Filed 5/11/16

                            CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                  E063305

v.                                                 (Super.Ct.No. RIF1100130)

OMAR MARISCAL,                                     OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.

Affirmed with directions.

        Laura Schaefer, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Karl T. Terp,

Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       Prosecutors filed an information charging defendant and appellant, Omar

Mariscal, with five counts of raping his daughter (Pen. Code, § 261, subd. (a)(2), counts

1-5) when she was 15 years old and three counts of committing lewd and lascivious

conduct against her when she was 10 years old (§ 288, subd. (a),1 counts 6-8). The last

paragraph of the information, which appears under the heading and substantive offense

allegation for the count 8 lewd conduct charge, alleged “in the commission of the above

offense, the said defendant, OMAR MARISCAL, personally inflicted great bodily injury

upon a person . . . within the meaning of Penal Code section 667.61, subdivision (d)(6).”

       At the preliminary hearing and at trial, the prosecution presented testimony that

the victim had become pregnant and given birth to a child as a result of one of the rape

offenses. At trial, the jury heard evidence the victim suffered extreme pain while giving

birth. At the close of evidence, the trial court instructed the jury that if it found defendant

guilty of one of the rape charges, it must decide whether it is also true defendant

personally inflicted great bodily injury on the victim in committing the crime. The court

instructed the jury that committing rape does not by itself constitute inflicting great

bodily injury and great bodily injury “may or may not be established by pregnancy.” The

jury found defendant guilty on all counts and found he did personally inflict great bodily

injury on the victim in committing a rape offense. On November 6, 2014, after the

verdict but before sentencing, the trial court held an ex parte hearing and found the

“[i]nformation incorrectly reflects the leading charge for [the] enhancement,” ordered the


       1   Unlabeled statutory citations refer to the Penal Code.

                                              2
great bodily injury allegation in count 8 stricken, and added the allegation to the rape

counts.

       The trial court sentenced defendant to a term of 25 years to life in state prison on

count 1 under the version of the “One Strike” law (§ 667.61) that took effect on

September 9, 2010, after the offenses occurred. The court also imposed consecutive

upper term sentences of eight years for the other four rape counts (counts 2-5) and

consecutive two-year terms (one-third the midterm) for each of the lewd conduct counts

(counts 6-8). Defendant’s total prison term is a determinate term of 38 years plus an

indeterminate term of 25 years to life.

       On appeal, defendant challenges the sentence on count 1 on two grounds. First, he

contends the trial court erred by sentencing him under the One Strike law on count 1

because the information did not allege he inflicted great bodily injury in committing any

of the rape counts. Second, he contends the trial court erred by sentencing him to 25

years to life on count 1 because the version of the statute in effect at the time of the

offense called for a term of 15 years to life. The People respond sentencing defendant

under section 667.61 was proper, but concede the trial court sentenced defendant under

the wrong version of the statute.

       We conclude the trial court did not err by sentencing defendant under the One

Strike law, but defendant must be resentenced on count 1 to a term of 15 years to life.




                                              3
                                              I

                                     BACKGROUND

         A. Factual Background

         Jane Doe testified her father began molesting her when she was 10 years old. She

told the jury, “At first it just started off with him playing with me, tickling me, and then

just his hands started going in different places and I knew that it wasn’t right.” She

testified on one occasion defendant touched her breast under her bra. He kissed her on

her lips on another occasion. Another time, he touched her vagina and buttocks under her

clothing. Defendant stopped molesting Jane when she was 11 and did not resume until

she turned 15 years old.

         When Jane turned 15, defendant began raping her. According to Jane, the first

time, defendant “grabbed me and he pushed me to the bed.” He told her to stay still and

“it wasn’t going to hurt” and then started “touching everything,” took her pants off, and

penetrated her vagina with his penis. Jane testified he raped her approximately 10 more

times.

         In May 2010, Jane learned she was pregnant. She testified she had not had sexual

intercourse with anyone other than defendant. On October 23, 2010, Jane gave birth after

12 hours of painful labor. A criminalist with the California Department of Justice

testified, based on genetic analysis, there is a better than 99.99 percent chance defendant

is the father of Jane’s child.




                                              4
       B. Procedural Background

       At a preliminary hearing on August 14, 2014, the prosecution put on evidence

defendant molested Jane on at least two occasions and raped her between five and 10

times. The prosecution did not present any evidence of great bodily harm in relation to

the lewd conduct counts. The testifying deputy said only that Jane reported defendant

had touched her breasts and her vagina, both over and under her clothing. The

prosecution also presented testimony that one of the incidents of rape resulted in Jane’s

pregnancy and the birth of a child.

