Opinion
E063933
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JORGE GUTIERREZ, JR., Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General and Britton B. Lacy, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1301138) OPINION APPEAL from the Superior Court of San Bernardino County. Stanford E. Reichert, Judge. Affirmed in part; reversed in part. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General and Britton B. Lacy, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Jorge Gutierrez was tried and convicted by a jury of multiple sexual offenses against two young boys, committed while he stayed with the family during leaves from his military service. He was sentenced to an aggregate term of 145 years to life in prison and appealed.
BACKGROUND
Defendant first became acquainted with the Q. family in 2003 or 2004 when defendant's family lived near the Q. family and defendant was school friends with X., the Q.'s oldest son. There were four boys in the Q. family: X., Al., An., and Ai. Al. was born in 2002, and An. was born in 1999. D. Q. (mother) is the mother of the four boys. The Q. family moved away in 2006, and next saw defendant on July 4th, 2008, at a fireworks stand near their new residence. Defendant started coming over to the Q. house occasionally, and sometimes spent the night, until 2009, when he joined the Air Force.
While defendant was in the Air Force, he came over to the Q. house to spend his leave time. Defendant left the Air Force in August 2012, and moved in with the Q. family. Defendant gave mother money to pay for a car for X. in July 2011, and co-signed for a Harley motorcycle for mother's husband. Although he did not always contribute money for household expenses, he would go on shopping sprees for her sons, buying expensive things for them. Defendant referred to mother as "mom," her husband as "dad," and to other family members by familial terms.
In January 2013, defendant moved away from the Q. family. On March 10, 2013, defendant took X. and An. to their paternal grandmother's home for a visit, against mother's wishes. Mother was angry as a result, and called defendant on the phone, yelling at him so that the children overheard. Mother told defendant she never wanted to see him again and he was not allowed to come over to pick up the boys. Subsequently, on March 27, 2013, Al. disclosed that defendant had molested him. The next day, An. made a similar disclosure.
Al. indicated that defendant inserted his penis into Al.'s anus, made Al. rub his penis and testicles, and made Al. suck his penis on various occasions, beginning when Al. was eight or nine. Defendant sodomized Al. in practically every room of the house. On one occasion, defendant made Al. insert a rod from the window blinds (or curtains) into defendant's anus. On another occasion, defendant made Al. rub his penis with his hand as they watched television in the family room with the rest of the family present, while spooning under a blanket, although no one noticed anything. Defendant also had Al. insert his finger into defendant's anus, once.
Al. gave conflicting versions of when the last incident occurred: he first told the Child Abuse Center interviewer that the final incident occurred on December 28, 2012, but, after consulting his mother, stated that it was in February 2013, when defendant's apartment had an electrical outage. Al. was angry at defendant for excluding him (Al.) from activities involving his brothers, and because defendant bought things for his brothers.
An., indicated that defendant put his hands down An.'s pants during a game of hide-and-seek at Telephone Park, when defendant and An. hid there. Both defendant and An. had each other's hands down each other's pants. After that, defendant did other things: defendant made An. suck defendant's penis, inserted his penis in An.'s anus, and put his hands on An.'s penis. An. also described an incident in which defendant directed him to insert the rod for the blinds into defendant's anus, and some incidents in which defendant made An. "jerk him off." However, the family got rid of the rod, as well as the blanket from the television room and the baby oil that the boys indicated defendant had used as a lubricant after Al.'s court testimony.
Defendant bought expensive gifts for An. An. continued to hang out with defendant after the molestations stopped, and defendant did not molest him again. Prior to the disclosure to his mother in March 2013, An. never confronted defendant about the molestations because he did not want to ruin getting gifts from defendant. An. was angry when he discovered that defendant had given Al. a massage, but not him. After An.'s mother got angry with defendant for taking the boys to see their paternal relatives and forbade defendant from visiting, An. missed defendant because defendant did nice things for him. He continued to send text messages to defendant, stating that he loved defendant, because he wanted defendant to take him out to eat.
As to Al., defendant was charged with three counts of sodomy, a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a), counts 1, 2, & 3), one count of oral copulation (§ 288.7, subd. (b), count 4), and two counts of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a), counts 5 & 6)). As to An., defendant was charged with one count of sodomy (§ 288.7, subd. (a), count 7), one count of oral copulation (§ 288.7, subd. (b), count 8), and two counts of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a), counts 9 & 10). As to all counts, it was further alleged that there were multiple victims, within the meaning of section 667.61, subdivisions (a) and (d).
