 


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                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                                F063667

              Plaintiff and Respondent,                                       (Super. Ct. No. F10906329)

                             v.

PETE GUTIERREZ, JR.,
                                                                                         OPINION
              Defendant and Appellant.



                                                               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, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney 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.

 
 



              Appellant Pete Gutierrez, Jr., was convicted following a jury trial of sexual
offenses, and the trial court sentenced him 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 clauses of the United States and California
Constitutions because his offenses were committed 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 amended abstract of judgment should be carefully
rendered to include correct references to applicable sentencing provisions.
                                       FACTUAL AND PROCEDURAL BACKGROUND
              Because appellant raises only sentencing error on appeal, a summary of the
underlying facts supporting appellant’s convictions is not necessary. Appellant was
charged in an information on May 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 occurring 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 alleged 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 found guilty of all counts. The jury also
found true the multiple-victim allegations. The sentencing minute order and abstract of

                                                            
1             All further statutory references are to the Penal Code.

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judgment indicate the trial court sentenced appellant to an aggregate prison term of 65
years to life as follows: 15 years to life on count 1, plus two consecutive 25-year-to-life
terms on counts 2 and 3. This timely appeal followed.
                                       DISCUSSION
       Appellant contends his sentence 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 offenses were committed. He requests 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.App.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 California 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 against 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 the charged offenses occurred on or after the
effective date of the statute providing for the defendant’s punishment. When the
evidence at trial does not establish that fact, the defendant is entitled to be sentenced
under the formerly applicable statutes even if he raised no objection 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, subdivision (j)(2), which provides: “Any person
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who is convicted of an offense specified in subdivision (c) under one of the
circumstances specified in subdivision (e), upon a victim who is a child 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 sentencing 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 information, the evidence at trial established 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). The victims of counts 2
and 3, who lived out of town and visited appellant during their summer vacations, both
testified the last time appellant sexually abused them was in the summer of 2010; and the
mother of one of the victims described the time 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 matter for resentencing on count 1. As the
parties observe, while the abstract of judgment 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 parties assume the One Strike multiple-victim
circumstance (mandating a 15-years-to-life sentence) is applicable to appellant’s
conviction of continuous sexual abuse (§ 288.5) in count 1. However, this assumption
appears to be incorrect because continuous sexual abuse was not a qualifying offense
under the One Strike law at the time appellant committed the offense; i.e., between 1996
and 2002. (See People v. Palmer (2001) 86 Cal.App.4th 440, 445, review den.) A
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violation of section 288.5 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 erroneously 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 the law in effect at the time appellant
committed his offenses. The amended abstract of judgment shall be rendered to reflect
application of the correct sentencing provisions and forwarded to the appropriate
authorities.
 




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