People v. Dorado

• Decision Date: 11 October 2022
• Docket Number: D078342
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DANIEL DORADO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL DORADO, Defendant and Appellant.

D078342

California Court of Appeals, Fourth District, First Division

October 11, 2022

NOT TO BE PUBLISHED

Order Filed Date 10/31/22

APPEAL from a judgment of the Superior Court of San Diego County, No. SCD276163 Charles G. Rogers, Judge. Reversed in part and remanded for resentencing.

Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on October 11, 2022, be modified as follows:

1. At the end of the first paragraph on page 32, after the sentence ending "by examining the amended information," add the following sentence:

"Although defense counsel indicated during the pretrial hearing that she would need additional time to review the preliminary hearing testimony and amended information, as we discuss post at pages 33 and 34, defense counsel had ample opportunity to do so between the pretrial hearing and the time Dorado testified at trial."

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2. On page 35, line 10 of footnote 16, the words "footnote 20" are replaced with "footnote 17" so that the sentence reads:

"But as we later discuss in footnote 17, this case is not governed by Aguayo."

There is no change in the judgment.

Appellant's petition for rehearing is denied.

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DO, J.

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INTRODUCTION

Over the span of nearly a decade, Daniel Dorado, a local business owner, lured four women to meet him in ostensible job interviews or dates arranged through online dating websites. On each occasion, he provided alcohol to the woman until she was intoxicated or unconscious, and then sexually assaulted her while she was incapacitated. A jury convicted Dorado of committing 20 counts of sex crimes against the four victims, including rape, sexual penetration, and oral copulation of an unconscious or intoxicated person, as well as assault with intent to commit specified sex offenses.^[1] The trial court sentenced Dorado to a prison term of 40 years.

Dorado does not challenge whether there is sufficient evidence to support the jury's verdict. He asserts his convictions must be reversed on three grounds. First, he claims he did not receive his constitutionally required notice of the factual basis of two charges on which he was convicted. Second, he claims his convictions on four counts of assault with intent to commit rape, oral copulation, or sexual penetration of an unconscious or intoxicated person must be reversed because each is a lesser included offense of the completed offenses of rape, oral copulation, or sexual penetration of an unconscious or intoxicated person for which he was convicted. Third, in supplemental briefing, Dorado asserts the trial court committed instructional error in connection with the charges of aggravated sexual assault. We find no merit to these claims.

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Dorado raises numerous issues regarding his sentence. He contends that categorizing him as a violent felon based on his aggravated sexual assault convictions under Penal Code^[2] section 667.5, subdivision (c)(15), which reduces the rate at which he earns conduct credits, violates his constitutional rights to due process and equal protection. We reject this claim. However, we conclude that we must vacate Dorado's sentence in light of two new laws that became effective while this appeal was pending. First, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) amended section 1170, subdivision (b), to limit the situations under which an upper-term sentence could be imposed. Second, Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) amended section 654 to change the discretion of sentencing courts as to which of multiple prison terms to stay or execute. The trial court's sentencing decisions are affected by both of these statutory amendments. Consequently, we vacate Dorado's sentence and remand for resentencing under the current versions of sections 1170, subdivision (b), and 654. We also vacate any portion of the $154 criminal justice administration fee imposed pursuant to now-repealed Government Code section 29550.1 that remains unpaid as of July 1, 2021. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Evidence

Dorado was charged in an amended information with 35 felony counts of sex crimes committed against eight different women. The jury convicted

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Dorado on 20 counts involving four women: Jane Does 1 through 4.^[3] The jury failed to reach verdicts as to 12 counts, including two counts involving Jane 2 and 10 counts involving Jane Does 5 through 7. The trial court later dismissed these counts without prejudice. The jury acquitted Dorado on three counts involving Jane Doe 8. (See Appendix.) Because Dorado does not challenge the sufficiency of the evidence to support the convictions, we limit our factual summary to the trial evidence relating to the guilty counts only, focusing on the facts that relate to the issues he raises on appeal.

