Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC067528A
Margulies, J.
Isaias Talavera Vargas was convicted by a jury of continuous sexual abuse against one victim, and committing lewd and lascivious acts against another. Applying the multiple victims clause of California’s “One Strike” law (Pen. Code, § 667.61, former subd. (e)(5)), defendant was sentenced to an indeterminate life term in state prison. He challenges his convictions and sentencing contending, among other things, his indeterminate life term violated the ex post facto clauses of the state and federal Constitutions. We affirm defendant’s convictions, but find merit in his ex post facto claim, and will remand the case for resentencing in accordance with the law in effect prior to November 8, 2006.
All further statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged by information with 17 counts: committing lewd and lascivious acts against C., who was under 14 years old (§ 288, subd. (a); counts 1 to 10); continuous sexual abuse of C. (§ 288.5, subd. (a); count 11); committing lewd and lascivious acts against V., who was under 14 years old (§ 288, subd. (a); counts 12 to 16); and continuous sexual abuse of V. (§ 288.5, subd. (a); count 17). The information further alleged defendant committed an offense specified in section 667.61, subdivision (c), against more than one victim in violation of section 667.61, former subdivision (e)(5). Defendant pled not guilty to all counts, and denied the allegation.
A jury trial began on January 29, 2009.
A. Trial Evidence
In 2006, defendant lived with his brother and sister-in-law, and their two daughters, C., born in 1996, and V., born in 1993. On February 2, 2006, C. had back surgery, and had to stay home in a brace for three months. C. was able to walk with the brace on, but only slowly. She could not get up or get around easily. She would wear the brace all day unless she was lying down in her bed. When C. went to a doctor’s appointment or elsewhere outside she needed to be in a wheelchair. C.’s mother stayed home with C. for a month after she returned from the hospital. After that, defendant would regularly babysit C. in the afternoons. Defendant would get food for C. if she was hungry and rub her back if she was in pain. On May 12, 2006, C. had a second back surgery and wore her back brace for about three to six months after that.
Once, when C. was home after the hospital and not going to school, C. came into defendant’s bedroom wearing her brace and sat down in between his legs as he was sitting, watching television. No one else was home. After they watched television together for a few minutes, defendant tried to rub C.’s stomach. He loosened one of the laces holding her brace on, and put his hand under the lace. He had not tried to rub her stomach before and she did not ask him to do that. C. told him he would need to take the whole brace off in order to reach her stomach. Defendant withdrew his hand and resecured the brace. Using the same hand, defendant reached his hand down C.’s pants over her underwear and placed it on her “private area.” C. asked him why he put his hand there and defendant responded, “ ’Cause it’s warm.” C. could not remember how long defendant kept his hand on top of her “private part, ” but he did not remove it until he heard the garage door open, which she knew meant her father was home from work.
C. recalled a second molestation incident that occurred just after she had returned home with her family from a grocery-shopping trip to Costco. She was not sure how much time passed between the first and second incidents, and could not recall if she was still wearing her brace at the time. She was lying on the living room couch next to defendant and he was teaching her how to draw a butterfly. C.’s sister, V., left the room when their mother called her to help get the groceries, leaving C. momentarily alone with defendant. As soon as they were alone, defendant reached over, put his hand inside her jeans and touched her “private area” just as he had the previous time. His hand stayed on top of her underwear, but he reached down to touch the area between her legs. C. grabbed defendant’s arm and tried “[r]eally hard” to pull defendant’s hand out, but she was not strong enough to make him move it. The incident ended when V. returned to the living room and defendant removed his hand “really fast.”
C. remembered a third incident when the family was getting ready to leave for her cousin’s quinceaera. C. was wearing a skirt and sitting on the couch with defendant. Defendant touched her between her legs after C.’s sister left the room to tell their parents to hurry up. This time, defendant kept his hand over her clothes when he touched her. C. could not remember if she was still wearing her brace at the time.
A quinceaera is a party to celebrate a girl turning 15 years old.
Although C. could not recall the details of other incidents, she testified defendant touched her at least 10 times. Each time he would touch her private parts between her legs. She could not remember if he ever touched her underneath her panties, but she acknowledged telling police, at a time when her memory was fresher, that he had touched her under her underwear once or twice.
C. testified defendant’s behavior toward her changed in other ways after the touching started. He became mean and rude toward C. and she felt she was “being watched” by him. C.’s friend, Andrea, who spent a lot of time at the house beginning in December 2006 when she first met the girls, testified defendant always seemed to be going out of his way to keep his eye on them. Andrea and the girls also testified about two incidents that occurred between December 2006 and the date defendant moved out in which defendant went into the girls’ room when they were elsewhere in the house and deliberately created a mess. In one case, he poured soda on V.’s bed and in another, he pulled the girls’ underwear out of a dresser drawer and dumped it on the floor.
