Filed 5/11/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063305
v. (Super.Ct.No. RIF1100130)
OMAR MARISCAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed with directions.
Laura Schaefer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Karl T. Terp,
Deputy Attorneys General, for Plaintiff and Respondent.
1 Prosecutors filed an information charging defendant and appellant, Omar
Mariscal, with five counts of raping his daughter (Pen. Code, § 261, subd. (a)(2), counts
1-5) when she was 15 years old and three counts of committing lewd and lascivious
conduct against her when she was 10 years old (§ 288, subd. (a),1 counts 6-8). The last
paragraph of the information, which appears under the heading and substantive offense
allegation for the count 8 lewd conduct charge, alleged “in the commission of the above
offense, the said defendant, OMAR MARISCAL, personally inflicted great bodily injury
upon a person . . . within the meaning of Penal Code section 667.61, subdivision (d)(6).”
At the preliminary hearing and at trial, the prosecution presented testimony that
the victim had become pregnant and given birth to a child as a result of one of the rape
offenses. At trial, the jury heard evidence the victim suffered extreme pain while giving
birth. At the close of evidence, the trial court instructed the jury that if it found defendant
guilty of one of the rape charges, it must decide whether it is also true defendant
personally inflicted great bodily injury on the victim in committing the crime. The court
instructed the jury that committing rape does not by itself constitute inflicting great
bodily injury and great bodily injury “may or may not be established by pregnancy.” The
jury found defendant guilty on all counts and found he did personally inflict great bodily
injury on the victim in committing a rape offense. On November 6, 2014, after the
verdict but before sentencing, the trial court held an ex parte hearing and found the
“[i]nformation incorrectly reflects the leading charge for [the] enhancement,” ordered the
1 Unlabeled statutory citations refer to the Penal Code.
2 great bodily injury allegation in count 8 stricken, and added the allegation to the rape
counts.
The trial court sentenced defendant to a term of 25 years to life in state prison on
count 1 under the version of the “One Strike” law (§ 667.61) that took effect on
September 9, 2010, after the offenses occurred. The court also imposed consecutive
upper term sentences of eight years for the other four rape counts (counts 2-5) and
consecutive two-year terms (one-third the midterm) for each of the lewd conduct counts
(counts 6-8). Defendant’s total prison term is a determinate term of 38 years plus an
indeterminate term of 25 years to life.
On appeal, defendant challenges the sentence on count 1 on two grounds. First, he
contends the trial court erred by sentencing him under the One Strike law on count 1
because the information did not allege he inflicted great bodily injury in committing any
of the rape counts. Second, he contends the trial court erred by sentencing him to 25
years to life on count 1 because the version of the statute in effect at the time of the
offense called for a term of 15 years to life. The People respond sentencing defendant
under section 667.61 was proper, but concede the trial court sentenced defendant under
the wrong version of the statute.
We conclude the trial court did not err by sentencing defendant under the One
Strike law, but defendant must be resentenced on count 1 to a term of 15 years to life.
3 I
BACKGROUND
A. Factual Background
Jane Doe testified her father began molesting her when she was 10 years old. She
told the jury, “At first it just started off with him playing with me, tickling me, and then
just his hands started going in different places and I knew that it wasn’t right.” She
testified on one occasion defendant touched her breast under her bra. He kissed her on
her lips on another occasion. Another time, he touched her vagina and buttocks under her
clothing. Defendant stopped molesting Jane when she was 11 and did not resume until
she turned 15 years old.
When Jane turned 15, defendant began raping her. According to Jane, the first
time, defendant “grabbed me and he pushed me to the bed.” He told her to stay still and
“it wasn’t going to hurt” and then started “touching everything,” took her pants off, and
penetrated her vagina with his penis. Jane testified he raped her approximately 10 more
times.
In May 2010, Jane learned she was pregnant. She testified she had not had sexual
intercourse with anyone other than defendant. On October 23, 2010, Jane gave birth after
12 hours of painful labor. A criminalist with the California Department of Justice
testified, based on genetic analysis, there is a better than 99.99 percent chance defendant
is the father of Jane’s child.
4 B. Procedural Background
At a preliminary hearing on August 14, 2014, the prosecution put on evidence
defendant molested Jane on at least two occasions and raped her between five and 10
times. The prosecution did not present any evidence of great bodily harm in relation to
the lewd conduct counts. The testifying deputy said only that Jane reported defendant
had touched her breasts and her vagina, both over and under her clothing. The
prosecution also presented testimony that one of the incidents of rape resulted in Jane’s
pregnancy and the birth of a child.
