Filed 8/19/14 P. v. Quintana CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                           B249365

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA091434)
         v.

VICTOR QUINTANA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert M. Martinez, Judge. Affirmed and remanded with directions.
         Jennifer Hansen, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff
and Respondent.




                                  ________________________________
                                 INTRODUCTION
      Victor Quintana appeals from a judgment and sentence, following his
convictions for attempting to commit and committing lewd acts upon two children
and for continuous sexual abuse of the two victims. He contends his life sentences
on three counts should be vacated and the matter remanded for resentencing, as the
life sentences violated ex post facto principles. He further contends that his
sentence on one count should be reduced from four years to three years. The
People agree that the life sentences were unauthorized, but contend that the four-
year prison sentence fell within the trial court’s discretion. For the reasons stated
below, we affirm the convictions and remand for resentencing.
                            PROCEDURAL HISTORY
      In an amended information, appellant was charged in counts 1 and 2 with
committing lewd acts upon a child (victim I.D.) between March 30, 1999 and
                                                1
March 29, 2000 (Pen. Code, § 288, subd. (a)). In count 4, he was charged with
committing lewd acts upon I.D. between March 30, 2005 and March 29, 2008
(§ 288, subd. (a)). In count 3, appellant was charged with continuous sexual abuse
of I.D. between March 30, 2000 and March 29, 2005 (§ 288.5, subd. (a)). In
count 5, he was charged with continuous sexual abuse of I.D.’s sister, A.D.,
between October 3, 1998 and October 2, 2004 (§ 288.5, subd. (a)). Finally, in
        2
count 6, he was charged with attempted forcible lewd acts upon A.D. between
October 3, 2004 and October 2, 2006 (§§ 664/288, subd. (b)(1)). It also was

1
      All further statutory citations are to the Penal Code, unless otherwise stated.
2
       The original count 6 was dismissed. Based upon the jury verdict and the
court’s oral pronouncement of sentence, count 7 was apparently renumbered to
count 6. Although the abstract of judgment refers to count 6 as count 7, we will
use count 6. On remand, the court is directed to correct the abstract of judgment to
reflect the oral pronouncement of sentence.

                                           2
alleged that as to each count, appellant committed his crimes against more than one
victim, within the meaning of section 667.61, subdivisions (b) and (e).
      A jury found appellant guilty of all charges and found the special allegation
to be true. Appellant was sentenced to state prison for 15 years to life on counts 1,
2, and 4. He was sentenced to 16 years in prison on counts 3 and 5. On count 6,
appellant was sentenced to four years in prison. With the exception of count 2, all
counts were to run consecutively.
      Appellant timely noticed an appeal from the judgment of conviction.
                                                          3
                          FACTUAL BACKGROUND
      I.D. was born in March 1994. She testified that appellant began sexually
abusing her when she was in kindergarten, and last molested her when she was 11
or 12 years old.
      I.D.’s older sister, A.D., was born in October 1992. A.D. testified that
appellant sexually abused her for the first time when she was in the second grade.
When A.D. was in seventh grade, appellant tried to molest her again. He grabbed
her by the wrist and tried to push her onto a bed, but A.D. fought him off. When
she told him she would tell her mother, appellant “backed off and he left.”
                                      DISCUSSION
      Appellant does not challenge his convictions, and raises only sentencing
errors. He contends his 15 years to life sentences on counts 1, 2, and 4 violated ex
post facto principles, as (1) no offense against A.D. was a qualifying offense under
the operative sentencing law until November 8, 2006, and (2) the last wrongful act
against I.D. occurred before November 2006. He further contends that his four-



3
       We limit our discussion of the facts to those relevant to the sentencing issues
raised on appeal.

                                          3
year sentence on count 6 should be reduced to three years, as the trial judge
sentenced him to the “midterm” on that offense, and the midterm is three years.
      A.       The Life Sentences on Counts 1, 2, and 4 Violated Ex Post Facto
Principles.
      The federal and California Constitutions both prohibit ex post facto laws.
(U.S. Const., art. I, § 10; Cal. Const., art. 1, § 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 . . . inflicts
greater punishment than the applicable law when the crime was committed.”
(People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.) An ex post facto violation
resulting in an unauthorized sentence may be raised on appeal even if the
defendant failed to object below and may be corrected at any time. (People v.
Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) A challenge under the ex post facto
clause is reviewed de novo. (United States v. Mason (9th Cir. 1990) 902 F.2d
1434, 1437.)
      Appellant was sentenced to 15 years to life on counts 1, 2 and 4 under the
one strike sentencing law. (See § 667.61.) Under section 667.61, subdivision
(e)(4), a life sentence is mandated when the defendant is convicted of committing
an enumerated crime -- listed in the preceding subdivision (c) -- “against more than
one victim.” Thus, the one strike law authorizes a 15 years to life sentence if a
defendant is convicted of a qualifying offense and also has committed a qualifying
offense against another victim during the same period. (People v. Murphy (1998)
65 Cal.App.4th 35, 40.) A violation of section 288 (counts 1, 2, and 4) is a
qualifying offense. (§ 667.61, subd. (c).) Effective November 8, 2006, a violation
of section 288.5 (count 5) became a qualifying offense. (See Stats. 2006, ch. 337,
§ 33.) A violation of sections 664/288, subdivision (b)(1) (count 6) has never been


