Filed 7/17/13 P. v. Gutierrez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. PETE GUTIERREZ, JR., Defendant and Appellant. F063667 (Super. Ct. No. F10906329)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Wiseman, J. and Levy, J.2 Appellant Pete Gutierrez, Jr., was c onvicted following a jury trial of sexual offenses, and the trial court sentenced hi m under the “One Strike” law (Pen. Code, § 667.61) 1 to 25 years to life for two of his convictions. Appellant argues that the sentence violates the ex post facto clau ses of the United States and California
Constitutions because his offenses were co mmitted before the effective date of the applicable provision of the one strike law, and respondent concedes that the trial court erred. We find the concession appropriate, vacate appellant’s sentence, and remand the matter for resentencing under the law in effect at the time appellant committed his offenses. We also agree with the parties that the abstract of judgment incorrectly reflects appellant was sentenced under the “Three Strikes” law, rather than the One Strike law. Therefore, following resentencing, the amende d abstract of judgmen t should be carefully
rendered to include correct references to applicable sentencing provisions.
FACTUAL AND PROCEDURAL BACKGROUND Because appellant raises only senten cing error on appeal, a summary of the underlying facts supporting ap pellant’s convictions is not necessary. Appellant was charged in an information on Ma y 2, 2011, with three counts of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a)), as follows: count 1 occurring between January 1, 1996, and May 7, 2002; count 2 oc curring between June 26, 2008, and December 15, 2010; and count 3 occurring between March 3, 2008, and December 15, 2010. With respect to each count, the information allege d multiple victims within the meaning of the One Strike law (former § 667.61, subd. (e)(5), now § 667.61, subd. (e)(4)). Following a jury trial, appellant was f ound guilty of all coun ts. The jury also found true the multiple-victim allegations. The sentencing minute order and abstract of

1 All further statutory referen ces are to the Penal Code.3 judgment indicate the trial court sentenced a ppellant to an aggregate prison term of 65 years to life as follows: 15 years to life on count 1, plus two c onsecutive 25-year-to-life terms on counts 2 and 3. This timely appeal followed.
DISCUSSION Appellant contends his se ntence of 25 years to life on counts 2 and 3 under the One Strike law violates the ex post facto clauses of the United States and California Constitutions because it imposed a greater punishment for his offense than was authorized by law when the offe nses were committed. He re quests that this court vacate his sentence and remand the matter for resentencing. The One Strike law (§ 667.61) originally went into effect on November 30, 1994. ( People v. Alvarez (2002) 100 Cal.Ap p.4th 1170, 1178 ( Alvarez ).) The indeterminate life terms prescribed by section 667.61 “greatly exceed the determinate sentences previously
available for violations of section 288 [and other sexual offenses.]” ( People v. Hiscox (2006) 136 Cal.App.4th 253, 257 ( Hiscox ).) “Both the Californi a and United States Constitutions proscribe ex post facto laws. (U.S . Const., art. I, § 10; Cal. Const., art. I, § 9.) The federal and state prohibitions agai nst ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed. [Citation.]” ( Alvarez, at p. 1178, fn. omitted.) “[I]t is the prosecution’s responsibility to prove to the jury that th e charged offenses oc curred on or after the effective date of the statute providing fo r the defendant’s punishment. When the
evidence at trial does not establish that fact , the defendant is en titled to be sentenced under the formerly applicable st atutes even if he raised no ob jection in the trial court.” ( Hiscox, at p. 256.) In sentencing appellant to 25-year-to-life terms on counts 3 and 4, the trial court apparently relied on section 667.61, subdiv ision (j)(2), which provides: “Any person4 who is convicted of an offense specifi ed in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a ch ild under 14 years of

age , shall be punished by imprisonment in the state prison for 25 years to life .” (Italics added.) As the parties observe, this sent encing provision did not go into effect until September 9, 2010, as part of the “Chelsea King Child Predator Prevention Act of 2010” popularly known as “Chelsea’s Law.” (Stats. 2010, ch. 219, § 1 et seq.) Appellant argues, respondent concedes, and we agree that, notwithstanding the dates alleged in the informati on, the evidence at trial es tablished that the qualifying offenses for the multiple-victim allegations in counts 2 and 3 occurred prior to September 9, 2010, the effective date of section 667.61, subdivision (j)(2). Th e victims of counts 2 and 3, who lived out of town and visited appellant during their summer vacations, both testified the last time appella nt sexually abused them was in the summer of 2010; and the
mother of one of the victims described the ti me frame of summer visits as being between the latter part of July and the early part of August. It is therefore appropriate to remand the matter for resentencing on counts 2 and 3 under the law in effect at the time of appellant’s offenses. ( Hiscox , supra , 136 Cal.App.4th at pp. 259, 262; Alvarez , supra , 100 Cal.App.4th at p. 1178.) It is also appropriate to remand the matte r for resentencing on count 1. As the parties observe, while the abstract of judgme nt and sentencing minute order indicate the trial court sentenced appellant to 15 years to life on count 1, the court orally pronounced a sentence of 25 years to life. The par ties assume the One Strike multiple-victim circumstance (mandating a 15-years-to-life se ntence) is applicable to appellant’s
conviction of continuous sexual abuse (§ 288.5) in count 1. However, this assumption appears to be incorrect b ecause continuous sexual abuse was not a qualifying offense under the One Strike law at the time appellant committed the offens e; i.e., between 1996 and 2002. (See People v. Palmer (2001) 86 Cal.App.4th 440 , 445, review den.) A5 violation of section 28 8.5 did not become a qualifying offense for purposes of the One Strike law until September 20, 2006 . (Stats. 2006, ch. 337, § 33.) Finally, the abstract of judgment errone ously indicates appellant was sentenced under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) rather than the One Strike law (§ 667.61), and must therefore be corrected.
DISPOSITION The judgment of conviction is affirmed but appellant’s sentence is vacated and the matter is remanded for resentencing under th e law in effect at the time appellant
committed his offenses. The am ended abstract of judgment shall be rendered to reflect application of the correct sentencing prov isions and forwarded to the appropriate
authorities.