Defendant moved out of the residence in January 2007.
V. testified she had also been molested by defendant. She told a police detective who interviewed her it happened five times, but she could only remember the details of two incidents. The earliest incident she remembered occurred when she was playing a tickling game with defendant. At one point when she had fallen down, he reached over, pulled the waistband of the sweatpants she was wearing out with one hand, and touched her vaginal area under her underwear with his other hand. He kept his hand there until she pushed him away and left the room. V. described a second incident that took place in November 2006, while the family was getting ready for a trip to visit Tijuana. On this occasion, defendant again stuck his hand under V.’s clothes and touched her vagina, keeping his hand there even though V. bit him and tried to push and kick him away.
Defendant testified at trial and denied touching C. or V. improperly at any time.
B. Verdicts, Sentencing, and Appeal
The jury found defendant guilty of continuous sexual abuse of C. (count 11) and five counts of lewd and lascivious acts committed against V. (counts 12 through 16). The jury acquitted defendant of committing lewd and lascivious acts against C. (counts 1 through 10) and of continuous sexual abuse of V. (count 17). The jury found true that defendant had committed the offenses charged in the information against multiple victims within the meaning of section 667.61, former subdivision (e)(5).
The jury was instructed in accordance with CALCRIM No. 3516 that counts 11 and 17 were being charged, respectively, as alternative offenses to the lewd and lascivious act counts charged as to each of the two alleged victims. Since the jurors found defendant guilty of continuous sexual abuse as to C. (count 11), the instructions thus required the jury to acquit him of counts 1 to 10. Since the jurors found him guilty of one or more lewd and lascivious acts as to V., they were required to acquit him of count 17.
The trial court sentenced defendant to the midterm of 12 years on count 11. On count 12, the court imposed a consecutive term of 15 years to life under section 667.61. The court imposed a consecutive term of two years (one-third the midterm of six years) on count 13, and concurrent midterm sentences of six years on counts 14 through 16. The total term imposed was 29 years to life. This timely appeal followed.
II. DISCUSSION
Defendant contends the judgment must be reversed because (1) no substantial evidence supports his conviction for continuous sexual abuse, (2) the trial court erred in instructing the jury the prosecution was not required to prove motive beyond a reasonable doubt, (3) his sentencing to an indeterminate life term under section 667.61 violated the ex post facto clauses of the United States and California Constitutions, and (4) the trial court’s refusal to grant a second continuance of the sentencing hearing deprived him of the effective assistance of counsel at sentencing. We agree with defendant’s ex post facto claim, and will affirm his convictions, vacate the sentences imposed, and remand the case for resentencing under the law in effect prior to November 8, 2006.
A. Continuous Sexual Abuse Conviction
Section 288.5, subdivision (a) defines the crime of continuous sexual abuse of a child in relevant part as follows: “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense... or three or more acts of lewd or lascivious conduct... with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child....” (Italics added.) Consistent with the requirements of section 288.5, the trial court instructed the jury with CALCRIM No. 1120, which includes as an element of the crime the jury must find “[t]hree or more months passed between the first and last acts.”
Defendant concedes the jury heard substantial evidence he committed three or more acts of sexual misconduct with C. during the time he lived in her house. He denies, however, there was substantial evidence to show his alleged acts were committed over a period of time not less than three months in duration.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶]... The court must consider the evidence and all logical inferences from that evidence.... [Citation.] But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139, fn. omitted.) In conducting a substantial evidence review, we “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
In our view, the jury could reasonably infer the first molestation incident C. described occurred on a weekday falling sometime between the date of her first surgery on February 2, 2006, and the beginning of the summer of 2006. C. testified the incident occurred when she was home from the hospital, still wearing her brace, and not going to school. Because no one but defendant and C. were home, and the incident ended when C. heard her father returning home from work, the jury could also infer (1) the incident occurred on a weekday; and (2) took place before summer, when V. would have been at home during the day.
According to the testimony, C. wore a back brace for six to nine months following the initial surgery in February. That meant the brace came off sometime between August and November 2006. Based on the circumstances surrounding the second and third molestation incidents, as testified to by C., the jury could reasonably infer at least one if not both of these incidents occurred after C. was no longer wearing the brace. First, the evidence established C. was able to be more active at the time of these incidents than she was when she was wearing a brace. The second incident occurred after she had just returned with her family from a grocery-shopping trip to Costco. In light of the trial testimony that C. could only walk slowly with her brace on, could not get around the house easily, and needed to be in a wheelchair when she left the house, the jury could infer her parents would not have taken her along on a routine grocery-shopping trip until after she no longer needed her brace. The third incident occurred when the family was about to leave for a cousin’s quinceaera. For similar reasons, the jury could reasonably infer from this circumstance that this incident also occurred after C. no longer needed her brace. Either reasonable inference would have supported the jury’s finding that defendant’s offenses against C. occurred over at least a three-month period.
