P. v. Jasso CA4/1

California Court of Appeal · D062891 · 2013-06-27 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD238168
Trial judge: Louis R. Hanoian
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, McINTYRE

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:53Z · confidence high

The trial court sentenced the defendant to the upper term of five years for transporting cocaine, relying on aggravating factors including the defendant's induction of others, planning and sophistication, and the increasing seriousness of her prior convictions. The Court of Appeal affirmed the judgment, holding that the defendant forfeited the issue by failing to object at trial and that the factors used were legally valid.

Ruling reviewed	Standard	The court	The model
Forfeiture of the right to challenge the upper term sentence due to failure to object at trial. “Jasso failed to object when the court imposed the upper term based on aggravating factors. Thus, she forfeited the right to challenge the court's sentencing discretion when it imposed the upper term.”	de novo	correct	agree with court The court correctly applied the standard rule that issues not raised in the trial court are forfeited on appeal, citing People v. Scott. The defendant's ineffective assistance of counsel argument was rejected as insufficient to overcome forfeiture.
Use of 'planning and sophistication' as an aggravating factor to impose the upper term. “Here, Jasso engaged in planning when she arranged with Carlitos to have her 'girls' pick up the nine kilograms of cocaine in Mexico and transport the drugs back to the United States.”	abuse of discretion	correct	agree with court The court found that the defendant's methodical arrangement of the drug transport, including the use of a scout car and children as decoys, constituted planning and sophistication under Rule 4.421(a)(8) and People v. Lai.
Use of 'increasing seriousness of prior convictions' as an aggravating factor to impose the upper term. “Because Jasso's current conviction exposed her to a range of punishment greater than the ranges of punishment she was exposed to by her prior convictions, the court properly relied on the increased seriousness of the offense as an aggravating factor to impose the upper term.”	abuse of discretion	correct	agree with court The court compared the statutory sentencing ranges of the current offense and the prior convictions, finding that the current offense carried a greater potential punishment, thus satisfying the 'increasing seriousness' requirement under Rule 4.421(b)(2) and People v. McGee.

Authorities

relied: People v. Scott (1994) 9 Cal.4th 331 — A defendant forfeits the right to raise an issue on appeal when he or she does not object in the trial court.
relied: People v. Black (2007) 41 Cal.4th 799 — A court may impose the upper term based on only one aggravating factor, and factors must make the crime distinctively worse than the ordinary.
relied: People v. Lai (2006) 138 Cal.App.4th 1227 — A crime involves planning or sophistication when it is methodically carried out; the defendant need not be the mastermind.
relied: People v. Forster (1994) 29 Cal.App.4th 1746 — Planning can be an aggravating factor when a defendant engages in specific actions to facilitate the crime, such as driving to another jurisdiction for the purpose of committing the offense.
relied: People v. McGee (2006) 38 Cal.4th 682 — The seriousness of a conviction is determined by whether the new offense subjects a defendant to more punishment than the prior offense based on the law from the same jurisdiction.

The appellate opinion: sound — The opinion is sound because it correctly applies the forfeiture doctrine and provides a detailed analysis of why the specific aggravating factors used by the trial court were legally permissible under California Rules of Court and controlling case law. It addresses both the procedural bar and the merits of the sentencing factors.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The trial court, after Jasso pleaded guilty to transporting cocaine and related counts with a 10-year lid, imposed the five-year upper term on the transportation count (plus a mandatory five-year weight enhancement), citing inducement of others, planning or sophistication, and prior convictions of increasing seriousness as aggravating factors. The Court of Appeal held the challenge to the aggravating factors forfeited for lack of objection, alternatively found all three factors valid so that no abuse of discretion occurred, declined to reach the ineffective-assistance claim, and affirmed.

