People v. Gonzalez CA2/8 ( 2021 )

Filed 6/15/21 P. v. Gonzalez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303455
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA469077)
v.
ISMAEL ALEJANDRO GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. James R. Dabney, Judge. Affirmed in part and
reversed and remanded.
Victoria A. Stafford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Ismael Gonzalez was convicted of 11 counts of child sexual
abuse involving three victims: lewd acts on a child under age 14
1
(Pen. Code, § 288, subd. (a); counts 1, 2, 3, 14, 15, 16, 19);
continuous sexual abuse (§ 288.5; count 4); lewd acts on a child
age 14 or 15 (§ 288, subd. (c)(1); counts 5, 6); and oral copulation
of a child age 10 or under (§ 288.7, subd. (b); count 13). For the
section 288, subdivision (a) counts and the section 288.5 count,
the jury found true the multiple victim circumstance in the One
Strike law. (§ 667.61, subds. (b), (c).)
Gonzalez was sentenced to 120 years to life plus two years
and eight months. That consisted of six consecutive One Strike
terms of 15 years to life for the section 288, subdivision (a)
violations (counts 1, 2, 3, 14, 15, 16); a consecutive One Strike
term of 15 years to life for the violation of section 288.5 (count 4);
a consecutive term of 15 years to life for the violation of section
288.7, subdivision (b) (count 13); plus consecutive determinate
terms of two years and eight months respectively for the section
288, subdivision (c) violations (counts 5, 6). The court stayed the
One Strike term on count 19.
Gonzalez does not challenge his convictions, so we forego
reciting the horrific facts in this case. The parties agree the trial
court committed three sentencing errors: (1) The court violated
ex post facto principles by applying the One Strike law to the
section 288.5 violation in count 4 because the offense was based
entirely on acts that predated the addition of section 288.5 to the
One Strike law. (2) The court failed to exercise its discretion to
impose concurrent or consecutive sentences based upon a
mistaken belief consecutive sentencing was mandatory. (3) The
1
Undesignated statutory citations refer to the Penal Code.
2
court erroneously refused to grant presentence conduct credit.
Respondent also points out the abstracts of judgment omitted a
$300 sex offender fine orally imposed at sentencing.
We agree these errors occurred. We remand for
resentencing and otherwise affirm.
Ex Post Facto Violation
Gonzalez was convicted in count 4 for violating section
288.5, which prohibits continuous sexual abuse of a minor under
age 14. (§ 288.5, subd. (a).) The information alleged the acts
underlying this offense occurred between 2002 and 2005, and the
jury specifically found in the verdict form that the acts occurred
during those years. As recommended by the People, the trial
court sentenced Gonzalez to 15 years to life on this count by
applying the One Strike law, which lists section 288.5,
subdivision (a) among the offenses subject to its provisions.
(§ 667.61, subds. (b), (c)(9).)
Section 288.5 was not subject to the One Strike law until
September 20, 2006, after the acts underlying this count. (Stats.
2006, ch. 337, § 33, p. 2639.) Before that time, section 288.5 was
not a One Strike offense. (People v. Valenti (2016) 243
Cal.App.4th 1140, 1174.) “The indeterminate life sentences now
prescribed by section 667.61 greatly exceed the determinate
sentences of 6, 12, or 16 years previously available for violations
of section 288.5. Thus, the ex post facto clause prohibits
sentencing defendants under the One Strike law for section 288.5
violations committed before September 20, 2006.” (Ibid., fn.
omitted.)
3
Thus, Gonzalez’s One Strike sentence on count 4 must be
vacated. On remand, the trial court should exercise its discretion
to sentence him according to the determinate triad set forth in
section 288.5.
Consecutive Sentencing
At sentencing, the People argued for consecutive sentences
for all counts. Particularly, the People argued the One Strike
counts required consecutive sentencing. Gonzalez argued for
concurrent sentences, given his low risk of reoffending. The trial
court imposed consecutive sentencing on 10 of 11 counts. The
court explained: “I think legally based on the allegation that was
found to be true, these counts are mandatory consecutive because
they involve—some counts involve separate victims, other counts
involve separate victims on separate occasions the way this was
alleged.” It is not clear what the court meant by “these counts,”
but the “allegation that was found true” must have referred to
the only allegation in the case: the multiple-victim circumstance
the jury found true for the seven One Strike counts pursuant to
section 667.61, subdivision (e)(4).2
We interpret the court’s comment as a belief that the One
Strike counts required mandatory consecutive 15-years-to-life
terms. That belief was mistaken.
We start with the six consecutive One Strike terms based
on violations of section 288, subdivision (a) (counts 1, 2, 3, 14, 15,
16). Section 667.61, subdivision (i) requires consecutive
sentences only for certain One Strike crimes, namely those
2
The court stayed the sentence for the section 288,
subdivision (a) violation in count 19, so it was not subject to
consecutive sentencing and we do not address it further.
4
offenses “specified in paragraphs (1) to (7), inclusive, of
subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n),” so long as the “crimes involve separate victims
or involve the same victim on separate occasions as defined in
subdivision (d) of Section 667.6.” (§ 667.61, subd. (i).) Section
288, subdivision (a) is not listed in paragraphs (1) through (7) of
subdivision (c) or subdivision (n) of section 667.61. Hence, the
One Strike law does not require mandatory consecutive
sentencing for the section 288, subdivision (a) counts.
Even if we looked beyond the One Strike law, the
conclusion is the same for these offenses. Section 667.6 lists
certain sex offenses subject to mandatory consecutive sentencing
if the crimes involve multiple victims or the same victim on
separate occasions. Section 288, subdivision (a) is not listed.