Other evidence in the record also supports that finding. C. could not remember whether or not she was wearing a brace at the time of the second and third incidents, but had a clear memory she was wearing a brace during the first incident. C.’s brace was shown to the jury and introduced in evidence. Based on how confining it would be to wear the brace, the jury could reasonably infer C. would also have had a memory of the brace during the later incidents had she been wearing it, Further, the second and third incidents occurred in the living room of the house when C.’s entire family was at home. It seems improbable defendant would have taken that risk of exposure if he still had access to C. during weekday afternoons when no one else would be around. Moreover, C. testified defendant molested her at least 10 times, and possibly many more times than that. The jury could reasonably infer it was improbable all of these molestations clustered within three months of the first molestation in the spring of 2006 and then abruptly stopped, even though defendant continued to live in the same house and have daily access to C. There was no testimony by C. that the molestations ended at any point while defendant lived in her house, and no testimony establishing changed circumstances that might have caused defendant’s conduct toward C. to suddenly change during the summer of 2006. To the contrary, the evidence showed defendant was so driven to commit acts of molestation against his nieces that he forcefully touched their vaginas even while their parents were in the next room. The jury could reasonably infer from this level of risk-taking conduct defendant would have continued the molestations as long as he had access to his victims.
Two further circumstances support an inference defendant’s molestations of C. continued in the fall of 2006, and afterward. V.’s testimony and contemporaneous diary showed defendant was molesting V. as late as November 2006, when the family was preparing for a trip to Tijuana. In the absence of any evidence to the contrary, the jury could reasonably infer defendant was also still molesting C. in that time period. Further, C. testified once the touching started she felt defendant began watching her, and exhibiting hostility toward her. C.’s friend, Andrea, who did not even meet C. until December 2006, testified defendant seemed to be keeping his eye on C. and V. when she visited them. There was also testimony from Andrea and both victims as to hostile acts defendant committed toward them in December 2006 or January 2007 before he moved out. From the continuation of this conduct, the jury could infer defendant was still molesting C. in this time frame.
Based on the totality of the evidence presented at trial, the jury could reasonably infer defendant’s acts of molestation against C. took place over a period of at least three months’ duration.
B. Motive Instruction
The trial court instructed the jury with CALCRIM No. 370 as follows: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict, you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
Defendant maintains CALCRIM No. 370 should not have been given because he admitted touching the girls when massaging C.’s back or when tickling or roughhousing with both girls. According to defendant, “the only genuinely disputed issue for jurors to decide was why [defendant] touched the girls: did he simply touch them innocently... during the course of play... or was he sexually motivated to touch the girls... ?” (Italics added.) He points to the fact that violations of sections 288, subdivision (a) and 288.5, subdivision (a), may both be predicated on “ ‘any touching’ ” of a child under the age of 14, even if the touching is otherwise innocuous, when the touching is accompanied by “ ‘the intent of arousing, appealing to, or gratifying the lust or passions, or sexual desires’ ” of the defendant or the child. (People v. Martinez (1995) 11 Cal.4th 434, 452; CALCRIM No. 1110.) Defendant reasons his motive must be considered an element of the prosecution’s case as to all the charged counts and, therefore, the challenged instruction impermissibly lowered the prosecution’s burden of proof.
Defendant’s continuous sexual abuse conviction could have been based on a jury finding of three acts of “substantial sexual conduct, ” as defined in section 1203.066, subdivision (b) to include, as relevant here, masturbation of the victim. The intent required for this offense is a general criminal intent, the intent to do the prohibited act. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1293.)
Jury instructions violate the due process clause of the Fourteenth Amendment if there is a “reasonable likelihood” the jury understood the instructions to allow conviction based on proof less than beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 6.) We find no such likelihood here. The jury was specifically instructed that to find defendant guilty of a lewd and lascivious act under section 288, it must find beyond a reasonable doubt the defendant touched the victim “with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or the child.” (Italics added.) In connection with section 288.5, the jury was instructed that to find defendant guilty based on lewd and lascivious conduct it must find beyond a reasonable doubt he willfully touched the child “with the intent to sexually arouse the perpetrator or the child.” (Italics added.) Neither instruction purported to require proof of defendant’s motive.
