People v. Gutierrez CA5

Filed 6/5/15 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068426 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. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Poochigian, J. and Detjen, J.

Pete Gutierrez, Jr., appeals to this court for the second time. In the first appeal (People v. Gutierrez (July 17, 2013, F063667) [nonpub. opn.]), we remanded the matter to the trial court for resentencing, but otherwise affirmed the judgment. This appeal is from the sentence imposed after remand. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 stating that after reviewing the record, he did not identify any arguable issues. By letter dated May 20, 2014, we invited Gutierrez to submit additional briefing. He declined our invitation by failing to respond to our letter. We affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY In 2011 a jury convicted Gutierrez of three counts of continuous sexual abuse of a child involving three different children, in violation of Penal Code section 288.5, subdivision (a).1 The jury also found true the special circumstance that Gutierrez had committed the offenses against more than one victim. (§ 667.61, former subd. (e)(5), now subd. (e)(4).) In Gutierrez’s first appeal, we concluded the trial court had erred in sentencing Gutierrez. The evidence established Gutierrez stopped molesting the first victim by 2002, and the abuse of the second and third victims ended by the summer of 2010. The trial court imposed a sentence pursuant to the law as it existed at the time of sentencing. We concluded the sentence violated the ex post facto clause of the United States and California Constitutions because the Legislature had increased the punishment for Gutierrez’s crimes between the time he committed the crime and the time of sentencing. The sentence imposed after remand complies in all respects with our first opinion. Gutierrez was sentenced to consecutive sentences of 15 years to life on the second and third counts. The law in effect at the time the crimes were committed mandated these sentences. (§ 667.61, former subds. (b), (e)(5).)