       On August 27, 2014, the prosecution filed an eight-count information against

defendant. In counts 1 through 5, the prosecution alleged defendant raped Jane five times

between June 2009 and June 2010, when Jane was 15 years old. In counts 6 through 8,

the prosecution alleged defendant committed three lewd and lascivious acts against Jane

between June 2004 and June 2005, when Jane was 10 years old. In the last paragraph of

the information, under the heading and substantive allegations of count 8, the prosecution

also alleged “in the commission of the above offense, the said defendant, OMAR

MARISCAL, personally inflicted great bodily injury upon a person, in violation of Penal

Code sections 12022.53, 12022.7 and 12022.8, within the meaning of Penal Code section

667.61, subdivision (d)(6).” The information does not describe the injury or how

defendant inflicted it.

       The court held a jury trial beginning on October 15, 2014. The prosecution

elicited testimony from Jane that she became pregnant by defendant and she experienced

extreme pain during a 12-hour labor. She described the pain as being a 10 on a scale of

                                             5
one to 10. The trial court instructed the jury: “If you find the defendant guilty of one of

the rape charges that led to pregnancy in 1 through 5, you must then decide whether the

People have proved the additional allegation that the defendant personally inflicted great

bodily injury on Jane during the commission of one of those crimes. Great bodily injury

means significant or substantial physical injury. It is an injury that is greater than minor

or moderate harm. Committing the crime of rape is not by itself the infliction of great

bodily injury. Great bodily injury may or may not be established by pregnancy. You are

the exclusive judges of whether the defendant personally inflicted great bodily injury.”

(See CALCRIM No. 3160.) The trial court did not instruct the jury on great bodily injury

in relation to counts 6 through 8.

       The jury returned a guilty verdict as to all eight counts. It also found “in the

commission of the offense charged under counts 1 through 5 of the information,

[defendant] did personally inflict great bodily injury upon a person within the meaning of

Penal Code section 667.61, subdivision (d), subsection (6).” After the jury returned its

verdict, the trial court held an ex parte hearing, found the “[i]nformation incorrectly

reflects the leading charge for enhancement,” ordered the great bodily injury allegation in

count 8 stricken, and added the allegation to count 1 “though applying to any one of

counts 001-005. Not Count 008.”

       Based on the jury’s finding defendant inflicted great bodily harm by committing

rape, the trial court sentenced defendant on count 1 under section 667.61. At the time of

the offenses, former section 667.61, subdivision (a) required an indeterminate sentence of

15 years to life. However, the trial court sentenced defendant under the version of the

                                              6
statute in effect at the time of trial and sentencing, which requires an indeterminate

sentence of 25 years to life. Defendant appeals and challenges the validity of the One

Strike sentence and, in the alternative, asks us to reduce that sentence to 15 years to life.

                                              II

                                       DISCUSSION

       A. Applying the One Strike Alternative Sentence to Count 1

       Defendant contends the trial court erred by sentencing him on count 1 under the

One Strike law because the prosecutor did not allege in the information that he inflicted

great bodily injury on his victim in committing that offense. He contends his sentence

violates his statutory and due process rights, issues we review de novo. (Citizens for

Hatton Canyon v. Dept. of Transportation (2003) 112 Cal.App.4th 838, 843.)

       “California’s One Strike law (§ 667.61) has set forth an ‘alternative and harsher

sentencing scheme for certain sex crimes.’ [Citation.]” (People v. Perez (2015) 240

Cal.App.4th 1218, 1223 (Perez).) For sex offenses falling within its reach, the statute

requires indeterminate life terms. (People v. Wutzke (2002) 28 Cal.4th 923, 926, 929.)

Among other offenses, the statute reaches the crimes of rape (§§ 261, subd. (a)(2);

667.61, subd. (c)(1)) and lewd and lascivious conduct with a child under 14 years old

(§§ 288, subd. (a); 667.61, subd. (c)(8)) under circumstances where the “defendant

personally inflicted great bodily injury on the victim . . . in the commission of the present

offense in violation of Section 12022.53, 12022.7, or 12022.8.” (§ 667.61, subd. (d)(6);

see also former § 667.61, subd. (e)(3).) The alternative sentence prescribed for such

offenses when committed under a One Strike circumstance exceeds the determinate

                                              7
sentences prescribed for the offenses alone. (§§ 264, subd. (a), 288, subd. (a).) Prior to

September 9, 2010, section 667.61, subdivisions (b) and (e)(3) mandated an

indeterminate 15-year-to-life sentence for offenses like defendant’s. An amendment,

which took effect in September 9, 2010, increased the sentence for such offenses to 25

years to life. (§ 667.61, subds. (a) & (d)(6); Stats. 2010, ch. 219, § 16, eff. Sept. 9, 2010.)