The distinction between intent and motive was discussed in People v. Hillhouse (2002) 27 Cal.4th 469 (Hillhouse): “ ‘Motive, intent, and malice... are separate and disparate mental states. The words are not synonyms. Their separate definitions were accurate and appropriate.’ [Citation.] Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (Id. at p. 504.) The jury instructions in Hillhouse stated motive was not an element of defendant’s robbery offense, but also stated that the force or intimidation required by the robbery “ ‘must be motivated by the intent to steal....’ ” (Ibid., italics added by Hillhouse,) The Supreme Court found no reasonable likelihood of jury confusion between intent and motive based on the latter instruction: “This language did not transform the requirement of an intent to steal into a motive; it merely meant that the force had to be accompanied by the intent to steal. No reasonable juror would consider the use of the word ‘motivated’ in this context as negating the other instructions regarding the necessary mental states.” (Ibid.) The Hillhouse court distinguished the case of People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer), also relied upon by defendant here, in which the court found the use of the parallel CALJIC instruction on motive prejudicial because motive was also an express element of the defendant’s sexual offense, (See § 647.6; CALJIC No. 16.440 [to be criminal, conduct toward victim must be “motivated by an unnatural or abnormal sexual interest”].) The court found Maurer inapplicable because “although... intent or purpose to steal were elements of the offense[], motive was not.” (Hillhouse, at p. 504.) As in Hillhouse, motive was not an element of the offenses charged in this case, and no reasonable juror would have considered the use of the word “motive” in CALCRIM No. 370 as negating the instructions regarding the mental state elements required to convict defendant.
The Fifth District Court of Appeal in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes) specifically rejected the argument defendant is making here. The defendant in Fuentes contended the use of CALCRIM No. 370 conflicted with the instructions given for the offense of criminal street gang participation (§ 186.22, subd. (a)), which required an intent to further gang activity. (Fuentes, at p. 1139.) The court stated: “An intent to further criminal gang activity is no more a ‘motive’ in legal terms than is any other specific intent.... Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. Fuentes claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position.” (Id. at pp. 1139–1140.) Distinguishing Maurer, the court stated there would be no problematic conflict between CALCRIM No. 370 and a hypothetical instruction specifying an intent, as opposed to a motive, “ ‘to gratify an unnatural or abnormal sexual interest in children’ ” as the mental state element of a sexual offense. (Fuentes, at p. 1140.) We agree with Fuentes, and find it indistinguishable from the case before us.
We find no error in the giving of CALCRIM No. 370. However, even assuming for the sake of analysis that the instruction conflicted with the mental state instructions given to the jury, we would find the error harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 503.) The victims in this case testified defendant placed his hand on their vaginas and kept it there even as they tried to pull his hand away, and that he repeated this conduct multiple times with each girl. During his police interview, which was introduced in evidence, defendant grudgingly admitted it was possible he had inadvertently touched C.’s vagina once while massaging her stomach and V.’s once while roughhousing, despite a full court press by police to induce him to admit more such “accidental” touching incidents. Defendant did not repeat these admissions when he testified at trial. There, his predominant defense was to deny the incidents described by the victims ever occurred. In closing argument, defense counsel made no attempt to argue defendant lacked criminal intent even if the touchings had happened as the girls described them. Given the evidence and arguments presented at trial, it is inconceivable that any reasonable jury, if it believed the girls were telling the truth, would have spent much time deliberating over whether their testimony established criminal intent. In our view, the use of CALCRIM No. 370 in this case-if assumed to have been erroneous-was harmless beyond a reasonable doubt.
C. Ex Post Facto Violation in Sentencing
Defendant contends his sentence of 15 years to life under section 667.61 violates the ex post facto clauses of the United States and California Constitutions because it imposes a greater punishment for his offenses than was authorized by law when the offenses were committed. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; People v. Alford (2007) 42 Cal.4th 749, 755.) In light of People v. Hiscox (2006) 136 Cal.App.4th 253 (Hiscox), we agree.
