Filed 6/15/21 P. v. Gonzalez CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ISMAEL ALEJANDRO GONZALEZ,

Defendant and Appellant.

 B303455

 (Los Angeles County

 Super. Ct. No. BA469077)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. James R. Dabney, Judge. Affirmed in part and 

reversed and remanded.

Victoria A. Stafford, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle and Rene 

Judkiewicz, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________
2

Ismael Gonzalez was convicted of 11 counts of child sexual 

abuse involving three victims: lewd acts on a child under age 14 

(Pen. Code, § 288, subd. (a);1counts 1, 2, 3, 14, 15, 16, 19); 

continuous sexual abuse (§ 288.5; count 4); lewd acts on a child 

age 14 or 15 (§ 288, subd. (c)(1); counts 5, 6); and oral copulation 

of a child age 10 or under (§ 288.7, subd. (b); count 13). For the 

section 288, subdivision (a) counts and the section 288.5 count, 

the jury found true the multiple victim circumstance in the One 

Strike law. (§ 667.61, subds. (b), (c).) 

Gonzalez was sentenced to 120 years to life plus two years 

and eight months. That consisted of six consecutive One Strike 

terms of 15 years to life for the section 288, subdivision (a) 

violations (counts 1, 2, 3, 14, 15, 16); a consecutive One Strike 

term of 15 years to life for the violation of section 288.5 (count 4); 

a consecutive term of 15 years to life for the violation of section 

288.7, subdivision (b) (count 13); plus consecutive determinate 

terms of two years and eight months respectively for the section 

288, subdivision (c) violations (counts 5, 6). The court stayed the 

One Strike term on count 19. 

Gonzalez does not challenge his convictions, so we forego 

reciting the horrific facts in this case. The parties agree the trial 

court committed three sentencing errors: (1) The court violated 

ex post facto principles by applying the One Strike law to the 

section 288.5 violation in count 4 because the offense was based 

entirely on acts that predated the addition of section 288.5 to the 

One Strike law. (2) The court failed to exercise its discretion to 

impose concurrent or consecutive sentences based upon a 

mistaken belief consecutive sentencing was mandatory. (3) The 

1 Undesignated statutory citations refer to the Penal Code.
3

court erroneously refused to grant presentence conduct credit. 

Respondent also points out the abstracts of judgment omitted a 

$300 sex offender fine orally imposed at sentencing.

We agree these errors occurred. We remand for 

resentencing and otherwise affirm.

Ex Post Facto Violation

Gonzalez was convicted in count 4 for violating section 

288.5, which prohibits continuous sexual abuse of a minor under 

age 14. (§ 288.5, subd. (a).) The information alleged the acts 

underlying this offense occurred between 2002 and 2005, and the 

jury specifically found in the verdict form that the acts occurred 

during those years. As recommended by the People, the trial 

court sentenced Gonzalez to 15 years to life on this count by 

applying the One Strike law, which lists section 288.5, 

subdivision (a) among the offenses subject to its provisions. 

(§ 667.61, subds. (b), (c)(9).) 

Section 288.5 was not subject to the One Strike law until 

September 20, 2006, after the acts underlying this count. (Stats. 

2006, ch. 337, § 33, p. 2639.) Before that time, section 288.5 was 

not a One Strike offense. (People v. Valenti (2016) 243 

Cal.App.4th 1140, 1174.) “The indeterminate life sentences now 

prescribed by section 667.61 greatly exceed the determinate 

sentences of 6, 12, or 16 years previously available for violations 

of section 288.5. Thus, the ex post facto clause prohibits 

sentencing defendants under the One Strike law for section 288.5 

violations committed before September 20, 2006.” (Ibid., fn. 

omitted.)
4

Thus, Gonzalez’s One Strike sentence on count 4 must be 

vacated. On remand, the trial court should exercise its discretion 

to sentence him according to the determinate triad set forth in 

section 288.5.