Ruling reviewed	Standard	The court	The model
Imposition of the upper term — challenge to aggravating factors forfeited by failure to object at sentencing “Jasso failed to object when the court imposed the upper term based on aggravating factors. Thus, she forfeited the right to challenge the court's sentencing discretion when it imposed the upper term.”	de novo	correct	agree with court People v. Scott squarely holds that complaints about the trial court's statement of reasons and its discretionary sentencing choices, including reliance on allegedly improper aggravating factors, are forfeited absent a contemporaneous objection. The opinion states no objection was made, so the forfeiture holding follows directly from Scott.
Reliance on inducement of others (rule 4.421(a)(4)) as an aggravating factor supporting the upper term “These aggravating factors were sufficient to support the upper term.”	abuse of discretion	correct	agree with court Jasso conceded she induced Ramos, Frias, and her 17-year-old son to participate in the transportation scheme, and under Black a single valid aggravating factor suffices to support the upper term. Because this factor was unchallenged and admitted, it independently sustains the sentence regardless of the other two factors.
Reliance on planning or sophistication (rule 4.421(a)(8)) as an aggravating factor “She also methodically carried out the plan by using a scout car, children as decoys, and family members to commit the crime.”	abuse of discretion	correct	agree with court The facts recited—intercepted calls arranging the pickup of nine kilograms in Tijuana, a scout car, couriers with children as cover, and concealment in a diaper bag and purse—reasonably show a methodically executed crime under Lai, which does not require the defendant to be the mastermind. The court's conclusion is consistent with the deferential review of a sentencing choice.
Reliance on prior convictions of increasing seriousness (rule 4.421(b)(2)) as an aggravating factor “Because Jasso's current conviction exposed her to a range of punishment greater than the ranges of punishment she was exposed to by her prior convictions, the court properly relied on the increased seriousness of the offense as an aggravating factor to impose the upper term.”	abuse of discretion	correct	agree with court The factor was likely valid because the priors themselves escalated: a 1998 state possession-for-sale conviction (16 months/2/3 years) followed by a 2003 federal conviction for possessing over 1,000 kilograms of marijuana with intent to distribute carrying a 10-year mandatory minimum, which is what Black contemplates. However, the opinion misframes the rule by comparing the current offense to the priors rather than the priors to each other, and it cites McGee for a proposition about defining seriousness that McGee, an Apprendi/record-of-conviction case, does not address; the federal statutory citation is also garbled. The result is right but the reasoning is not.
Ineffective assistance of counsel claim for failure to object to aggravating factors “Accordingly, we need not examine Jasso's claim that her counsel provided ineffective assistance when he did not object to two of these factors.”	unclear	not reached	agree with court Because the court found all the challenged aggravating factors valid, and one admitted factor alone sufficed under Black, an objection would not have produced a different result, so there could be no prejudice under Strickland. Declining to reach the claim was therefore appropriate.

Authorities

relied: People v. Scott (1994) 9 Cal.4th 331 — Claims that the trial court relied on improper aggravating factors or otherwise erred in its discretionary sentencing choices are forfeited if not raised by objection at sentencing.
relied: People v. Black (2007) 41 Cal.4th 799 — A single valid aggravating factor is sufficient to support an upper term; whether prior convictions are of increasing seriousness may be determined from the types of offenses and their statutory punishment ranges.
relied: People v. Lai (2006) 138 Cal.App.4th 1227 — Planning or sophistication as an aggravating factor is shown where the crime is methodically carried out; the defendant need not be particularly sophisticated or the mastermind.
relied: People v. Forster (1994) 29 Cal.App.4th 1746 — Upper term upheld where defendant's conduct in arranging the circumstances of his offense showed planning.
misapplied: People v. McGee (2006) 38 Cal.4th 682 — McGee holds that a trial court may examine the record of a prior conviction to determine whether it qualifies as a serious felony or strike without violating the Sixth Amendment under Apprendi; it does not define 'increasing seriousness' under rule 4.421(b)(2) by comparing the current offense's punishment to the priors.
missed: People v. Sandoval (2007) 41 Cal.4th 825 — A trial court's selection of the upper term is reviewed for abuse of discretion and will be upheld unless the decision is irrational or arbitrary; the court should have articulated this governing standard.

The appellate opinion: sound with gaps — The forfeiture holding follows Scott, and the affirmance is independently supported by the admitted inducement factor under Black's single-factor rule, so the result is defensible. The increasing-seriousness analysis, however, misstates rule 4.421(b)(2) by comparing the current offense to the priors and cites McGee for a proposition it does not stand for, and the opinion never states the governing abuse-of-discretion standard.

