P. v. Gutierrez CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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