       The One Strike law specifies “[t]he penalties provided in this section shall apply

only if the existence of any circumstances specified in subdivision (d) or (e) is alleged in

the accusatory pleading pursuant to this section, and is either admitted by the defendant

in open court or found to be true by the trier of fact.” (§ 667.61, subd. (o); see also

former § 667.61, subd. (j).) In People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the

California Supreme Court explained this statutory requirement obligates the People to

allege “which qualifying circumstance or circumstances are being invoked for One Strike

sentencing.” (Id. at p. 752.) “In the Supreme Court’s view, this outcome is dictated not

only by the language of the One Strike law, but also by due process because ‘the fair

notice afforded by that pleading requirement may be critical to the defendant’s ability to

contest the factual bases and truth of the qualifying circumstances’; may be essential for

the defendant to assess his sentencing ‘exposure’; and may be necessary for the defendant

to know what he must admit to if he elects to enter a plea.’ [Citation.]” (Perez, supra,

240 Cal.App.4th at p. 1223, quoting Mancebo, supra, at pp. 746-747, 750, 752.)

       In Mancebo, the prosecution brought charges against a defendant for sexually

assaulting two victims on two separate occasions. (Mancebo, supra, 27 Cal.4th at

p. 740.) The prosecution also alleged the defendant used a gun and kidnapped the victim

                                              8
in one offense and used a gun and tied or bound the victim in committing the other

offense. (Ibid.) The prosecution alleged the occurrence of those circumstances with each

victim warranted One Strike sentences under section 667.61, subdivision (e). (Mancebo,

supra, at pp. 742-743.) The jury found the defendant guilty of the base crimes and found

the One Strike allegations true. In order to use the fact defendant used a gun in carrying

out the offenses to impose additional 10-year gun-use enhancements under section

12022.5, subdivision (a), the trial court chose not to rely on defendant’s use of a gun to

support a One Strike sentence. Instead, the trial court relied on the pleaded kidnapping

and tie-or-bind circumstances in combination with the unpled multiple-victim

circumstance to sentence defendant under the One Strike law. The Supreme Court held it

improper to use the multiple victim circumstance as a basis for the alternative sentence

because doing so violated “[t]he pleading and proof requirements of section 667.61,

subdivisions (f) and (i) [now (o)], and defendant’s due process rights.” (Mancebo, supra,

at p. 753.) The Supreme Court reached this conclusion despite the fact that the

prosecution did plead and prove there were multiple victims by convicting him of

committing crimes against two separate women. The Supreme Court explained the

allegations were insufficient “not because the defendant was never afforded notice that he

was being charged with crimes against two victims; he obviously was, and not because

defendant was never afforded notice that the One Strike law would apply to his case;

again, he was. Sentencing error occurred because defendant was given notice that gun

use would be used as one of the two pleaded and minimally required circumstances in

support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled

                                             9
circumstance of multiple victims to support the One Strike terms, and further imposed

two 10-year section 12022.5[, subdivision] (a) enhancements that could otherwise not

have been imposed but for the purported substitution.” (Ibid.)

       The question we are asked to decide is whether the pleading requirement

articulated in Mancebo requires reversal where the prosecution consistently indicated,

from the preliminary hearing through trial, that the One Strike circumstance related to

one count, but the information mistakenly pled the circumstance as to another count.

There is no question the information in this case failed to plead the One Strike

circumstance in connection with the rape offenses. The information alleged eight counts.

Each of the first seven counts appears in a single paragraph under its own heading.