On August 27, 2014, the prosecution filed an eight-count information against
defendant. In counts 1 through 5, the prosecution alleged defendant raped Jane five times
between June 2009 and June 2010, when Jane was 15 years old. In counts 6 through 8,
the prosecution alleged defendant committed three lewd and lascivious acts against Jane
between June 2004 and June 2005, when Jane was 10 years old. In the last paragraph of
the information, under the heading and substantive allegations of count 8, the prosecution
also alleged “in the commission of the above offense, the said defendant, OMAR
MARISCAL, personally inflicted great bodily injury upon a person, in violation of Penal
Code sections 12022.53, 12022.7 and 12022.8, within the meaning of Penal Code section
667.61, subdivision (d)(6).” The information does not describe the injury or how
defendant inflicted it.
The court held a jury trial beginning on October 15, 2014. The prosecution
elicited testimony from Jane that she became pregnant by defendant and she experienced
extreme pain during a 12-hour labor. She described the pain as being a 10 on a scale of
5 one to 10. The trial court instructed the jury: “If you find the defendant guilty of one of
the rape charges that led to pregnancy in 1 through 5, you must then decide whether the
People have proved the additional allegation that the defendant personally inflicted great
bodily injury on Jane during the commission of one of those crimes. Great bodily injury
means significant or substantial physical injury. It is an injury that is greater than minor
or moderate harm. Committing the crime of rape is not by itself the infliction of great
bodily injury. Great bodily injury may or may not be established by pregnancy. You are
the exclusive judges of whether the defendant personally inflicted great bodily injury.”
(See CALCRIM No. 3160.) The trial court did not instruct the jury on great bodily injury
in relation to counts 6 through 8.
The jury returned a guilty verdict as to all eight counts. It also found “in the
commission of the offense charged under counts 1 through 5 of the information,
[defendant] did personally inflict great bodily injury upon a person within the meaning of
Penal Code section 667.61, subdivision (d), subsection (6).” After the jury returned its
verdict, the trial court held an ex parte hearing, found the “[i]nformation incorrectly
reflects the leading charge for enhancement,” ordered the great bodily injury allegation in
count 8 stricken, and added the allegation to count 1 “though applying to any one of
counts 001-005. Not Count 008.”
Based on the jury’s finding defendant inflicted great bodily harm by committing
rape, the trial court sentenced defendant on count 1 under section 667.61. At the time of
the offenses, former section 667.61, subdivision (a) required an indeterminate sentence of
15 years to life. However, the trial court sentenced defendant under the version of the
6 statute in effect at the time of trial and sentencing, which requires an indeterminate
sentence of 25 years to life. Defendant appeals and challenges the validity of the One
Strike sentence and, in the alternative, asks us to reduce that sentence to 15 years to life.
II
DISCUSSION
A. Applying the One Strike Alternative Sentence to Count 1
Defendant contends the trial court erred by sentencing him on count 1 under the
One Strike law because the prosecutor did not allege in the information that he inflicted
great bodily injury on his victim in committing that offense. He contends his sentence
violates his statutory and due process rights, issues we review de novo. (Citizens for
Hatton Canyon v. Dept. of Transportation (2003) 112 Cal.App.4th 838, 843.)
“California’s One Strike law (§ 667.61) has set forth an ‘alternative and harsher
sentencing scheme for certain sex crimes.’ [Citation.]” (People v. Perez (2015) 240
Cal.App.4th 1218, 1223 (Perez).) For sex offenses falling within its reach, the statute
requires indeterminate life terms. (People v. Wutzke (2002) 28 Cal.4th 923, 926, 929.)
Among other offenses, the statute reaches the crimes of rape (§§ 261, subd. (a)(2);
667.61, subd. (c)(1)) and lewd and lascivious conduct with a child under 14 years old
(§§ 288, subd. (a); 667.61, subd. (c)(8)) under circumstances where the “defendant
personally inflicted great bodily injury on the victim . . . in the commission of the present
offense in violation of Section 12022.53, 12022.7, or 12022.8.” (§ 667.61, subd. (d)(6);
see also former § 667.61, subd. (e)(3).) The alternative sentence prescribed for such
offenses when committed under a One Strike circumstance exceeds the determinate
7 sentences prescribed for the offenses alone. (§§ 264, subd. (a), 288, subd. (a).) Prior to
September 9, 2010, section 667.61, subdivisions (b) and (e)(3) mandated an
indeterminate 15-year-to-life sentence for offenses like defendant’s. An amendment,
which took effect in September 9, 2010, increased the sentence for such offenses to 25
years to life. (§ 667.61, subds. (a) & (d)(6); Stats. 2010, ch. 219, § 16, eff. Sept. 9, 2010.)
