People v. Dominguez CA4/3

Filed 6/13/14 P. v. Dominguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049841

v. (Super. Ct. No. SWF027470)

JAVIER EFREN DOMINGUEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Riverside County, Kelly L. Hansen, Judge. Affirmed in part, reversed in part, and remanded. Torres & Torres, Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.

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Over an 18-year span, defendant Javier Efren Dominguez engaged in sexual misconduct with nine nieces and step nieces. A jury convicted defendant of 24 counts of lewd conduct upon a child under the age of 14 (Pen. Code, § 288, subd. (a); all further statutory references are to this code) and one count of possession of child pornography (§ 311.11, subd. (a)). The jury also found defendant committed the crimes against more than one victim (former § 667.61, subd. (e)(5), now § 667.61, subd. (e)(4)). The court sentenced defendant to consecutive 15-years-to-life terms for each of the 24 lewd conduct counts and a concurrent one year and four months term on the child pornography count. Defendant contends the court erred in failing to give sua sponte CALCRIM No. 1193, by instructing the jury with CALCRIM No. 226, and in failing to instruct the jury that the acts supporting three of the lewd conduct counts needed to have occurred after November 30, 1994. He also contends his sentence on nine of the lewd conduct counts (counts 13 through 21) must be reversed because the acts occurred before the enactment of section 667.61 and that the statute of limitations had run on these counts. Finally, he claims the court failed to recognize he was eligible for probation and misunderstood its discretion under section 667.61 with respect to consecutive and concurrent sentencing. The Attorney General concedes and we agree that the sentences imposed on counts 13 through 21 violate the ex post facto clause and the prosecution of these counts was barred by the statute of limitations. We also conclude the trial court expressed a misunderstanding of its discretion with respect to defendant’s eligibility for probation. We reject the remainder of defendant’s contentions and remand the case to the trial court for resentencing. To the extent the facts are relevant to our discussion of defendant’s appellate contentions, they will be noted there.