People v. Rios CA5

Filed 7/30/24 P. v. Rios CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F080424 Plaintiff and Respondent, (Super. Ct. No. BF172063A) v.

ABEL JOSE RIOS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge. Candace Hale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Peña, J. and Meehan, J.

INTRODUCTION Defendant Abel Jose Rios stands convicted by jury of five counts of sex offenses against two children under the age of 10 years. Relevant to this appeal, defendant was charged under Penal Code section 288, subdivision (a)1 on counts 3 and 5 for lewd or lascivious acts against a child under the age of 14 years. These counts also contained special allegations that the underlying crime was a qualifying offense under section 667.61, subdivision (c) of the “One Strike” law (§ 667.61 et seq.), and alleged defendant had committed the qualifying offenses against more than one victim within the meaning of section 667.61, subdivision (e)(4).2 The jury convicted defendant on counts 3 and 5, and found true the additional One Strike allegations. At sentencing, the trial court imposed terms of 25 years to life on both counts pursuant to section 667.61(j)(2), a punishment provision under the One Strike law. Section 667.61(j)(2) applies when the qualifying offense under section 667.61(c) is committed against more than one victim within the meaning of section 667.61(e)(4), and the victim is under the age of 14 years. Defendant was sentenced to an aggregate term of 105 years to life.3 On appeal, defendant argued he did not have sufficient notice the harsher indeterminate term under section 667.61(j)(2) would apply to him on counts 3 and 5 because that specific subdivision was not pleaded among the One Strike allegations.

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 Section 288, subdivision (a), section 667.61, subdivision (a), section 667.61, subdivision (b), section 667.61, subdivision (c), section 667.61, subdivision (d), section 667.61, subdivision (e) and (e)(4), section 667.61, subdivision (j), section 667.61, subdivision (j)(1) and (j)(2), section 1170.1, subdivision (e) and section 12022.5, subdivision (a), are referred to in this opinion as section 288(a), section 667.61(a), section 667.61(b), section 667.61(c), section 67.61(d), section 667.61(e), section 667.61(e)(4), section 667.61(j), section 667.61(j)(1), section 667.61(j)(2), section 1170.1(e) and section 12022.5(a). 3 The trial court imposed three consecutive terms of 25 years to life (§ 288.7, subd. (a), count 1; § 667.61(j)(2), counts 3 and 5) and two consecutive terms of 15 years to life for counts 2 and 4 (§ 288.7, subd. (b)).