Counts 1 through 5 alleged defendant “did wilfully and unlawfully, by means of force,

violence and fear of immediate and unlawful bodily injury to a person, have and

accomplish an act of sexual intercourse with and against the will of JANE DOE, a female

person not his wife.” Counts 6 and 7 alleged defendant “did wilfully, unlawfully, and

lewdly commit a lewd and lascivious act upon and with the body and certain parts and

members thereof of JANE DOE, a child under the age of fourteen years, with the intent

of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said

defendant and said child.” Under the header “Count 8,” the information repeats the

allegations of counts 6 and 7 and adds a second paragraph alleging “in the commission of

the above offense, the said defendant, OMAR MARISCAL, personally inflicted great

bodily injury upon a person . . . within the meaning of Penal Code section 667.61,



                                             10
subdivision (d)(6).” Thus, the information on its face alleges a One Strike circumstance

as to count 8, but not as to counts 1 through 7.

       It is equally clear pleading the great bodily injury circumstance as referring to one

of the lewd conduct offenses was a mistake. The prosecution presented its case at a

preliminary hearing, before filing the information. At the hearing, an investigator for the

Riverside County Sheriff’s Department testified about Jane’s allegations against

defendant. That testimony provided the factual basis for the counts in the information.

The prosecution presented no evidence any of the lewd conduct offenses involved great

bodily harm. The investigator testified only that Jane said defendant had touched her

breasts and had touched her vagina over and under her clothing. In relation to the rape

offenses, however, the investigator testified defendant started raping Jane after she turned

15, raped her more than five but fewer than 10 times, and “as a result of the rapes . . . she

became pregnant and had her son.” It has long been established impregnating a victim

during a rape may constitute the infliction of great bodily injury. (People v. Sargent

(1978) 86 Cal.App.3d 148, 151-152.) Thus, the prosecution established at the

preliminary hearing a basis for alleging defendant inflicted great bodily harm by raping

and impregnating Jane when she was 15 years old, but did not establish a basis for

alleging defendant inflicted great bodily harm when he touched her in a lewd fashion

when she was 10 years old.

       The trial proceeded along the path marked out at the preliminary hearing. Jane

testified defendant had touched her breasts, vagina, and buttocks on a few occasions

when she was 10 and 11 years old. But she did not testify he touched her in a violent

                                             11
fashion or otherwise inflicted physical injury. She also testified defendant raped her on

more than 10 occasions when she was 15. She said she had never had sexual intercourse

with anyone but defendant and she became pregnant and bore a child as a result of one of

the incidents of rape. She also testified she had endured a 12-hour labor that was

extremely painful. The trial court instructed the jury: “If you find the defendant guilty of

one of the rape charges that led to pregnancy in 1 through 5, you must then decide

whether the People have proved the additional allegation that the defendant personally

inflicted great bodily injury on Jane during the commission of one of those crimes. . . .

Great bodily injury may or may not be established by pregnancy. You are the exclusive

judges of whether the defendant personally inflicted great bodily injury.” At closing,

both the prosecution and defense counsel argued whether the jury should take the

pregnancy as evidence defendant had inflicted great bodily injury. In the end, the jury

found “in the commission of the offense charged under counts 1 through 5 of the

information, [defendant] did personally inflict great bodily injury upon a person within

the meaning of Penal Code section 667.61, subdivision (d), subsection (6).”

       The trial court then sentenced defendant consistent with the evidence at the

preliminary hearing and trial. At some point, the trial court became aware of the mistake

in the pleading. After trial, it held an ex parte hearing and found the “[i]nformation

incorrectly reflects the leading charge for enhancement,” ordered the great bodily injury

allegation in count 8 stricken, and added the allegation to count 1 “though applying to

any one of Counts 001-005. Not Count 008.” Based on the jury’s finding defendant



                                             12
inflicted great bodily injury by impregnating Jane during one of the incidents of rape, the

trial court sentenced defendant on count 1 under section 667.61, subdivision (a).

       Under these circumstances, Mancebo does not require reversal. In Mancebo, the

Supreme Court reversed the defendant’s sentence because the defendant was never

informed the multiple victim circumstance could be substituted as a basis for imposing a

One Strike sentence for the gun-use allegation actually alleged as the factual basis for the

alternative sentence. (Mancebo, supra, 27 Cal.4th at p. 740.) The prosecution did not

allege the defendant could face a One Strike sentence based on his having multiple

victims. There was no indication the prosecution indicated it would do so at a

preliminary hearing. Nor did the prosecution present the multiple victim circumstance to

the jury or engage in argument over its role as a reason for imposing a harsher sentence.