Consecutive Sentencing

At sentencing, the People argued for consecutive sentences 

for all counts. Particularly, the People argued the One Strike 

counts required consecutive sentencing. Gonzalez argued for 

concurrent sentences, given his low risk of reoffending. The trial 

court imposed consecutive sentencing on 10 of 11 counts. The 

court explained: “I think legally based on the allegation that was 

found to be true, these counts are mandatory consecutive because 

they involve—some counts involve separate victims, other counts 

involve separate victims on separate occasions the way this was 

alleged.” It is not clear what the court meant by “these counts,” 

but the “allegation that was found true” must have referred to 

the only allegation in the case: the multiple-victim circumstance 

the jury found true for the seven One Strike counts pursuant to 

section 667.61, subdivision (e)(4).2

We interpret the court’s comment as a belief that the One 

Strike counts required mandatory consecutive 15-years-to-life 

terms. That belief was mistaken. 

We start with the six consecutive One Strike terms based 

on violations of section 288, subdivision (a) (counts 1, 2, 3, 14, 15, 

16). Section 667.61, subdivision (i) requires consecutive 

sentences only for certain One Strike crimes, namely those 

2

The court stayed the sentence for the section 288, 

subdivision (a) violation in count 19, so it was not subject to 

consecutive sentencing and we do not address it further.
5

offenses “specified in paragraphs (1) to (7), inclusive, of 

subdivision (c), or in paragraphs (1) to (6), inclusive, of 

subdivision (n),” so long as the “crimes involve separate victims 

or involve the same victim on separate occasions as defined in 

subdivision (d) of Section 667.6.” (§ 667.61, subd. (i).) Section 

288, subdivision (a) is not listed in paragraphs (1) through (7) of 

subdivision (c) or subdivision (n) of section 667.61. Hence, the 

One Strike law does not require mandatory consecutive 

sentencing for the section 288, subdivision (a) counts.

Even if we looked beyond the One Strike law, the 

conclusion is the same for these offenses. Section 667.6 lists 

certain sex offenses subject to mandatory consecutive sentencing 

if the crimes involve multiple victims or the same victim on 

separate occasions. Section 288, subdivision (a) is not listed. 

(§ 667.6, subd. (e).)

We move on to the violation of section 288.5 (count 4). 

Per our discussion above, it is not subject to the One Strike law. 

We are left with section 667.6. Section 667.6 does, in fact, list 

section 288.5 as an offense requiring mandatory consecutive 

sentencing if the crimes involved multiple victims, as the jury 

found here. However, section 288.5 was not added to section 

667.6 until 2006, after the acts underlying this offense. (Stats. 

2006, ch. 337, § 32.) For the same reasons discussed above, ex 

post facto principles prevent applying the mandatory consecutive 

sentencing provision to this count. (See People v. Simmons 

(2012) 210 Cal.App.4th 778, 797.) Hence, the 

consecutive/concurrent decision on this count is left to the trial 

court’s discretion. (§ 669; see People v. Woodworth (2016) 245 

Cal.App.4th 1473, 1479.)
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“ ‘Generally, when the record shows that the trial court 

proceeded with sentencing on the erroneous assumption it lacked 

discretion, remand is necessary so that the trial court may have 

the opportunity to exercise its sentencing discretion at a new 

sentencing hearing. [Citations.] Defendants are entitled to 

“sentencing decisions made in the exercise of the ‘informed 

discretion’ of the sentencing court,” and a court that is unaware 

of its discretionary authority cannot exercise its informed 

discretion.’ ” (People v. Woodworth, supra, 245 Cal.App.4th at 

p. 1480.) Remand is necessary for the court to exercise its 

discretion to impose consecutive or concurrent terms for each of 

these counts.

The court also imposed consecutive sentences on the 

remaining counts for violations of section 288.7, subdivision (b) 

(count 13) and section 288, subdivision (c) (counts 5, 6). There is 

no indication the court believed consecutive sentencing on these 

counts was mandatory. It is not; these offenses are not One 

Strike offenses and are not listed in section 667.6 as requiring 

consecutive terms. However, because we are vacating Gonzalez’s 

sentence on count 4 and remanding for reconsideration of the 

consecutive sentencing on other counts, the court may reevaluate 

all of its sentencing decisions in light of the changed 

circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893 

[“[W]hen part of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is appropriate, 

so the trial court can exercise its sentencing discretion in light of 

the changed circumstances.’ ”].)
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Presentence Conduct Credit

The trial court denied Gonzalez presentence conduct credit. 

It did not give a reason on the record, but the People argued 

conduct credit was barred by section 2933.2. That is wrong; 

section 2933.2 only bars conduct credit for defendants convicted 

of murder. (§ 2933.2, subd. (a).) 

