People v. Niz CA2/4

Opinion

Filed 8/28/26 P. v. Niz CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B343866

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA075272) v.

RALPH JESSE NIZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Joan M. Chrostek, Judge. Affirmed. Corey J. Robins, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION In 2025, the trial court recalled defendant Ralph Jesse Niz’s sentence pursuant to Penal Code section 1172.75,1 struck a one-year prior prison term enhancement (§ 667.5, subd. (b)) and two five-year serious felony enhancements (§ 667, subd. (a)) and resentenced him to 185 years to life. On appeal, defendant contends the court applied an improper standard in declining to grant any further resentencing relief, asserting the court did not consider future dangerousness. We affirm.

FACTUAL BACKGROUND

We grant defendant’s request for judicial notice of the record in his direct appeal. (People v. Niz (Mar. 4, 2008, B198102) [nonpub. opn.].) The following facts are taken from the court’s opinion.

I. The Charged Crimes The three victims, Mary Jane S. (13 years old), Monique S. (10 years old), and Victoria S. (11 years old), are sisters. They also have an older sister, Justine V. (14 years old). Defendant is their great uncle. At the time of the events described here, they all lived in the home of the girls’ great- grandmother and defendant’s mother, Luz M., along with other family members as indicated below. One morning, Mary Jane was sitting on the floor watching television, next to the air mattress on which defendant slept. Defendant put his hand on her buttocks and her breasts, touching and rubbing her skin beneath her pajamas. He pulled her toward him and put two fingers inside her vagina. He then told her to hold and rub his penis, and she described feeling “gooey stuff.” When defendant heard Luz coming down the hallway, he jumped up and went into the kitchen.

1 All further statutory references are to the Penal Code unless otherwise stated.

2 On another occasion, Luz had a barbecue at her house. Mary Jane was grounded and had to stay in her bedroom. Mary Jane, Monique, Victoria and Justine shared one bedroom with their cousin Elizabeth. Mary Jane, Monique, and Victoria slept in the top bed of a bunk bed, and Elizabeth slept on the bottom. Justine had a single bed in the same room. Mary Jane’s sisters and cousins came into the bedroom and began dancing. Defendant was outside their bedroom window, and the girls asked to use his cellular phone to record their dancing. He handed the phone to Mary Jane through the window. Shortly thereafter, defendant came into the bedroom. Mary Jane was lying on Justine’s bed, using the phone to record the other girls dancing. Defendant took a blanket from the top bunk and put it on Mary Jane, then lay down behind her. He began touching her buttocks under her clothes and put his fingers in her vagina. He then pulled down her top and took a picture of her breasts with his phone. He showed her the picture, and she took the phone and deleted it. Luz sent Justine to tell everyone to get out of the bedroom, because Mary Jane was grounded and was supposed to be alone. Everyone left, including defendant, but he returned a minute later. Mary Jane was standing next to the bunk bed. Defendant pulled her pants down, took out his penis, and started to stick it in her bottom. Just as he did so, one of her sisters came and told her she was supposed to go eat, so Mary Jane left the room. Later that night, defendant came into the girls’ bedroom as they were sleeping. Mary Jane was sleeping on the top bunk along with Victoria and Monique; Mary Jane was nearest the rail. Defendant touched her buttocks, breasts, and vagina under her pajamas. He then left the room. Mary Jane switched places with Monique. Defendant came back into the room. He unbuttoned Monique’s shirt and began touching her chest and stomach. When he realized it was Monique and not Mary Jane, he abruptly left. On a different occasion, Victoria was napping on the couch in the living room. She awoke and saw defendant standing over her. There was a pillow across her waist, her pants were unzipped, and defendant was touching her vagina with his hand. Her three sisters were sitting on the air mattress watching television in the same room. Victoria got up from the couch and asked her sisters to go into their bedroom with her.

3 II. Molestations of the Victims by Others Mary Jane testified that another cousin, Al, had tried to put his penis in her bottom on two occasions, and threatened to drown her and her family in the pool if she did not do what he said. These incidents were reported to the police. Victoria testified that Al also did something sexual to her. Another cousin, Raymond, told her to do something sexual to him.

III. Uncharged Crimes Involving Defendant Thomas F. (nine years old) and his sisters, Michelle and Unique, sometimes lived with their great-grandmother, Luz, along with his cousins, Mary Jane, Monique, Victoria, and Justine. Thomas testified he was sitting on a couch in the living room, when defendant picked him up and moved him to another couch. Defendant sat down next to him and put a blanket over them. Defendant removed Thomas’s belt, put his hand inside the child’s pants, and touched him between his legs. Defendant took Thomas’s hand and put it inside defendant’s pants. Justine came over and led Thomas away, telling defendant not to touch her cousin. Stephanie N., who was 24 years old at the time of trial, is the sister of the victims’ mother, and of Thomas’s mother. Defendant is her uncle. Stephanie testified that when she was 11 or 12 years old, she lived with her grandmother, Luz. Defendant also lived there. One evening while she was sleeping in her bedroom, defendant pulled her to the edge of her bed, put his knee on her thigh, and covered her mouth. He rubbed his penis on her vagina, then inserted his penis into her vagina. She did not tell anyone about it initially, because she did not think they would believe her. She eventually told various family members. Luz, her grandmother, did not believe her, and called her a liar. She also talked to a social worker about the incident.