All further statutory references are to the Penal Code unless otherwise indicated. --------
Defendant was tried by a jury. The jury deadlocked on three counts: counts 4, 8, and 10, so a mistrial was declared as to those counts. Defendant was convicted of the remaining counts, and the jury made a true finding as to the multiple victim allegation. On the People's motion, counts 4, 8 and 10 were dismissed.
At the sentencing hearing, the People made a motion to amend the information to correct the statutory references to the special allegation, changing it from section 667.61, subdivisions (a) and (d), to section 667.61, subdivisions (a) and (e). Defendant did not object. The court then sentenced defendant to consecutive terms of 25 years to life for counts 1, 2, 3, and 7, and consecutive terms of 15 years to life for counts 5, 6, and 9, for a total aggregate sentence of 145 years to life.
Defendant timely appealed.
DISCUSSION
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. The opening brief also includes the declaration of appellate counsel stating defendant was advised he could file his own brief with this court. We invited defendant to submit a supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and requested supplemental briefing on the issue of the propriety of amending the information to change the statutory designation under the One Strike law after the convictions and on the date of sentencing.
1. Propriety of Amending Information After Verdict Has Been Rendered.
Penal Code section 1009 provides that leave may be granted to amend an information to charge any offense shown by the evidence taken at the preliminary examination. (§ 1009; People v. Birks (1998) 19 Cal.4th 108, 129.) The test for determining whether the trial court abused its discretion in permitting the amendment of the information is whether the amendment prejudiced the substantial rights of the defendant, and attempted to change the offense to one not shown by the evidence taken at the preliminary examination. (People v. Williams (1997) 56 Cal.App.4th 927, 932.)
By statute, the People may amend an accusatory pleading to add allegations relating to prior felony convictions (see § 969a), but some enhancements require findings as to specific facts. "'[A] defendant has a cognizable due process right to fair notice of specific enhancement allegations that will be invoked to increase punishment for his crimes.'" (People v. Riva (2003) 112 Cal.App.4th 981, 1002, quoting People v. Mancebo (2002) 27 Cal.4th 735, 747.)
Before imposing the alternative sentencing under section 667.61, subdivision (i), the facts of any specified circumstance must be pled and proved to the trier of fact or admitted by the defendant in open court. (People v. Mancebo, supra, 27 Cal.4th at p. 742.) "If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty." (People v. Mancebo, supra, 27 Cal.4th at pp. 743-744; § 667.61, subd. (f)).
In Mancebo, the defendant was charged with forcible rape and sodomy offenses against different victims, but the information did not allege multiple victim circumstances, or refer to subdivision (e)(5) of section 667.61 in connection with those counts. The Supreme Court held the accusatory pleading was inadequate because it failed to put the defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate terms under section 667.61, subdivision (a), and use the circumstance of gun use to secure additional enhancements under section 12022.5.
In reaching its conclusion, the Supreme Court relied in part on the holding of People v. Haskin (1992) 4 Cal.App.4th 1434, where the defendant admitted an allegation of a prior prison term under section 667.5, subdivision (b) for a prior burglary conviction. The information did not allege that the burglary was of a residence, but, after the defendant admitted the allegation, the court made a factual finding, based on the exhibits offered as proof of the allegation, that the burglary was of a residence. At sentencing, the court imposed a five-year enhancement for the prior burglary conviction under former section 667 (now § 667, subd. (a)(1)). The reviewing court in Haskin concluded that because the defendant was neither statutorily nor factually charged with, nor consented to, a substituted section 667 enhancement in conjunction with the prior conviction, the trial court "was without authority to impose a sentence greater than that authorized by section 667.5, subdivision (b), the charging statute which appellant admitted." (People v. Haskin, supra, 4 Cal.App.4th at p. 1440.)
Here, the information included an allegation of multiple victims under section 667.61, subdivisions (a) and (d). The jury returned a true finding as to that allegation, which exposed defendant to indeterminate terms of 15 years to life. After the verdicts, the People sought to amend the information to allege multiple victims within the meaning of section 667.61, subdivisions (a) and (e), which requires an additional factual finding, and exposed the defendant to the imposition of 25 years to life for each count of conviction. Issues of fact require a jury determination, unless the defendant has waived a jury or has pleaded guilty. (People v. Najera (1972) 8 Cal.3d 504, 510.)