On appeal, Gonzalez contends he is entitled to 15 percent 

conduct credit under section 2933.1. The Attorney General 

agrees. As discussed, Gonzalez was sentenced to seven 

consecutive One Strike terms (with one additional count stayed), 

and three consecutive terms under other statutes. Five of those 

offenses—counts 1, 2, 3, 4, and 5—were committed prior to 

September 20, 2006. Per our opinion here, count 4 is not subject 

to the One Strike law, so that leaves counts 1, 2, and 3 as One 

Strike counts that predate September 20, 2006. 

That date is critical because the One Strike law previously 

allowed up to 15 percent of actual credit as conduct credit, but 

the Legislature amended section 667.61, subdivision (j) of the 

One Strike law effective September 20, 2006 to remove that 

provision. (Stats. 2006, ch. 337, § 33, p. 2639.) Cases have 

examined the legislative history of this change and concluded the 

Legislature intended to eliminate conduct credit for One Strike 

offenses. (People v. Dearborne (2019) 34 Cal.App.5th 250, 267–

268; People v. Adams (2018) 28 Cal.App.5th 170, 181–182.)

The complication here is that this change only applies to 

some of Gonzalez’s offenses. We measure the entitlement to 

presentence conduct credits by the date of the offense. (People v. 

Ramirez (2014) 224 Cal.App.4th 1078, 1086.) This leaves 

Gonzalez with seven offenses that qualify for 15 percent conduct 

credit: counts 4, 5, 6, and 13, which qualify by their own terms 
8

regardless of date (§ 2933.1); and One Strike counts 1, 2, and 3, 

which predate the elimination of conduct credits in the One 

Strike law. One Strike counts 14, 15, and 16 postdate the 

elimination of the 15 percent conduct credit in the One Strike 

law. 

The question becomes: which offenses control calculation of 

presentence conduct credits when they straddle a change in the 

law? We asked the parties to brief this issue. Gonzalez argues, 

and the Attorney General concedes, Gonzalez is entitled to 15 

percent presentence conduct credit, notwithstanding the fact that 

he committed some of his One Strike offenses after the 

elimination of conduct credit in section 667.61, subdivision (j).

For the purpose of awarding presentence conduct credits, 

the trial court has an all-or-nothing choice. Gonzalez’s 

“presentence confinement cannot be divided among his various 

offenses, with the court applying one credit rate to those 

committed before [September 20, 2006], and a different rate to 

those committed after that date. His confinement must be 

‘indivisibly attributable to all of the offenses with which [he] is 

charged and of which he is eventually convicted.’ (In re Reeves

(2005) 35 Cal.4th 765, 775.)” (People v. Ramirez, supra, 224

Cal.App.4th at p. 1084; see People v. Nunez (2008) 167 

Cal.App.4th 761, 765 [section 2933.1 presentence conduct credit 

limit “applies to the offender, not the offense; thus, the 15 percent 

limit applies to each offense of a defendant’s entire prison term if 

any of the offenses for which he is sent to prison is violent”].)

Applying the post-2006 elimination of conduct credits to 

Gonzalez’s unitary term when some counts predated that change 

could raise ex post facto problems. (See Weaver v. Graham (1981) 

450 U.S. 24, 31–33.) We need not decide the issue. We accept the 
9

Attorney General’s concession Gonzalez is entitled to 15 percent 

presentence conduct credit. 

On remand, the trial court must calculate and award 15 

percent presentence conduct credit pursuant to section 2933.1. 

Days of custody credit are calculated from the date of arrest 

through the date of sentencing. (People v. Rajanayagam (2012) 

211 Cal.App.4th 42, 48.) While the court awarded 527 days of 

custody credit, the parties indicate the record does not actually 

reflect the date of Gonzalez’s arrest. Without that, calculating 

conduct credit under section 2933.1 is impossible. On remand, 

the trial court must recalculate the correct days of custody and 

conduct credit.

Sex Offender Fine

The trial court orally imposed a $300 sex offender fine. The 

fine is not reflected in the abstracts of judgment. The court must 

ensure the fine is reflected in the abstract of judgment issued 

after resentencing.

DISPOSITION

Gonzalez’s sentence is vacated. The case is remanded for 

resentencing consistent with this opinion. In all other respects, 

the judgment is affirmed.

BIGELOW, P. J.

We Concur:

GRIMES, J. WILEY, J.