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SB 567 – Can Remand Be Unnecessary on Upper Term?

Prosecutors charged Chris Berdoll in San Luis Obispo County Superior Court with 24 counts of using a minor to pose to create media depicting sexual acts (Penal Code § 311.4(c)) (counts 1-24) and one count of possession of matter depicting a minor engaged in sexual acts (Penal Code § 311.4(a))(count 25).

Berdoll taught fifth grade in Atascadero.  In August 2018, a student told police that she saw Berdoll hold his cell phone under another student’s desk and take pictures or videos.

Police confiscated Berdoll’s cell phone and found multiple photos and videos of Berdoll’s students.  Some of the photos had student’s faces superimposed onto the naked bodies of other children.  Others had images of Berdoll superimposed in a way that made it appear he was engaged in sexual acts with his students.

When Berdoll entered his plea, over the People’s objection, the judge said that he intended to sentence Berdoll to the upper term of three years on count 1 and run all other sentences concurrently if he pleaded guilty or no contest.  The judge noted two aggravating circumstances supporting such an upper term sentence: the crimes involved young, prepubescent girls and Berdoll carried out his crimes in a planned, sophisticated manner by “directing the victims to move in a certain way in order to capture some of [his photographs].”  Berdoll then pleaded no contest to all charges.

At sentencing, the judge said that he was revising his previously indicated sentence upward from three years to four year and four months.  Although the judge noted Berdoll was eligible for probation, it concluded probation was inappropriate and a longer prison sentence was justified because his crimes represented “a massive violation of . . . trust” that persisted for “such a long time.”  Moreover, the young girls had a reasonable expectation of privacy in the classroom. 

The judge acknowledged that his crimes involved no physical touching and that he had no prior criminal history.
Berdoll declined to withdraw his plea and the judge imposed the four year four month sentence.

After he was sentenced, Senate Bill 567 became law, altering the trial court’s sentencing discretion .  Senate Bill 567 amended Penal Code § 1170(b), making the middle term of imprisonment the presumptive sentence.  “A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant had either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt.” 

These amendments did apply retroactively to Berdoll’s sentence because his conviction was not final when this legislation took effect.

Berdoll consequently filed a petition for resentencing in the Second Appellate District Court, which denied his request for resentencing.  The reader of this article may find this surprising since Berdoll neither “stipulated to facts underlying those circumstances” supporting an upper term sentence and nor did a jury or judge (in a bench trial) find “such circumstances true beyond a reasonable doubt.”

The Second Appellate District held that it rejected a “literal reading” of the statute when to otherwise “follow the statute had no effect and squanders judicial resources.”  The Second Appellate District then explained how the undisputed evidence was that Berdoll was a grade-school teacher for many years who “abused his position of trust by surreptitiously taking photographs and videos of his students and manipulating those images in pornographic ways.”

The Second Appellate District cited to two other cases that supported its position that remand was unnecessary, despite no stipulation from defendant or findings by a jury or judge, when the facts and circumstances were clearly so horrendous that the error was harmless.  People v. Flores (2022) 75 Cal. App. 5th 495, at 500; citing to People v. Sandoval (2007) 41 Cal. 4th 825, 839 (“If a reviewing court concludes beyond a reasonable doubt , that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,” the error is harmless).

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