As in People v. Haskin, supra, the court lacked authority to permit the amendment, so the order was voidable. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 287-291.) We are aware that defendant's trial counsel did not object to the amendment, and conclude there could be no tactical basis for not objecting. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Zimmerman (1980) 102 Cal.App.3d 647, 657-658 [no plausible tactical explanation possible].)
2. Is there substantial evidence to support the true finding of the special allegation pursuant to Section 667 .61, subdivisions (a) and (e)?
The jury was instructed to make findings that multiple victims were involved, for purposes of determining defendant's eligibility for sentencing under the One Strike sentencing law. It returned guilty verdicts on four counts of violating section 288.7, subdivision (a) (sodomy), and three counts of lewd acts upon a child under 14. At the sentencing hearing, after the verdicts and findings were returned, the prosecutor amended the information to allege special allegations pursuant to section 667.61, subdivisions (a) and (e). As a consequence, defendant received four consecutive terms of 25 years to life for the sodomy counts, and consecutive terms of 15 years to life for lewd acts convictions. We requested briefing to determine whether there was substantial evidence to support the circumstances findings. We now conclude that imposition of indeterminate terms for counts 5, 6 and 9 was error.
Subdivision (a) of section 667.61 authorizes a sentence of 25 years to life for certain enumerated sex offenses under two or more circumstances listed in subdivision (e). Subdivision (b) of that section provides for a sentence of 15 years to life for any person convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e).
The circumstances under subdivision (e) include whether the defendant (1) kidnaped the victim; (2) committed the offense during a burglary; (3) personally used a dangerous or deadly weapon or firearm; (4) committed an offense specified in subdivision (c) against more than one victim; (5) engaged in tying or binding the victim or another; (6) administered a controlled substance to the victim; or (7) committed the present offense in violation of section 264.1, subdivision (d) of section 286, or subdivision (d) of section 288a, and, in the commission of that offense, committed any act described in paragraphs (1), (2), (3), (5) or (6) of subdivision (d). In other words, in addition to the qualifying convictions, and in addition to the multiple victim circumstance, in order to qualify for the 25 year-to-life sentence, there must be evidence to show the existence of a second circumstance under section 667.61, subdivision (e)(1), (2), (3), (5), or (6).
In construing the One Strike law, the California Supreme Court has held that the jury must first decide whether all the elements of the underlying substantive crime have been proven, and, if the jury convicts on the substantive crime, the jury independently determines whether the factual allegations that would bring the defendant under the One Strike sentencing scheme have also been proven. (People v. Carbajal (2013) 56 Cal.4th 521, 534, citing People v. Anderson (2009) 47 Cal.4th 92, 102.)
Here, defendant was convicted of four counts under section 288.7, subdivision (a), for which a 25 year-to-life term is provided by statute. However, convictions for violating section 288, subdivision (a), are only eligible for indeterminate sentencing if they fall within the scope of offenses specified under section 667.61, subdivisions (c) and (e). Violations of section 288, subdivision (a) are listed in section 667.61, subdivision (c), but defendant would only be eligible for a 15 year-to-life sentence if the jury made a true finding of one circumstance pursuant to section 667.61, subdivision (e). However, because the People did not amend the information until after the verdict, the jury made no finding under subdivision (e) of section 667.61.
Here, the only circumstance found by the jury as to each count to which the allegation applied was that there were multiple victims within the meaning of section 667.61, subdivision (d). Nevertheless, subdivision (b) of section 667.61 does not permit an indeterminate term for a conviction of lewd and lascivious acts on a minor based on a finding pursuant to section 667.61, subdivision (d).
Defendant was convicted of four counts of sodomy on a child of 10 or less, under section 288.7, subdivision (a), and three counts of lewd acts on a child under 14, under section 288, subdivision (a). Each count carried an allegation under the one-strike sentencing law, § 667.61, subdivisions (a) and (d), that multiple victims were involved. No other circumstances were alleged and the jury returned only a finding that multiple victims were involved. Because there was no funding pursuant to subivision (e) of section 667.61, as to counts 5, 6 and 9, there is insufficient evidence to support the applicability of that particular One Strike sentence as to the lewd and lascivious acts convictions.
We reverse the sentence as to counts 5, 6, and 9 and remand for resentencing.
DISPOSITION
The convictions are affirmed but the sentence as to counts 5, 6, and 9 are reversed and remanded for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.