How this analysis was made · dispute it

inconsistent with cited authority

Opinion

Filed 6/27/13 P. v. Jasso 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, D062891

Plaintiff and Respondent, v. (Super. Ct. No. SCD238168)

DOLORES JASSO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Elizabeth M.

Carino, Deputy Attorneys General, for Plaintiff and Respondent. Dolores Jasso pleaded guilty to transporting cocaine (Health & Saf. Code,1 § 11352, subd. (a); count 1), possessing cocaine for sale (§ 11351; count 2), using a minor to sell or carry cocaine (§ 11353, subd. (b); counts 3, 5, 7), and felony child abuse (Pen. Code, § 273a, subd. (a); counts 4, 6, 8). Jasso admitted special allegations that the conviction for transporting cocaine was not for personal use (Pen. Code, § 1210, subd. (a); count 1), the substance containing cocaine weighed more than four kilograms (§ 11370.4, subd. (a)(2); counts 1, 2), and the substance was or contained at least 28.5 grams of cocaine or at least 57 grams of a substance containing cocaine (Pen. Code, § 1203.073, subd. (b)(1); counts 1, 2). The court told Jasso it would impose a 10-year lid on her sentence in exchange for her guilty plea. The court then sentenced Jasso to prison for 10 years: the upper term of five years for transporting cocaine, and a mandatory five years because the substance containing cocaine weighed more than four kilograms. The court also imposed and stayed the sentence on the count for possessing cocaine for sale, the special allegation that the cocaine weighed more than four kilograms as to count 2, the counts for using a minor to sell or carry cocaine, and the counts for felony child abuse.

Jasso appeals, contending the court abused its discretion when it sentenced her to the upper term of five years because it relied on two improper aggravating factors. Jasso further contends she did not forfeit her right to raise this issue on appeal because her trial 1 Statutory references are to the Health and Safety Code unless otherwise specified. 2 counsel provided ineffective assistance when he failed to object to the court's use of the aggravating factors during the sentencing hearing. We affirm the judgment.

FACTS

The Drug Enforcement Agency (DEA) intercepted telephone calls between Jasso and someone called Carlitos. Carlitos told Jasso to have her "girls" pick up nine kilograms of cocaine from Tijuana, Mexico and transport it to the United States.

On August 1, 2011, San Clemente checkpoint agents detained Jasso and her two codefendants, Diana Ramos and Lorraine Frias, based on the DEA investigation. Jasso's 17-year-old son was driving a car with Jasso in the passenger seat and Jasso's 10-year-old son in the backseat. Ramos and Frias, Jasso's daughter, were in a car behind Jasso's car.

Ramos's one-year old-son and Frias's two-year-old daughter were also in the second car.

Ramos consented to a dog sniff of the second car. The dog alerted agents to bundles of cocaine inside Frias's diaper bag on the floor of the car. Later, agents found more bundles of cocaine inside Frias's purse. The agents found a total of 9.9 kilograms, about 20 pounds, of cocaine. Jasso, Ramos, and Frias were subsequently arrested, and their four children were taken into protective custody by Child Protective Services.

DISCUSSION

Jasso contends the court abused its discretion by relying on improper factors in aggravation to impose the upper term. Jasso asserts she can raise this issue on appeal even though defense counsel did not object at sentencing because, had counsel objected, there was a reasonable probability of a different outcome. We reject these contentions.

3 I

JASSO FORFEITED HER RIGHT TO RAISE THE ISSUE ON APPEAL

A defendant forfeits the right to raise an issue on appeal when he or she does not object in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353.) Jasso failed to object when the court imposed the upper term based on aggravating factors. Thus, she forfeited the right to challenge the court's sentencing discretion when it imposed the upper term.

THE COURT IMPOSED THE UPPER TERM BASED ON VALID AGGRAVATING FACTORS

Even if Jasso did not forfeit this issue on appeal, we conclude the court did not abuse its discretion when it imposed the upper term because it used valid aggravating factors. Accordingly, we need not examine Jasso's claim that her counsel provided ineffective assistance when he did not object to two of these factors.