4 PROCEDURAL HISTORY

I. The Conviction In 2007, a jury convicted defendant of five counts of committing lewd acts upon a child under the age of 14 (§ 288, subd. (a); count 1 [Mary Jane], count 2 [Monique], count 3 [Mary Jane], count 4 [Mary Jane], and count 5 [Victoria]). As to all counts, the jury found true the multiple victim circumstance (§ 667.61, subd. (b)). In a bifurcated proceeding, the trial court found true four strike allegations (§§ 1170.12, subds. (a)-(d), 667, subds. (b)- (i)), two serious felony allegations (§ 667, subd. (a)), and one prior prison term allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to 196 years to life in state prison. On appeal, a different panel of this court affirmed the judgment.

II. The Resentencing Hearing In 2023, defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. The trial court appointed counsel for defendant. In 2024, defendant filed a motion to dismiss his prior prison term enhancement as well as the two serious felony enhancements, the three multiple victim circumstances and the four prior strike convictions. Defendant argued, in part, that “[h]is much-more advanced age now, as opposed to decades ago when the crime was committed, bodes well for his future prospects and low-risk of recidivism upon release.” The People filed an opposition, in which they conceded to dismissing the prior prison term enhancement but requested that defendant’s sentence otherwise remain intact. The People argued defendant was a risk to public safety for the following reasons. Defendant had an extensive criminal history, which escalated into committing sexual assaults on young children. In addition, defendant “has done nothing” to address his sexual compulsion and propensity to sexually assault young children while incarcerated, and if released, defendant would “likely reoffend . . . given the opportunity.” Furthermore, defendant’s prison file demonstrated a “pattern of 5 noncompliance.” Finally, defendant’s age would not be a deterrent to committing sex crimes against children. On February 5, 2025, the trial court held a hearing. At the outset, the court permitted a victim and some family members to speak. Thereafter, defense counsel argued defendant, who was now 72 years old, was “not the same person.” Counsel explained defendant made substantial rehabilitative efforts while in state prison and was no longer “the same threat risk.” The prosecutor responded that defendant’s current age was irrelevant in light of his “very long” criminal history. She further argued that defendant’s crimes involved taking advantage of his position of trust with minor victims. Moreover, defendant’s age “would not stop him from having the same type of propensity” to commit further sexual offenses with minors. She asked the court to also consider “the lack of any rehabilitation to actually address the compulsion that he has to these minors.” She emphasized that defendant had not addressed his compulsion to molest children while incarcerated and therefore, he was “a public safety risk.” The trial court stated it reviewed and considered “the record, files, transcripts, moving papers of both sides and the arguments and testimony” at the hearing. The court found that the People had “shown by clear and convincing evidence that the defendant is a public safety risk.” The court explained that “[d]efendant, who [was] in a position of trust actually molested not only the three victims in this case, who were family members, but also there is evidence he molested other family members, both male and female.” As a result, the court declined to exercise its discretion to resentence him other than to dismiss the one-year prior prison term enhancement and the two five-year serious felony enhancements, which reduced his sentence to 185 years to life. Defendant timely appealed.

