Opinion
F070508
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JAVIER AUGUSTO QUINTEROS, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1415611)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
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Javier Augusto Quinteros was convicted of several counts of child molestation involving victims younger than the age of 14. The charges were two counts of continuous sexual abuse of a minor under the age of 14, plus counts of sodomy and oral copulation. On appeal, he argues that the consecutive life terms imposed for the two counts of continuous sexual abuse must be reversed on ex post facto grounds, since the verdict did not establish that the crimes continued into the period after the law authorizing a life term and mandating consecutive terms for that offense became effective. He also argues that consecutive sentences for a count of sodomy and a count of oral copulation must be reversed because the trial court mistakenly believed it had no discretion to impose concurrent sentences. The People concede both points. We will reverse the sentence and remand for resentencing. We also order corrections of clerical errors in the abstract of judgment.
FACTS AND PROCEDURAL HISTORY
The district attorney filed an information charging Quinteros with the following six counts: (1) continuous sexual abuse of Jane Doe No. 1, a child younger than age 14, from April 1, 2004, to February 1, 2010 (Pen. Code, § 288.5, subd. (a)); (2) continuous sexual abuse of Jane Doe No. 2, a child younger than age 14, from September 1, 2004, to June 30, 2007 (ibid.); (3) sexual intercourse or sodomy with Jane Doe No. 1, a child age 10 or younger, when Quinteros was 18 years old or older, between February 2, 2010, and March 8, 2010 (§ 288.7, subd. (a)); (4) sodomy with Jane Doe No. 2, a child younger than age 14, and 10 years or more younger than Quinteros, between July 1, 2007, and June 30, 2008 (§ 286, subd. (c)(1)); (5) oral copulation with Jane Doe No. 1, a child younger than age 14, and 10 years or more younger than Quinteros, between March 2, 2010, and March 8, 2010 (§ 288a, subd. (c)(1)); and (6) oral copulation with Jane Doe No. 2, a child younger than age 14, and 10 or more years younger than Quinteros, between July 1, 2007, and September 21, 2008 (ibid.). Counts 1 and 2 included a multiple-victim enhancement. (§ 667.61, subd. (e)(4).)
Subsequent statutory references are to the Penal Code unless otherwise noted.
The information incorrectly cites section 667.61, subdivision (e)(5). --------
Jane Doe No. 1 was 15 years old at the time of the trial in 2014. Jane Doe No. 2 was 20 years old at that time. Both were Quinteros's stepdaughters and both testified at trial. Jane Doe No. 1 testified in detail about numerous sex acts Quinteros committed against her over many years beginning when she was five or six years old. Jane Doe No. 2 testified similarly about acts committed by Quinteros starting when she was in fourth grade. Quinteros also beat both victims and said he would kill them if they told anyone what was happening. He once showed Jane Doe No. 2 a gun when he said this. It is undisputed that the evidence was sufficient to support the convictions.
The jury found Quinteros guilty of counts 1, 2, 4, and 6, and found true the multiple-victim enhancements on counts 1 and 2. It found him not guilty of counts 3 and 5.
The court sentenced Quinteros as follows: 15 years to life on count 1; a consecutive 15 years to life on count 2; six years consecutive on count 4; and two years consecutive on count 6. The aggregate term was 38 years to life.
DISCUSSION
I. Life terms for continuous sexual abuse of a child
The crime of continuous sexual abuse of a child carries a determinate sentence of six, 12, or 16 years in state prison. (§ 288.5, subd. (a).) Until September 20, 2006, this offense was not included in the list of offenses in section 667.61 for which an enhanced term of 15 years to life was mandated in cases in which a multiple-victim allegation was found true. (Former § 667.61.) Further, the offense was not subject to a mandatory consecutive term under former section 667.6. On September 20, 2006, amendments took effect that mandated a 15-years-to-life term in multiple-victim cases and required sentences for multiple counts involving separate victims or separate occasions to be served consecutively. (§§ 667.6, subd. (e)(6), 667.61, subds. (b), (c)(9); Stats. 2006, ch. 337, §§ 32, 33.)
Count 1 alleged continuous abuse of Jane Doe No. 1 from April 1, 2004, to February 1, 2010, and count 2 alleged continuous abuse of Jane Doe No. 2 from September 1, 2004, to June 30, 2007. Both counts included time before and after the effective date of the amendments.
The jury instructions and verdict forms did not require the jury to make any findings about when the last act in the continuous course of abuse took place for either victim. Instead, the jury was instructed, in accordance with CALCRIM No. 1120, to determine, for each victim, whether at least three months passed between the first and last acts. As a result, the verdict does not reflect unanimous findings on count 1 or count 2 that the abuse continued into the period when the new sentencing requirements became effective. In spite of this, the trial court imposed the 15-years-to-life terms and expressly stated that they were statutorily mandated to run consecutively.
