alvarez argues that because he
had made a showing of childhood trauma sufficient to trigger the lower-term
presumption set forth in section 1170, subdivision (b)(6), the superior court

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud.
Admin., § 8.1.) We provide a limited factual summary because our opinion is
unpublished and the parties know, or should know, “the facts of the case and
its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
2 All statutory references are to the Penal Code.

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abused its sentencing discretion by imposing a midterm sentence in the
absence of any indication that the superior court was aware of that
subdivision’s requirements. We agree, so we will reverse the judgment and
remand the matter for a new sentencing hearing.3
In relevant part, section 1170, subdivision (b)(6), provides that “unless
the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if . . .
the following was a contributing factor in the commission of the offense: ¶ The person has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
Here, as the Attorney General concedes, Gonzalez-Alvarez “made a sufficient
showing” in this respect, thus “trigger[ing] the lower term presumption.” The
contested issue, then, is whether the superior court actually found “that the
aggravating circumstances outweigh[ed] the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice.”
(Ibid.)
On the present record, we cannot conclude the court made that finding.
First, the court did not expressly conduct the inquiry that would allow such a
finding to be made: The court neither referred to section 1170, subdivision
(b)(6), nor invoked its language. Second, the record does not “ ‘affirmatively’
show compliance with [the] statutory sentencing mandate,” as is required
when the court has not expressly complied. (People v. Fredrickson (2023)
90 Cal.App.5th 984, 991 [“the record must ‘affirmatively’ show compliance

3 We do not reach Gonzalez-Alvarez’s claim of ineffective assistance of

counsel, raised in his opening brief to forestall any suggestion that he has
forfeited the section 1170, subdivision (b)(6), claim. The Attorney General
concedes the latter claim is not forfeited, and we accept the concession.

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with a statutory sentencing mandate whenever the mandate has been
‘trigger[ed]’ by an ‘initial showing’ of the applicability of the statute”].) The
court’s averment that “looking at the mitigating factors . . . is where you start
nowadays” is too vague to be an affirmative indication that the court was
aware that the lower term was presumptive. Similarly, the court’s decision
to “select[] the midterm” after referring to “aggravating factors” is different
from a finding that the aggravating factors outweighed the mitigating factors,
as is required to defeat the presumption in favor the lower-term sentence.
Indeed, on the sentencing form signed by the sentencing judge, no marking
has been made on the field that reads, “[25] Aggravation factors outweigh
those in mitigation,” even though several other fields on the form are marked.
In short, this record gives us no reason to believe the court complied with
section 1170, subdivision (b)(6).
Consequently, we reject the Attorney General’s contention that we
should simply presume the superior court followed the law. In People v.
Caparrotta (2024) 103 Cal.App.5th 874, cited by the Attorney General as a
case in which such a presumption prevailed over a similar claim of
sentencing error, the record did affirmatively show compliance with the
statutory sentencing mandate: “Moreover, because Caparrotta highlighted
Penal Code section 1170, subdivision (b)(6) in his sentencing memorandum,
we presume that the trial court was aware Caparrotta was seeking to benefit
from that provision.” (Id. at p. 905.) No analogous “highlight[ing]” appears
in the record here, so we cannot draw the same inference with respect to the
judge who sentenced Gonzalez-Alvarez.
DISPOSITION
The judgment is reversed and the matter is remanded for a new
sentencing hearing that meets the requirements of section 1170.

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SMILEY, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

People v. Gonzalez-Alvarez / (A171622)

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