DISCUSSION

Defendant challenges the trial court’s refusal to grant further resentencing relief. He argues that the trial court did not apply the proper 6 standard for assessing his future dangerousness as articulated in People v. Gonzalez (2024) 103 Cal.App.5th 215 (Gonzalez).2 Previously, section 667.5, subdivision (b) required the trial courts to impose a one-year sentence enhancement for each true finding on an allegation that the defendant served a separate prior prison term and had not remained free of custody for at least five years. (Former § 667.5, subd. (b); People v. Renteria (2023) 96 Cal.App.5th 1276, 1282; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) However, with the enactment of Senate Bill No. 136 (effective Jan. 1, 2020), the Legislature amended subdivision (b) of section 667.5 to impose a one-year enhancement only for each prior term served for a conviction of a sexually violent offense. (Stats. 2019, ch. 590, § 1.) “Enhancements based on prior prison terms served for other offenses became legally invalid.” (People v. Burgess (2022) 86 Cal.App.5th 375, 380 (Burgess).) The Legislature later enacted Senate Bill No. 483, effective January 1, 2022, to make the changes implemented by Senate Bill No. 136 retroactive by adding former section 1171.1 (now section 1172.75) to the Penal Code. (See Stats. 2021, ch. 728, § 1; accord, Burgess, supra, at p. 380; accord, People v. Monroe (2022) 85 Cal.App.5th 393, 399.) Section 1172.75, subdivision (c) requires the trial court to recall an applicable sentence and resentence the defendant. Section 1172.75, subdivision (d)(1) mandates that the trial court impose “a lesser sentence than the one originally imposed . . . unless the court finds by clear and convincing evidence that imposing a lesser sentence would 2 We reject the Attorney General’s contention that defendant forfeited this argument by failing to assert it below. At the resentencing hearing, defendant argued a forward-looking approach in determining whether to lower his sentence. Defendant asserted that, given his advanced age, he would not pose a safety risk upon release. We find this was sufficient to preserve the issue for appeal. Even if we were to determine that forfeiture occurred, we would nevertheless exercise our discretion to consider defendant’s appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [“an appellate court may review a forfeited claim—and ‘[w]hether or not it should do so is entrusted to its discretion’ ”].) Because we address the merits, we need not address defendant’s argument that any forfeiture resulted from ineffective assistance of counsel. 7 endanger public safety.” (Italics added.) At resentencing, the court “shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” (Id., subd. (d)(2).) The court may also consider post-conviction factors, including the defendant’s disciplinary record, his rehabilitation, and his age and physical condition affecting any risk for future violence, among other factors. (Id., subd. (d)(3).) Defendant contends the trial court failed to properly determine whether a lesser sentence would endanger public safety. (§ 1172.75, subd. (d)(1).) In support of this argument, defendant relies on Gonzalez. In Gonzalez, the trial court refused to dismiss a firearm enhancement under section 13853 based on its finding the defendant “ ‘presently . . . does represent a danger to society.’ ” (103 Cal.App.5th at p. 224.) The court interpreted section 1385 as requiring it to decide whether the defendant “ ‘currently at the time of sentencing represent[s] a danger to society.’ ” (Id. at p. 223, italics added.) The appellate court held the trial court erred in its “singular focus on whether the defendant currently poses a danger.” (Id. at p. 228.) The court explained that deciding whether dismissal of an enhancement would endanger public safety is a “ ‘forward-looking inquiry.’ ” (Id. at p. 229.) The court must consider not only the defendant’s current dangerousness but also his dangerousness when he would be released from prison were the enhancement dismissed and, if the sentence is indeterminate, the “safety valve” of approval by the Board of Parole Hearings that is required for release. (Id. at pp. 228–229.) We find Gonzalez distinguishable. Nothing in the instant case indicates the trial court limited its assessment solely to whether defendant is currently dangerous. Unlike Gonzalez, the court here never stated it was 3 Section 1385 gives a sentencing court discretion to strike or dismiss an enhancement “in the furtherance of justice.” (Id., subd. (c); see People v. Walker (2024) 16 Cal.5th 1024, 1033.) In exercising its discretion, the court must give “great weight” to the mitigating circumstances listed in the statute “unless the court finds that dismissal of the enhancement would endanger public safety.” (§ 1385, subd. (c)(2), italics added.) 8 limited to deciding whether defendant currently represents a danger to society. (See Gonzalez, supra, 103 Cal.App.5th at p. 227.) Defendant’s assertion that “the record affirmatively shows” the trial court only considered his current dangerousness, without any citation to the record, is insufficient. In fact, the evidence suggests the trial court did assess defendant’s future dangerousness. The court stated it reviewed and considered, among other things, the parties’ moving papers and arguments. In defendant’s motion, he argued, in part, that “[h]is much-more advanced age now, as opposed to decades ago when the crime was committed, bodes well for his future prospects and low-risk of recidivism upon release.” At the hearing, his counsel reiterated this point and contended that defendant was of an advanced age and was “not the same person.” Counsel explained that defendant made substantial rehabilitative efforts while in prison and he was no longer “the same threat risk.” In its written opposition, the prosecutor argued defendant “has done nothing” to address his sexual compulsion and propensity to sexually assault young children while incarcerated, and if released, defendant would “likely reoffend . . . given the opportunity.” At the hearing, the prosecutor argued defendant’s advanced age “would not stop him from having the same type of propensity” to commit further sexual offenses against minors. The prosecutor highlighted defendant’s complete lack of rehabilitative efforts to specifically address his sexual compulsion to molest children. Given the court’s reliance on the parties’ moving papers and argument, we can reasonably infer the court utilized a forward-looking approach in assessing defendant’s dangerousness. (See People v. Brugman (2021) 62 Cal.App.5th 608, 637 [the court “ ‘is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.’ ”]; see also Gonzalez, supra, at p. 225 [defendant must affirmatively demonstrate the court misunderstood its discretion].) Moreover, at the resentencing hearing, the trial court stated defendant was “in a position of trust [and] molested not only the three victims in this case, who were family members, but also . . . other family members, both male and female.” These offenses were not committed with brute force or due to defendant’s relative youth. Defendant was able to commit the sex offenses against children because he held this position of trust with the victims.

9 Given his lack of rehabilitative efforts related to the targeted offenses, the trial court reasonably believed that defendant’s advanced age would not prevent him from committing these sexual offenses against minors in the future. Therefore, we cannot conclude the trial court applied an incorrect legal standard when it determined a lesser sentence would endanger public safety.

DISPOSITION

The February 5, 2025 order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, P. J.

We concur:

MORI, J.

TAMZARIAN, J.