In People v. Grant (1999) 20 Cal.4th 150 (Grant), the California Supreme Court considered the issue of when sentencing under a new statute for a continuous course of conduct offense would violate the ex post facto provisions of the state and federal constitutions. As in this case, continuous sexual abuse of a child was at issue, but in Grant it was the offense itself, section 288.5, that became effective during the charged course of conduct. The statute went into effect on January 1, 1990, and the defendant was charged with molesting the victim between June 6, 1988, and April 4, 1990. (Id. at p. 153.)
Our Supreme Court held that the crucial fact was the time of the last act in the course of conduct. The course of conduct was completed when the last act took place. If the last act took place before the effective date of the new law, punishment under the new law would be an ex post facto violation; if it took place after, there would be no violation. (Grant, supra, 20 Cal.4th at pp. 159-162.) In Grant's case, the jury was specifically instructed that it had to decide whether any of the sex acts took place between the effective date of the statute—January 1, 1990—and the end of the course of conduct, April 4, 1990. (Id. at p. 154.) Since the jury found Grant guilty based on these instructions, it necessarily found he committed the last act after the new law was in effect. He chose to continue his criminal conduct after the public was on notice of the new law, so there was no constitutional violation. (Id. at p. 162.)
Quinteros argues, and the People concede, that under the reasoning of Grant there was an ex post facto violation in this case. Because the jury was instructed that Quinteros was guilty if he committed the first and last acts in any period of three months or more from April 1, 2004, to February 1, 2010, for count 1, and from September 1, 2004, to June 30, 2007, for count 2, some or all jurors could have found him guilty even if they did not find he committed the last act after the effective date of the new sentencing law on either count. The parties agree that the case should be remanded for resentencing under the former law. The parties' view is supported by this court's holding in People v. Riskin (2006) 143 Cal.App.4th 234, 244-246 (reversal, on ex post facto grounds, of life sentence under One Strike Law and remand for resentencing under former law where verdict was consistent with sex act having taken place before effective date of One Strike Law), as well as by People v. Hiscox (2006) 136 Cal.App.4th 253, 260-262 (same; verdict did not establish that crimes proved by generic testimony took place after effective date of One Strike Law).
We agree that these decisions are applicable. Because the verdict did not establish that the last act supporting count 1 or count 2 took place on or after September 20, 2006, neither the 15-years-to-life term nor the mandatory consecutive sentence provision was applicable. The error was prejudicial under any standard. Both victims testified about a large number of acts occurring over lengthy periods and there is nothing in the record from which we could find the jury must have relied or probably relied on any act after the effective date of the amendments. We will reverse the sentence and remand for resentencing under the law as it existed before the amendments. For counts 1 and 2, the court should impose terms of 6, 12, or 16 years each, and should exercise its discretion on whether the sentences will run consecutively or concurrently. II. Concurrent vs. consecutive sentences for sodomy and oral copulation
At the sentencing hearing, the trial court stated its belief that, for counts 4 and 6, sentences consecutive to the indeterminate sentences on counts 1 and 2 were mandatory. The parties agree that, in reality, the court had discretion to choose either consecutive or concurrent sentences for these counts.
The trial court seems to have accepted the argument in the People's sentencing brief that section 667.6, subdivision (d), required consecutive terms for counts 4 and 6. That statute mandates consecutive terms "for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." Section 667.6, subdivision (e)(4) lists sodomy in violation of section 286, subdivisions (c)(2), (c)(3), (d), or (k), but the verdict form shows Quinteros was convicted in count 4 of sodomy in violation of section 286, subdivision (c)(1). Section 667.6, subdivision (e)(7) lists oral copulation in violation of section 288a, subdivisions (c)(2), (c)(3), (d), or (k), but the verdict form shows Quinteros was convicted in count 6 of oral copulation in violation of section 288a, subdivision (c)(1). Since there was no statute mandating consecutive sentencing, the court had its usual discretion under section 669 to decide whether consecutive or concurrent sentences were appropriate. The remedy is a remand for resentencing to allow the court to exercise this discretion. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) III. Errors in abstract of judgment
The parties agree that the abstract of judgment contains several clerical errors. First, on counts 1 and 2, the abstract refers to sections 667(b)-(i) and 1170.12, when in reality the sentence was based on section 667.61. The application of section 667.61 was itself erroneous, as we have explained, so this portion of the abstract will necessarily be corrected upon resentencing. Next, the abstract states that the offenses in all counts were committed in 2004. In fact, the information charged and the jury found the offenses were committed at some point during the following time frames: count 1, 2004-2010; count 2, 2004-2007; count 4, 2007-2008; and count 6, 2007-2008. The specification of 2004 as the year of commission is not consistent with the verdicts and must be corrected. IV. Remaining arguments
Quinteros contends his trial counsel rendered ineffective assistance at sentencing because he failed to raise the issues discussed in this opinion. Quinteros also contends the trial court denied him his right to counsel at sentencing by limiting his counsel's arguments. In light of our holding, it is unnecessary to rule on these contentions.
DISPOSITION
The sentence is reversed and the case is remanded to the trial court for resentencing consistent with this opinion. The court is also directed to amend the abstract of judgment to correct the clerical errors identified in part III above. The judgment is affirmed in all other respects.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.