A court may impose the upper term by relying on aggravating factors. (Cal. Rules of Court,2 rule 4.420.) A court may impose the upper term based on only one aggravating factor. (People v. Black (2007) 41 Cal.4th 799, 813.) A factor is "aggravating" if it makes a crime " 'distinctively worse than the ordinary.' " (Id. at p. 817.) Aggravating factors include those listed in the sentencing rules and those declared "aggravating" by statute, as well as any other facts that are " 'reasonably related to the decision being made.' " (Ibid.) The California Rules of Court list aggravating 2 All rule references are to the California Rules of Court. 4 factors such as whether a defendant induced others to commit the crime, whether the crime involved planning and sophistication, and whether the defendant's prior convictions are either "numerous or of increasing seriousness." (Rule 4.421.)

Jasso admits she induced others to participate in the crimes when she gave cocaine to Ramos and Frias to carry across the border. (See Rule 4.421(a)(4).) Jasso also admits she induced others to participate in the commission of the crime when she told her 17- year-old son to drive the scout car to help the second car transport cocaine into the United States. These aggravating factors were sufficient to support the upper term.

Jasso contends the court improperly used planning or sophistication (Rule 4.421(a)(8)) as an aggravating factor to impose the upper term. We disagree.

A crime involves planning or sophistication when it is methodically carried out.

(People v. Lai (2006) 138 Cal.App.4th 1227, 1259; see also People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759 [court imposed upper term for driving a car under the influence of alcohol because defendant engaged in planning when he drove to Mexico for the purpose of drinking alcohol].) The defendant need not be "a particularly sophisticated person" or the mastermind behind the plan. (Lai, supra, at p. 1259.)

Here, Jasso engaged in planning when she arranged with Carlitos to have her "girls" pick up the nine kilograms of cocaine in Mexico and transport the drugs back to the United States. She also methodically carried out the plan by using a scout car, children as decoys, and family members to commit the crime.

5 Thus, the court did not abuse its discretion when it imposed the upper term based on planning or sophistication.

Jasso further contends the court improperly relied on the "increasing seriousness of prior convictions" as an aggravating factor to impose the upper term. We disagree.

A court may impose the upper term if a defendant's prior convictions are numerous or of increasing seriousness. (Rule 4.421(b)(2).) The types of offenses and the statutory ranges of punishment of each prior conviction may determine whether a defendant's prior convictions are of increasing seriousness. (People v. Black, supra, 41 Cal.4th at pp. 819-820.) The seriousness of a conviction is determined by whether the new offense subjects a defendant to more punishment than the prior offense based on the law from the same jurisdiction. (People v. McGee (2006) 38 Cal.4th 682, 706.)

Jasso's prior convictions are of increasing seriousness based on the types of offenses and the statutory ranges of punishment of each conviction. In 1998, Jasso was convicted in state court of possessing marijuana for sale and was granted summary probation. The statutory sentencing range for possessing marijuana for sale is 16 months, two years or three years. (§ 11359; Pen. Code, § 1170, subd. (h).) In 2003, Jasso was convicted in federal court of possessing more than 1,000 kilograms of marijuana with intent to distribute and was sentenced to 46 months in federal prison with supervised release. The statutory sentencing range for this crime is no less than 10 years in prison.

(21 U.S.C. § 841(b)(viii).) The sentencing range for Jasso's current offense is three, four, or five years, which is greater than the range for her first conviction. The federal 6 equivalent sentencing range of the current offense, no less than 20 years in prison, is also greater than her prior federal drug conviction. (Ibid.)

Because Jasso's current conviction exposed her to a range of punishment greater than the ranges of punishment she was exposed to by her prior convictions, the court properly relied on the increased seriousness of the offense as an aggravating factor to impose the upper term.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

Cites, in this corpus

People v. Black S126182 · 2007-07-19
People v. McGee S123474 · 2006-05-22
People v. Lai B165662 · 2006-04-26
People v. Scott No. S037757 · 1994-12-30
People v. Forster D020031 · 1994-11-10