Instead, the trial court “struck [the gun-use circumstances] from the calculation of the

One Strike indeterminate terms so that gun use could instead be used to impose lesser

determinate terms under another enhancement statute (§ 12022.5 [, subdivision] (a)), with

the unpled multiple victim circumstances purportedly substituted into the One Strike

calculation for the first time at sentencing.” (Mancebo, supra, at p. 751.) Thus, the

defendant faced a higher sentence after trial than he realized could apply based on the

pleadings and the evidence presented against him during trial.

       Here, defendant was not similarly deprived of notice. On the contrary, the

prosecution put defendant on notice of both the substantive claims and the sentence he

faced from the beginning of the case. As we have discussed, the prosecution laid out its

case against defendant, including the case for sentencing him under the One Strike law, at

                                             13
the preliminary hearing. It presented testimony that defendant had raped his daughter and

impregnated her, evidence sufficient to support an information alleging five counts of

rape and the great bodily injury circumstance warranting an alternative sentence.2

Meanwhile, the prosecution did not present testimony at the preliminary hearing that

defendant had inflicted great bodily harm—or indeed any physical injury—when he

earlier committed acts of lewd touching. The prosecution pursued the same theory

throughout trial and used the same facts in its closing argument to the jury and to argue

for instructing the jury it must decide whether impregnating Jane constituted the infliction

of great bodily injury. And after the jury found defendant inflicted great bodily injury,

the trial court imposed a One Strike sentence based on the same understanding of the

case.

        Only the information was inconsistent with the prosecution’s theory of defendant’s

guilt and sentencing exposure. That deficiency did not violate defendant’s statutory or

due process rights. Due process requires “an accused be advised of the charges against

him so that he has a reasonable opportunity to prepare and present his defense and not be

taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d

294, 317 (Jones).) However, “in modern criminal prosecutions initiated by informations,


        2 At oral argument, Mariscal contended he was not put on notice at the
preliminary hearing that the great bodily injury allegation related to one of the rape
counts because the prosecution did not present testimony that the victim’s labor was
painful until trial. However, because impregnating a victim during a rape may constitute
the infliction of great bodily injury (People v. Sargent, supra, 86 Cal.App.3d at pp. 151-
152), the testimony that Mariscal impregnated the victim was on its own sufficient to put
him on notice.

                                            14
the transcript of the preliminary hearing . . . affords defendant practical notice of the

criminal acts against which he must defend.” (Ibid.) Here, and unlike in Mancebo, the

transcript of the preliminary hearing informed defendant of exactly the charges and

sentencing allegations against him. Thus, the prosecution provided defendant, from the

beginning of the case, with the fair notice “critical to the defendant’s ability to contest the

factual bases and truth of the qualifying circumstances invoked by the prosecution in

support of One Strike sentencing.” (Mancebo, supra, 27 Cal.4th at p. 752.) There was

no statutory violation for the same reason; the evidence at a preliminary hearing can stand

in and provide statutory notice where, as here, the prosecution mistakenly places the One

Strike circumstance allegation in the wrong count.

       Defendant contends under Mancebo, supra, 27 Cal.4th 735 and Perez, supra, 240

Cal.App.4th 1218, what matters is notice by pleading, not actual notice. He points out

the Supreme Court in Mancebo and the Second District Court of Appeal in Perez

overturned One Strike sentences because the trial courts based the sentences on facts not

pled as One Strike circumstances, despite the fact the pleadings set out facts that could

have supported finding such circumstances. The problem with the treatment of the

defendants in those cases was they did not have notice of the severity of the sentences

they faced before trial. As the Supreme Court pointed out, “[u]nder the People’s

position, there would be less incentive to plea bargain since the defendant would not be

informed in advance of trial or sentencing that the prosecution intends to rely on the fact

of convictions of offenses against multiple victims in support of a harsher One Strike

term.” (Mancebo, supra, at p. 752.)

                                              15
       In Perez, the defendant abducted a woman at knifepoint and sexually assaulted

her. (Perez, supra, 240 Cal.App.4th at p. 1221.) The People charged the defendant with

one count each of kidnapping, sexual penetration by a foreign object, attempted forcible

rape, second degree robbery, assault with intent to commit a felony, and forcible oral

copulation. (Id. at p. 1222.) The People alleged the defendant was eligible for an

alternative sentence under the One Strike law as to the kidnapping and sexual penetration

by a foreign object counts because he had kidnapped the victim using a dangerous or

deadly weapon. (Ibid.) “The People made no such allegations with respect to the

forcible oral copulation count,” but the trial court instructed the jury to determine whether

the allegations were true as to that count as well. (Ibid.) The jury found the allegations

true, and the trial court imposed consecutive 25-year-to-life sentences on the forcible oral

copulation and sexual penetration counts under the One Strike law. The defendant did

not receive a third 25-year-to-life sentence because the trial court stayed the sentence on

the kidnapping count under section 654. (Perez, supra, at p. 1222.) Because the

prosecution did not allege the One Strike circumstances as to the forcible oral copulation

count, the court reversed the sentence. (Id. at p. 1227.)

