People v. Quintana CA2/4

Filed 8/19/14 P. v. Quintana CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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