The One Strike law specifies “[t]he penalties provided in this section shall apply
only if the existence of any circumstances specified in subdivision (d) or (e) is alleged in
the accusatory pleading pursuant to this section, and is either admitted by the defendant
in open court or found to be true by the trier of fact.” (§ 667.61, subd. (o); see also
former § 667.61, subd. (j).) In People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the
California Supreme Court explained this statutory requirement obligates the People to
allege “which qualifying circumstance or circumstances are being invoked for One Strike
sentencing.” (Id. at p. 752.) “In the Supreme Court’s view, this outcome is dictated not
only by the language of the One Strike law, but also by due process because ‘the fair
notice afforded by that pleading requirement may be critical to the defendant’s ability to
contest the factual bases and truth of the qualifying circumstances’; may be essential for
the defendant to assess his sentencing ‘exposure’; and may be necessary for the defendant
to know what he must admit to if he elects to enter a plea.’ [Citation.]” (Perez, supra,
240 Cal.App.4th at p. 1223, quoting Mancebo, supra, at pp. 746-747, 750, 752.)
In Mancebo, the prosecution brought charges against a defendant for sexually
assaulting two victims on two separate occasions. (Mancebo, supra, 27 Cal.4th at
p. 740.) The prosecution also alleged the defendant used a gun and kidnapped the victim
8 in one offense and used a gun and tied or bound the victim in committing the other
offense. (Ibid.) The prosecution alleged the occurrence of those circumstances with each
victim warranted One Strike sentences under section 667.61, subdivision (e). (Mancebo,
supra, at pp. 742-743.) The jury found the defendant guilty of the base crimes and found
the One Strike allegations true. In order to use the fact defendant used a gun in carrying
out the offenses to impose additional 10-year gun-use enhancements under section
12022.5, subdivision (a), the trial court chose not to rely on defendant’s use of a gun to
support a One Strike sentence. Instead, the trial court relied on the pleaded kidnapping
and tie-or-bind circumstances in combination with the unpled multiple-victim
circumstance to sentence defendant under the One Strike law. The Supreme Court held it
improper to use the multiple victim circumstance as a basis for the alternative sentence
because doing so violated “[t]he pleading and proof requirements of section 667.61,
subdivisions (f) and (i) [now (o)], and defendant’s due process rights.” (Mancebo, supra,
at p. 753.) The Supreme Court reached this conclusion despite the fact that the
prosecution did plead and prove there were multiple victims by convicting him of
committing crimes against two separate women. The Supreme Court explained the
allegations were insufficient “not because the defendant was never afforded notice that he
was being charged with crimes against two victims; he obviously was, and not because
defendant was never afforded notice that the One Strike law would apply to his case;
again, he was. Sentencing error occurred because defendant was given notice that gun
use would be used as one of the two pleaded and minimally required circumstances in
support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled
9 circumstance of multiple victims to support the One Strike terms, and further imposed
two 10-year section 12022.5[, subdivision] (a) enhancements that could otherwise not
have been imposed but for the purported substitution.” (Ibid.)
The question we are asked to decide is whether the pleading requirement
articulated in Mancebo requires reversal where the prosecution consistently indicated,
from the preliminary hearing through trial, that the One Strike circumstance related to
one count, but the information mistakenly pled the circumstance as to another count.
There is no question the information in this case failed to plead the One Strike
circumstance in connection with the rape offenses. The information alleged eight counts.
Each of the first seven counts appears in a single paragraph under its own heading.
Counts 1 through 5 alleged defendant “did wilfully and unlawfully, by means of force,
violence and fear of immediate and unlawful bodily injury to a person, have and
accomplish an act of sexual intercourse with and against the will of JANE DOE, a female
person not his wife.” Counts 6 and 7 alleged defendant “did wilfully, unlawfully, and
lewdly commit a lewd and lascivious act upon and with the body and certain parts and
members thereof of JANE DOE, a child under the age of fourteen years, with the intent
of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said
defendant and said child.” Under the header “Count 8,” the information repeats the
allegations of counts 6 and 7 and adds a second paragraph alleging “in the commission of
the above offense, the said defendant, OMAR MARISCAL, personally inflicted great
bodily injury upon a person . . . within the meaning of Penal Code section 667.61,
10 subdivision (d)(6).” Thus, the information on its face alleges a One Strike circumstance
as to count 8, but not as to counts 1 through 7.
