Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C159416
Sepulveda, J.
Defendant was convicted following a court trial of sexual offenses, and the trial court sentenced him pursuant to the one strike law (Pen. Code, § 667.61) to 15 years to life for one of his convictions. Defendant argues that the sentence violates the ex post facto clauses of the United States and California Constitutions, because his offenses were committed before the effective date of the one strike law, and the Attorney General concedes that the trial court erred. We find the concession appropriate, vacate defendant’s sentence, and remand the matter for resentencing under the law in effect prior to the effective date of the one strike law.
All statutory references are to the Penal Code.
I.
Factual and Procedural
Background
Because defendant raises only sentencing error on appeal, a summary of the underlying facts supporting defendant’s convictions is not necessary. Defendant was charged in a second amended information on March 11, 2010, with committing a lewd act in November 2005 upon a child 14 years old and at least 10 years younger than defendant (§ 288, subd. (c)(1)—count 1). The second amended information also alleged three counts of committing a lewd act upon a child (§ 288, subd. (a)), as follows: count two occurring between February 26, 1992, and February 25, 1994, and counts three and four occurring between January 1, 1988, and December 31, 1989. With respect to counts two through four, the second amended information alleged multiple victims within the meaning of the one strike law (former § 667.61, subd. (e)(5), now § 667.61, subd. (e)(4)).
Defendant waived his right to a jury trial. Following a court trial, the trial court found defendant guilty of counts one, two, and four, and found him not guilty of count three. The court also found true the multiple-victim allegations in connection with counts two and four.
At defendant’s sentencing hearing, his attorney requested that the multiple victim clause be stricken for purposes of sentencing in the same way that a strike may be stricken pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, but counsel did not otherwise argue that the one strike law was inapplicable. The trial court declined counsel’s invitation to strike the multiple victims clause, and sentenced defendant to 15 years to life on count four pursuant to the one strike law (§ 667.61, subd. (b)), plus a consecutive six-year term on count two, plus a consecutive eight-month term on count one. This timely appeal followed.
The abstract of judgment states that defendant was convicted by jury trial. We presume that this is a clerical error, and that the error will be corrected when a new abstract of judgment is prepared following resentencing, as the record makes clear that defendant was convicted following a court trial.
II.
Discussion
Defendant’s sole argument on appeal is that his sentence of 15 years to life pursuant to the one strike law 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. He requests that this court vacate his sentence and remand the matter for resentencing.
The one strike law (§ 667.61) went into effect on November 30, 1994. (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.) The indeterminate life terms prescribed by section 667.61 “greatly exceed the determinate sentences previously available for violations of section 288.” (People v. Hiscox (2006) 136 Cal.App.4th 253, 257.) “Both the California and United States Constitutions proscribe ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) 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. [Citation.]” (Alvarez at p. 1178.) “[I]t is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the 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.” (Hiscox at p. 256.)
Defendant argues, respondent concedes, and we agree that the evidence at trial established that the qualifying offenses for the multiple victim allegations under the one strike law occurred prior to November 30, 1994, when the one strike law went into effect. The abstract of judgment specifically states that count two was committed in 1992 and that count four was committed in 1988, well before the effective date of the statute. It is therefore appropriate to remand the matter for resentencing without applying the one strike law. (People v. Hiscox, supra, 136 Cal.App.4th at pp. 259, 262; People v. Alvarez, supra, 100 Cal.App.4th at p. 1178.)
III.
Disposition
The convictions are affirmed. The sentences, as well as the findings on the one strike allegations as to counts two and four, are vacated, and the matter is remanded for resentencing under the law in effect prior to November 30, 1994.
We concur: Reardon, Acting P.J., Rivera, J.