       In reaching this conclusion the Second Appellate District, Division Two

articulated the following bright-line rule: “The People must allege the specific One

Strike law circumstances it wishes to invoke as to each count it seeks to subject to the

One Strike law’s heightened penalties.” (Perez, supra, 240 Cal.App.4th at p. 1227, italics

added.) Defendant argues the pleading in this case does not satisfy that test because the

information unambiguously alleged the One Strike circumstance as to one of the

                                             16
molestation counts, not one of the rape counts. We agree with defendant’s

characterization of the information, but conclude the rule adopted in Perez is overbroad.

The Perez court justified its articulation of the rule on the premise that “a defendant can

only plead guilty to a One Strike law crime if the circumstances necessary to trigger that

crime are pled—that is how the defendant knows the maximum sentence he or she faces

and what he or she must admit during the plea.” (Ibid.) The premise is false. Where, as

here, the prosecution erroneously pleads a circumstance under the wrong count, but

corrects the error at the preliminary hearing, the prosecution provides the defendant full

notice of the qualifying circumstances and his sentencing exposure by delivering a

transcript of the preliminary hearing. (See People v. Jennings (1991) 53 Cal.3d 334, 358

[“Under modern pleading procedures, notice of the particular circumstances of an alleged

crime is provided by the evidence presented to the committing magistrate at the

preliminary examination, not by a factually detailed information”]; People v. Graff

(2009) 170 Cal.App.4th 345, 367 [“‘[A] preliminary hearing transcript affording notice of

the time, place and circumstances of charged offenses “‘is the touchstone of due process

notice to a defendant’”’].) Such notice is sufficient for both due process and statutory

purposes.

       We do not mean to suggest we disagree with the result in Perez. We believe the

rule as stated in the decision is too broad, but agree with the holding that reversal of the

One Strike sentence was required under Mancebo. The Perez defendant understood he

faced One Strike sentences on two counts, but the trial court directed the jury to

determine whether those circumstances applied to three counts, thereby increasing his

                                              17
sentencing exposure after trial had commenced. Here, defendant knew the sentence he

faced and knew the reason why he faced that sentence early enough to enter informed

plea negotiations and to knowingly plead guilty in open court, as well as to prepare a

defense for trial. Defendant therefore had adequate and timely notice of all charges and

qualifying circumstances alleged against him as well as his maximum exposure at

sentencing.

       B. Applying the Amended Version of the One Strike Alternative Sentence

       Defendant contends the trial court erred by imposing an indeterminate sentence of

25 years to life because the version of section 667.61, subdivisions (b) and (e)(3) in effect

between June 2009 and June 2010 mandated an indeterminate sentence of 15 years to

life. The People concede the error and we agree.

       “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.” (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.) The prosecution is

responsible “to prove to the jury that the charged offenses occurred on or after the

effective date of the statute providing for 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.” (People v.

Hiscox (2006) 136 Cal.App.4th 253, 256.)

       The trial court imposed a sentence under an amendment to section 667.61 that

took effect September 9, 2010. The amendment moved the great bodily injury

                                              18
circumstance from section 667.61, subdivision (e) to subdivision (d), thereby elevating

the sentence from 15 years to life to 25 years to life. The information alleged and the

evidence tended to prove defendant committed the rape offenses between June 2009 and

June 2010. Because the length of the sentence exceeded the length of sentence mandated

by the statute at the time defendant committed the offenses, the trial court erred. The

sentence must be reduced to 15 years to life.

                                            III

                                     DISPOSITION

       The sentence on count 1 is reduced from 25 years to life to 15 years to life. The

matter is remanded to the trial court with directions to prepare an amended abstract of

judgment reflecting this change and forward a copy of the amended abstract to the

Department of Corrections and Rehabilitation. In all other respects, we affirm the

judgment.

       CERTIFIED FOR PUBLICATION



                                                               RAMIREZ
                                                                                          P. J.

We concur:


CODRINGTON
                          J.


SLOUGH
                          J.


                                            19