It is equally clear pleading the great bodily injury circumstance as referring to one
of the lewd conduct offenses was a mistake. The prosecution presented its case at a
preliminary hearing, before filing the information. At the hearing, an investigator for the
Riverside County Sheriff’s Department testified about Jane’s allegations against
defendant. That testimony provided the factual basis for the counts in the information.
The prosecution presented no evidence any of the lewd conduct offenses involved great
bodily harm. The investigator testified only that Jane said defendant had touched her
breasts and had touched her vagina over and under her clothing. In relation to the rape
offenses, however, the investigator testified defendant started raping Jane after she turned
15, raped her more than five but fewer than 10 times, and “as a result of the rapes . . . she
became pregnant and had her son.” It has long been established impregnating a victim
during a rape may constitute the infliction of great bodily injury. (People v. Sargent
(1978) 86 Cal.App.3d 148, 151-152.) Thus, the prosecution established at the
preliminary hearing a basis for alleging defendant inflicted great bodily harm by raping
and impregnating Jane when she was 15 years old, but did not establish a basis for
alleging defendant inflicted great bodily harm when he touched her in a lewd fashion
when she was 10 years old.
The trial proceeded along the path marked out at the preliminary hearing. Jane
testified defendant had touched her breasts, vagina, and buttocks on a few occasions
when she was 10 and 11 years old. But she did not testify he touched her in a violent
11 fashion or otherwise inflicted physical injury. She also testified defendant raped her on
more than 10 occasions when she was 15. She said she had never had sexual intercourse
with anyone but defendant and she became pregnant and bore a child as a result of one of
the incidents of rape. She also testified she had endured a 12-hour labor that was
extremely painful. The trial court instructed the jury: “If you find the defendant guilty of
one of the rape charges that led to pregnancy in 1 through 5, you must then decide
whether the People have proved the additional allegation that the defendant personally
inflicted great bodily injury on Jane during the commission of one of those crimes. . . .
Great bodily injury may or may not be established by pregnancy. You are the exclusive
judges of whether the defendant personally inflicted great bodily injury.” At closing,
both the prosecution and defense counsel argued whether the jury should take the
pregnancy as evidence defendant had inflicted great bodily injury. In the end, the jury
found “in the commission of the offense charged under counts 1 through 5 of the
information, [defendant] did personally inflict great bodily injury upon a person within
the meaning of Penal Code section 667.61, subdivision (d), subsection (6).”
The trial court then sentenced defendant consistent with the evidence at the
preliminary hearing and trial. At some point, the trial court became aware of the mistake
in the pleading. After trial, it held an ex parte hearing and found the “[i]nformation
incorrectly reflects the leading charge for enhancement,” ordered the great bodily injury
allegation in count 8 stricken, and added the allegation to count 1 “though applying to
any one of Counts 001-005. Not Count 008.” Based on the jury’s finding defendant
12 inflicted great bodily injury by impregnating Jane during one of the incidents of rape, the
trial court sentenced defendant on count 1 under section 667.61, subdivision (a).
Under these circumstances, Mancebo does not require reversal. In Mancebo, the
Supreme Court reversed the defendant’s sentence because the defendant was never
informed the multiple victim circumstance could be substituted as a basis for imposing a
One Strike sentence for the gun-use allegation actually alleged as the factual basis for the
alternative sentence. (Mancebo, supra, 27 Cal.4th at p. 740.) The prosecution did not
allege the defendant could face a One Strike sentence based on his having multiple
victims. There was no indication the prosecution indicated it would do so at a
preliminary hearing. Nor did the prosecution present the multiple victim circumstance to
the jury or engage in argument over its role as a reason for imposing a harsher sentence.
Instead, the trial court “struck [the gun-use circumstances] from the calculation of the
One Strike indeterminate terms so that gun use could instead be used to impose lesser
determinate terms under another enhancement statute (§ 12022.5 [, subdivision] (a)), with
the unpled multiple victim circumstances purportedly substituted into the One Strike
calculation for the first time at sentencing.” (Mancebo, supra, at p. 751.) Thus, the
defendant faced a higher sentence after trial than he realized could apply based on the
pleadings and the evidence presented against him during trial.
