People v. Herrera CA1/5

── People v. Herrera CA1/5 ── Court: California Court of Appeal Date: May 29, 2026 Category: General Filed 5/29/26 P. v. Herrera CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE THE PEOPLE, Plaintiff and Respondent, A170583 v. ROBERT ANTHONY HERRERA, (Sonoma County Defendant and Appellant. Super. Ct. No. SCR-750361-1) Defendant, Robert Anthony Herrera, appeals from his conviction following a jury trial for multiple counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 2 & 4)1 and multiple counts of lewd and lascivious acts on a child aged 14 or 15 (§ 288, subd. (c)(1); counts 6–9). On appeal, defendant argues: (1) the jury was incorrectly instructed that as to counts 6–9, the People must prove the child was 14 years old, rather than 14 or 15 years old; (2) the trial court violated his constitutional and statutory rights to a jury trial by imposing the upper term on count 2 based on two aggravating factors that the jury did not specifically find true as to count 2; and (3) remand for resentencing is required because the trial court relied on aggravating factors not found true by the jury. In 1 All statutory references are to the Penal Code unless otherwise stated. 1 supplemental briefing, defendant argues that the residual clause in California Rules of Court, rule 4.421(c),2 is unconstitutional based on the reasoning of Lovelace v. Superior Court (2025) 108 Cal.App.5th 1081 (Lovelace), and therefore the trial court was prohibited from relying upon it to consider additional aggravating factors. He further argues that People v. Wiley (2025) 17 Cal.5th 1069 (Wiley) supports his entitlement to a remand for resentencing based on the trial court’s consideration of an aggravating factor not found true by the jury. We remand for resentencing because the trial court relied on an aggravating factor not found true by the jury. BACKGROUND3 Defendant was the stepfather of Jane Doe 1 and Jane Doe 2. On June 17, 2022, the Sonoma County District Attorney filed an information charging defendant with four counts of lewd act upon a child, Jane Doe 1, under the age of 14 years (§ 288, subd. (a); counts 1 [in the car], 2 [in Doe 1’s bed], 3 [hugging and touching Doe 1], 4 [kissing Doe 1]) and five counts of lewd act upon a child, Jane Doe 2, age 14 or 15 years (§ 288, subd. (c)(1); counts 5 [in the car], 6 [massaging Doe 2], 7 [massaging Doe 2 at another time], 8 [in Doe 2’s bed], 9 [“ ‘motorboating’ ”]). The information also alleged as circumstances in aggravation that the victims were particularly vulnerable (rule 4.421(a)(3)) and that defendant took advantage of a position of trust or confidence to commit the offenses (rule 4.421(a)(11)).4 2 All references to rules are to the California Rules of Court. 3 We omit a detailed recitation of the facts underlying defendant’s offenses because they are not necessary to resolve the issues in his appeal. 4 The information alleged other aggravating factors, but the trial court granted the People’s motion to dismiss the other aggravating factors. 2  On August 22, 2023, a jury found defendant guilty on counts 2, 4, and 6–9, and not guilty on counts 1, 3, and 5. The jury also found true that Doe 1 and Doe 2 were particularly vulnera