                                            4
a qualifying offense. (See Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, pp. 8570-
8572.)
      Appellant was convicted of committing lewd acts upon I.D. in violation of
section 288 (counts 1, 2, & 4) -- a qualifying offense under the one strike law.
Additionally, he was convicted of committing continuous sexual abuse of A.D. in
violation of section 288.5 (count 5) and attempting forcible lewd acts upon A.D. in
violation of sections 288/664 (count 6).
      Counts 1 and 2 were not subject to a one strike sentence, because neither
count 5 nor count 6 was a qualifying offense at the time counts 1 and 2
were alleged to have occurred (between March 30, 1999 and March 29, 2000):
count 5 -- the section 288.5 offense against A.D. -- was not a qualifying offense
until November 8, 2006, and count 6 -- the attempted violation of section 288,
subdivision (b)(1) against A.D. -- has never been a qualifying offense. Thus,
during the period when counts 1 and 2 occurred, appellant committed no qualifying
offense against another victim. Accordingly, the life sentences for counts 1 and 2
must be vacated and a determinate sentence imposed.
      Similarly, count 4 (lewd acts upon I.D.) is not subject to a one strike
sentence, as the evidence does not support a finding that a qualifying offense was
committed against another victim (A.D.) during the time the sexual abuse of I.D.
occurred. As noted, the section 288.5, subdivision (a) offense against A.D. did not
become a qualifying offense until November 8, 2006. Although it was alleged that
count 4 was committed against I.D. between March 30, 2005 and March 29, 2008,
the testimony at trial showed that the last lewd act upon I.D. was committed no




                                           5
                     4
later than June 2006. Thus, appellant’s life sentence on count 4 was unauthorized
and must be vacated, and the matter must be remanded for resentencing.
      B.     The Sentence on Count 6 Must Be Clarified by the Trial Court.
      In count 6, the jury found appellant guilty of the offense of attempted
forcible lewd act upon a child. The prosecutor requested the high term, and
defense counsel indicated that the possible terms were two-and-a-half years, four
years, and five years. The trial judge denied probation, found aggravating factors
and no mitigating factors, and sentenced appellant to the “midterm” of four years.
      At the time appellant committed his offense, the punishment applicable to
count 6 was three, six or eight years in prison. (§ 288, subd. (b)(1).) The
punishment for an attempted crime, however, was one-half the term of
imprisonment prescribed upon a conviction of the offense. (§ 664, subd. (a).)
Therefore, the midterm sentence was three years, rather than four. The People
contend that the trial court misspoke and intended to sentence appellant to the high
term of four years. As the prosecution requested the high term and a four year
sentence was within the trial court’s sentencing discretion, we will remand for the
court to clarify whether it intended to sentence appellant to the midterm of three
years or the high term of four years. (See People v. Castaneda (1999)
75 Cal.App.4th 611 [where high term justified by factors in aggravation, on


4
       I.D. testified that appellant last molested her while she attended fifth grade
for the first time, after appellant returned from a trip to New Mexico. Based on
I.D.’s birth date, that act occurred sometime between September 2004 and June
2005. A.D. testified that appellant returned from the New Mexico trip when she
was in seventh grade. Based on A.D.’s birth date, that would have been sometime
between September 2005 and June 2006, or when I.D. was in the fifth grade for the
second time. Under either scenario, appellant’s last sexual abuse of I.D. occurred
prior to November 8, 2006, the date when section 288.5 became a qualifying
offense under the one strike law.

                                          6
remand, trial court may resentence defendant to same term as original sentence by
increasing principal term to high term].)
                                  DISPOSITION
      The convictions are affirmed. The matter is remanded to the superior court
for resentencing on counts 1, 2 and 4, and for clarification on count 6.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                    MANELLA, J.


We concur:




EPSTEIN, P. J.




EDMON, J.*




________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                                            7