Here, defendant was not similarly deprived of notice. On the contrary, the
prosecution put defendant on notice of both the substantive claims and the sentence he
faced from the beginning of the case. As we have discussed, the prosecution laid out its
case against defendant, including the case for sentencing him under the One Strike law, at
13 the preliminary hearing. It presented testimony that defendant had raped his daughter and
impregnated her, evidence sufficient to support an information alleging five counts of
rape and the great bodily injury circumstance warranting an alternative sentence.2
Meanwhile, the prosecution did not present testimony at the preliminary hearing that
defendant had inflicted great bodily harm—or indeed any physical injury—when he
earlier committed acts of lewd touching. The prosecution pursued the same theory
throughout trial and used the same facts in its closing argument to the jury and to argue
for instructing the jury it must decide whether impregnating Jane constituted the infliction
of great bodily injury. And after the jury found defendant inflicted great bodily injury,
the trial court imposed a One Strike sentence based on the same understanding of the
case.
Only the information was inconsistent with the prosecution’s theory of defendant’s
guilt and sentencing exposure. That deficiency did not violate defendant’s statutory or
due process rights. Due process requires “an accused be advised of the charges against
him so that he has a reasonable opportunity to prepare and present his defense and not be
taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d
294, 317 (Jones).) However, “in modern criminal prosecutions initiated by informations,
2 At oral argument, Mariscal contended he was not put on notice at the preliminary hearing that the great bodily injury allegation related to one of the rape counts because the prosecution did not present testimony that the victim’s labor was painful until trial. However, because impregnating a victim during a rape may constitute the infliction of great bodily injury (People v. Sargent, supra, 86 Cal.App.3d at pp. 151- 152), the testimony that Mariscal impregnated the victim was on its own sufficient to put him on notice.
14 the transcript of the preliminary hearing . . . affords defendant practical notice of the
criminal acts against which he must defend.” (Ibid.) Here, and unlike in Mancebo, the
transcript of the preliminary hearing informed defendant of exactly the charges and
sentencing allegations against him. Thus, the prosecution provided defendant, from the
beginning of the case, with the fair notice “critical to the defendant’s ability to contest the
factual bases and truth of the qualifying circumstances invoked by the prosecution in
support of One Strike sentencing.” (Mancebo, supra, 27 Cal.4th at p. 752.) There was
no statutory violation for the same reason; the evidence at a preliminary hearing can stand
in and provide statutory notice where, as here, the prosecution mistakenly places the One
Strike circumstance allegation in the wrong count.
Defendant contends under Mancebo, supra, 27 Cal.4th 735 and Perez, supra, 240
Cal.App.4th 1218, what matters is notice by pleading, not actual notice. He points out
the Supreme Court in Mancebo and the Second District Court of Appeal in Perez
overturned One Strike sentences because the trial courts based the sentences on facts not
pled as One Strike circumstances, despite the fact the pleadings set out facts that could
have supported finding such circumstances. The problem with the treatment of the
defendants in those cases was they did not have notice of the severity of the sentences
they faced before trial. As the Supreme Court pointed out, “[u]nder the People’s
position, there would be less incentive to plea bargain since the defendant would not be
informed in advance of trial or sentencing that the prosecution intends to rely on the fact
of convictions of offenses against multiple victims in support of a harsher One Strike
term.” (Mancebo, supra, at p. 752.)
15 In Perez, the defendant abducted a woman at knifepoint and sexually assaulted
her. (Perez, supra, 240 Cal.App.4th at p. 1221.) The People charged the defendant with
one count each of kidnapping, sexual penetration by a foreign object, attempted forcible
rape, second degree robbery, assault with intent to commit a felony, and forcible oral
copulation. (Id. at p. 1222.) The People alleged the defendant was eligible for an
alternative sentence under the One Strike law as to the kidnapping and sexual penetration
by a foreign object counts because he had kidnapped the victim using a dangerous or
deadly weapon. (Ibid.) “The People made no such allegations with respect to the
forcible oral copulation count,” but the trial court instructed the jury to determine whether
the allegations were true as to that count as well. (Ibid.) The jury found the allegations
true, and the trial court imposed consecutive 25-year-to-life sentences on the forcible oral
copulation and sexual penetration counts under the One Strike law. The defendant did
not receive a third 25-year-to-life sentence because the trial court stayed the sentence on
the kidnapping count under section 654. (Perez, supra, at p. 1222.) Because the
prosecution did not allege the One Strike circumstances as to the forcible oral copulation
count, the court reversed the sentence. (Id. at p. 1227.)