A. Jane 1 (Counts 1 through 7)

In 2009, 31-year-old Jane 1 was working part-time doing promotional work for Dorado's car dealership business. On December 23, Dorado asked to meet with her in person to discuss a full-time position. He told her to meet him at a coffee shop in the late afternoon that day. Jane 1 had recently been laid off, and her husband had lost his job, so she was interested in the opportunity.

Jane 1 arrived and parked outside the coffee shop. Dorado pulled into the parking lot in a Corvette. He told Jane 1 the coffee shop was too noisy and crowded, and suggested they go somewhere else. He invited her to get in his car, and she agreed.

After stopping briefly at his residence, Dorado parked his car in the parking lot of a nearby train station. He opened a bottle of champagne, filled two champagne glasses, and handed one to Jane 1. She accepted the champagne to be polite, and they drank as Dorado drove around and pointed

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out equestrian properties. Dorado threw the empty champagne bottle and Jane 1's champagne glass, but not his own, out the window of his car.

Dorado then drove to a hotel. By the time they arrived at the hotel, Jane 1 was feeling "[b]uzzed" and a little dizzy and unsteady from the champagne. She felt different from how she would normally feel after drinking one glass of champagne.

Dorado directed Jane 1 to a bar inside the hotel. Without asking her if she wanted a drink, he ordered them each a glass of wine. After drinking from her glass, Jane 1 went to the restroom. When she returned, Dorado had ordered her a second glass of wine even though her first glass was still half full. She finished the first glass of wine and drank from the second glass.

Jane 1 went to the restroom again. She became very dizzy and unsteady, and had to put her hands on the walls of the bathroom stall to steady herself. She tried to send her husband a text message but did not remember sending it. Based on her previous drinking experience, the way she was feeling was not consistent with the amount of alcohol she had consumed. When she left the restroom, Dorado was sitting in a chair in the hallway. He pulled her onto his lap and tried to kiss her, but she turned away.

After this point, Jane 1's memory became blurry, and she had difficulty giving a timeline of events. She remembered Dorado giving her a glass of Amaretto, from which she took a couple sips, and a glass of Courvoisier, which she also sipped. She vaguely remembered holding the handrail next to some steps. She remembered "being seat-belted into . . . Dorado's car and feeling vomit in [her] mouth." Dorado later told her she had vomited inside his car.

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The next thing Jane 1 remembered was waking up in a dark room. She was on a bed, and Dorado was there. She was nude except for her bra, which was over her shoulders but was unfastened so that her breasts were exposed. She felt pain in her rectum, and she smelled vomit in her hair. She did not know where she was.

She was scared and asked Dorado for her belongings. She put her clothes on. As she walked downstairs, she saw vomit all over the stairs, wall, and carpet. She asked Dorado what had happened, but he was dismissive. He just told her she was "very drunk" and "kind of laughed it off." Jane 1 told him she smelled vomit, and he said she had vomited in his car. He drove her back to the coffee shop parking lot where she had left her car. While they were driving, she asked Dorado what happened several times. He continued to dismiss her questions, telling her she got very drunk. She told him she was married, and he told her not to tell her husband "[w]hat had just happened."

It was around midnight when Dorado dropped Jane 1 off at her car. When she got home, her husband told her she smelled of vomit and looked like she "was drugged or something." He asked where she had been, but she "didn't have any words." He called the Sheriff's Department, and a deputy responded to their home. The deputy asked Jane 1 if she believed Dorado had raped her; she told him she did not know. She felt uncomfortable talking to the deputy, "a man that [she] didn't know." After the deputy left, Jane 1 used the restroom. When she finished, she found blood in the toilet, enough to "fill [up] the toilet bowl." The blood could have been coming from her vagina. She took a shower and went to bed.

The following morning, Jane 1 went to a women's clinic and reported that she believed she had been raped. Unlike with the deputy, Jane 1 felt

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safer at the women's clinic. A woman at the clinic contacted law enforcement. At a detective's request, Jane 1 drove to a police...