There is no question defendant’s indeterminate sentence of 15 years to life under California’s One Strike law, section 667.61, greatly exceeded the maximum determinate sentence that could have been imposed on him in the absence of the statute. Thus, the ex post facto clauses have been held to preclude sentencing under section 667.61 for offenses committed before the original statute’s effective date of November 30, 1994. (See People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.) Section 667.61 mandates a term of 15 years to life when the defendant is convicted “in the present case or cases” of the qualifying sexual crimes listed in subdivision (c) of the statute against more than one victim. (§ 667.61, subds. (b), former (e)(5).) Continuous sexual abuse was the only qualifying offense defendant was convicted of committing against C. In the absence of that conviction, the One Strike law would be inapplicable to defendant’s sentencing. The offense of continuing sexual abuse of a child under section 288.5 was not listed as a triggering offense under section 667.61, subdivision (c) when the statute was first enacted. (Historical and Statutory Notes, 49 West’s Ann. Pen. Code (2010 ed.) foll. § 667.61, pp. 399–400.) That offense was first added to section 667.61, subdivision (c) on November 8, 2006, after passage of Proposition 83. (Historical and Statutory Notes, 49 West’s Ann. Pen. Code, supra, foll. § 667.61, at p. 401; Prop. 83, § 12, as approved by voters, Gen. Elec., (Nov. 7, 2006).)
In applying the ex post facto clause, “[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date,” (Weaver v. Graham (1981) 450 U.S. 24, 31, italics added.) Defendant’s ex post facto challenge to the application of the One Strike law thus requires us to determine whether the continuous sexual abuse offense of which he was convicted may be deemed complete before November 8, 2006. If the offense was completed by that date, section 667.61 cannot constitutionally be applied to defendant.
In People v. Palacios (1997) 56 Cal.App.4th 252 (Palacios), the Court of Appeal explained when the crime of continuous sexual abuse is deemed complete for purposes of the ex post fact prohibition: “Section 288.5 punishes a continuous course of conduct, not each of its three or more constituent acts. [Citations.] A continuous course of conduct offense cannot logically be ‘completed’ until the last requisite act is performed. Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition. [Citations.]” (Id. at p. 257, italics added.) Because the defendant’s no contest plea in Palacios constituted an admission that his continuous sexual abuse offense continued after the punishment statute in issue in that case became effective, the Court of Appeal had no difficulty determining the ex post facto prohibition did not apply. (Id. at pp. 256–258.)
Here, there was no admission by defendant and no finding by the jury that defendant’s continuous sexual abuse of C. continued after the effective date of Proposition 83, November 8, 2006. In Hiscox, supra, 136 Cal.App.4th 253, the Court of Appeal upheld an ex post facto challenge to the application of section 667.61 to a defendant convicted of multiple child molestation charges where-although the evidence at trial permitted an inference that at least some of the offenses likely occurred after enactment of the statute-the jury’s verdicts and findings failed to establish that fact beyond a reasonable doubt, (Hiscox, at p. 261.) The Court stated: “Since the jury was not asked to make findings on the time frame within which the offenses were committed, the verdicts cannot be deemed sufficient to establish the date of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurring on or after November 30, 1994. (Chapman v. California (1967) 386 U.S. 18, 24.) It would be inappropriate for us to review the record and... infer that certain acts probably occurred after that date. Hiscox has a constitutional right to be sentenced under the terms of the laws in effect when he committed his offenses. For a court to hypothesize which acts the jury may have based its verdicts on, or what dates might be attached to certain acts based on ambiguous evidence, would amount to ‘judicial impingement upon the traditional role of the jury.’ (Blakely v. Washington [(2004)] 542 U.S. [296, ] 309.)” (Ibid.)
Without discussing or distinguishing Hiscox, the Attorney General argues we should reject defendant’s ex post fact claim because the jury could have inferred defendant continued to molest C. after November 8, 2006. We find Hiscox’s reasoning persuasive, and reject the Attorney General’s analysis. (See also People v. Riskin (2006) 143 Cal.App.4th 234, 244–245 [application of One Strike law precluded by ex post facto clause absent proof beyond a reasonable doubt that molestation committed after its effective date].) In the absence of an admission or jury finding resolving the issue, the question before us is not whether the jury could have reasonably inferred whether defendant’s molestations of C. continued after November 8, 2006, but whether the evidence for that fact was sufficiently strong and unequivocal that there could be no reasonable doubt about its truth. The evidence simply does not rise to that level of certainty because the prosecution here did not or could not get C. to establish the dates or time frame during which the defendant was molesting her with sufficient specificity.
We note parenthetically, although the Attorney General does not raise the issue, that defendant did not forfeit his ex post facto claim by failing to raise it at sentencing. (See Hiscox, supra, 136 Cal.App.4th at pp. 258–259.)
We will accordingly vacate defendant’s sentences and remand the matter for resentencing under the law in effect before the effective date of Proposition 83.
Because the matter must be remanded for resentencing in any event, we do not reach defendant’s claim that he was deprived of the effective assistance of counsel at his original sentencing.
III. DISPOSITION
Defendant’s convictions are affirmed. His sentences are vacated, and the matter is remanded for resentencing under the law in effect prior to November 8, 2006.
We concur: Marchiano, P.J., Banke, J.