In reaching this conclusion the Second Appellate District, Division Two
articulated the following bright-line rule: “The People must allege the specific One
Strike law circumstances it wishes to invoke as to each count it seeks to subject to the
One Strike law’s heightened penalties.” (Perez, supra, 240 Cal.App.4th at p. 1227, italics
added.) Defendant argues the pleading in this case does not satisfy that test because the
information unambiguously alleged the One Strike circumstance as to one of the
16 molestation counts, not one of the rape counts. We agree with defendant’s
characterization of the information, but conclude the rule adopted in Perez is overbroad.
The Perez court justified its articulation of the rule on the premise that “a defendant can
only plead guilty to a One Strike law crime if the circumstances necessary to trigger that
crime are pled—that is how the defendant knows the maximum sentence he or she faces
and what he or she must admit during the plea.” (Ibid.) The premise is false. Where, as
here, the prosecution erroneously pleads a circumstance under the wrong count, but
corrects the error at the preliminary hearing, the prosecution provides the defendant full
notice of the qualifying circumstances and his sentencing exposure by delivering a
transcript of the preliminary hearing. (See People v. Jennings (1991) 53 Cal.3d 334, 358
[“Under modern pleading procedures, notice of the particular circumstances of an alleged
crime is provided by the evidence presented to the committing magistrate at the
preliminary examination, not by a factually detailed information”]; People v. Graff
(2009) 170 Cal.App.4th 345, 367 [“‘[A] preliminary hearing transcript affording notice of
the time, place and circumstances of charged offenses “‘is the touchstone of due process
notice to a defendant’”’].) Such notice is sufficient for both due process and statutory
purposes.
We do not mean to suggest we disagree with the result in Perez. We believe the
rule as stated in the decision is too broad, but agree with the holding that reversal of the
One Strike sentence was required under Mancebo. The Perez defendant understood he
faced One Strike sentences on two counts, but the trial court directed the jury to
determine whether those circumstances applied to three counts, thereby increasing his
17 sentencing exposure after trial had commenced. Here, defendant knew the sentence he
faced and knew the reason why he faced that sentence early enough to enter informed
plea negotiations and to knowingly plead guilty in open court, as well as to prepare a
defense for trial. Defendant therefore had adequate and timely notice of all charges and
qualifying circumstances alleged against him as well as his maximum exposure at
sentencing.
B. Applying the Amended Version of the One Strike Alternative Sentence
Defendant contends the trial court erred by imposing an indeterminate sentence of
25 years to life because the version of section 667.61, subdivisions (b) and (e)(3) in effect
between June 2009 and June 2010 mandated an indeterminate sentence of 15 years to
life. The People concede the error and we agree.
“The federal and state prohibitions against ex post facto laws apply to any statute
that punishes as a crime an act previously committed which was not a crime when done
or that inflicts greater punishment than the applicable law when the crime was
committed.” (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.) The prosecution is
responsible “to prove to the jury that the charged offenses occurred on or after the
effective date of the statute providing for defendant’s punishment. When the evidence at
trial does not establish that fact, the defendant is entitled to be sentenced under the
formerly applicable statutes even if he raised no objection in the trial court.” (People v.
Hiscox (2006) 136 Cal.App.4th 253, 256.)
The trial court imposed a sentence under an amendment to section 667.61 that
took effect September 9, 2010. The amendment moved the great bodily injury
18 circumstance from section 667.61, subdivision (e) to subdivision (d), thereby elevating
the sentence from 15 years to life to 25 years to life. The information alleged and the
evidence tended to prove defendant committed the rape offenses between June 2009 and
June 2010. Because the length of the sentence exceeded the length of sentence mandated
by the statute at the time defendant committed the offenses, the trial court erred. The
sentence must be reduced to 15 years to life.
III
DISPOSITION
The sentence on count 1 is reduced from 25 years to life to 15 years to life. The
matter is remanded to the trial court with directions to prepare an amended abstract of
judgment reflecting this change and forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation. In all other respects, we affirm the
judgment.
RAMIREZ P. J.
We concur:
CODRINGTON J.
SLOUGH J.