(§ 667.6, subd. (e).)
We move on to the violation of section 288.5 (count 4).
Per our discussion above, it is not subject to the One Strike law.
We are left with section 667.6. Section 667.6 does, in fact, list
section 288.5 as an offense requiring mandatory consecutive
sentencing if the crimes involved multiple victims, as the jury
found here. However, section 288.5 was not added to section
667.6 until 2006, after the acts underlying this offense. (Stats.
2006, ch. 337, § 32.) For the same reasons discussed above, ex
post facto principles prevent applying the mandatory consecutive
sentencing provision to this count. (See People v. Simmons
(2012) 210 Cal.App.4th 778, 797.) Hence, the
consecutive/concurrent decision on this count is left to the trial
court’s discretion. (§ 669; see People v. Woodworth (2016) 245
Cal.App.4th 1473, 1479.)
5
“ ‘Generally, when the record shows that the trial court
proceeded with sentencing on the erroneous assumption it lacked
discretion, remand is necessary so that the trial court may have
the opportunity to exercise its sentencing discretion at a new
sentencing hearing. [Citations.] Defendants are entitled to
“sentencing decisions made in the exercise of the ‘informed
discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed
discretion.’ ” (People v. Woodworth, supra, 245 Cal.App.4th at
p. 1480.) Remand is necessary for the court to exercise its
discretion to impose consecutive or concurrent terms for each of
these counts.
The court also imposed consecutive sentences on the
remaining counts for violations of section 288.7, subdivision (b)
(count 13) and section 288, subdivision (c) (counts 5, 6). There is
no indication the court believed consecutive sentencing on these
counts was mandatory. It is not; these offenses are not One
Strike offenses and are not listed in section 667.6 as requiring
consecutive terms. However, because we are vacating Gonzalez’s
sentence on count 4 and remanding for reconsideration of the
consecutive sentencing on other counts, the court may reevaluate
all of its sentencing decisions in light of the changed
circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893
[“[W]hen part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate,
so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ”].)
6
Presentence Conduct Credit
The trial court denied Gonzalez presentence conduct credit.
It did not give a reason on the record, but the People argued
conduct credit was barred by section 2933.2. That is wrong;
section 2933.2 only bars conduct credit for defendants convicted
of murder. (§ 2933.2, subd. (a).)
On appeal, Gonzalez contends he is entitled to 15 percent
conduct credit under section 2933.1. The Attorney General
agrees. As discussed, Gonzalez was sentenced to seven
consecutive One Strike terms (with one additional count stayed),
and three consecutive terms under other statutes. Five of those
offenses—counts 1, 2, 3, 4, and 5—were committed prior to
September 20, 2006. Per our opinion here, count 4 is not subject
to the One Strike law, so that leaves counts 1, 2, and 3 as One
Strike counts that predate September 20, 2006.
That date is critical because the One Strike law previously
allowed up to 15 percent of actual credit as conduct credit, but
the Legislature amended section 667.61, subdivision (j) of the
One Strike law effective September 20, 2006 to remove that
provision. (Stats. 2006, ch. 337, § 33, p. 2639.) Cases have
examined the legislative history of this change and concluded the
Legislature intended to eliminate conduct credit for One Strike
offenses. (People v. Dearborne (2019) 34 Cal.App.5th 250, 267–
268; People v. Adams (2018) 28 Cal.App.5th 170, 181–182.)
The complication here is that this change only applies to
some of Gonzalez’s offenses. We measure the entitlement to
presentence conduct credits by the date of the offense. (People v.
Ramirez (2014) 224 Cal.App.4th 1078, 1086.) This leaves
Gonzalez with seven offenses that qualify for 15 percent conduct
credit: counts 4, 5, 6, and 13, which qualify by their own terms
7
regardless of date (§ 2933.1); and One Strike counts 1, 2, and 3,
which predate the elimination of conduct credits in the One
Strike law. One Strike counts 14, 15, and 16 postdate the
elimination of the 15 percent conduct credit in the One Strike
law.
The question becomes: which offenses control calculation of
presentence conduct credits when they straddle a change in the
law? We asked the parties to brief this issue. Gonzalez argues,
and the Attorney General concedes, Gonzalez is entitled to 15
percent presentence conduct credit, notwithstanding the fact that
he committed some of his One Strike offenses after the
elimination of conduct credit in section 667.61, subdivision (j).
For the purpose of awarding presentence conduct credits,
the trial court has an all-or-nothing choice. Gonzalez’s
“presentence confinement cannot be divided among his various
offenses, with the court applying one credit rate to those
committed before [September 20, 2006], and a different rate to
those committed after that date. His confinement must be
‘indivisibly attributable to all of the offenses with which [he] is
charged and of which he is eventually convicted.’ (In re Reeves
(2005) 35 Cal.4th 765, 775.)” (People v. Ramirez, supra, 224
Cal.App.4th at p. 1084; see People v. Nunez (2008) 167
Cal.App.4th 761, 765 [section 2933.1 presentence conduct credit
limit “applies to the offender, not the offense; thus, the 15 percent
limit applies to each offense of a defendant’s entire prison term if
any of the offenses for which he is sent to prison is violent”].)
Applying the post-2006 elimination of conduct credits to
Gonzalez’s unitary term when some counts predated that change
could raise ex post facto problems. (See Weaver v. Graham (1981)
450 U.S. 24, 31–33.) We need not decide the issue. We accept the
8
Attorney General’s concession Gonzalez is entitled to 15 percent
presentence conduct credit.
On remand, the trial court must calculate and award 15
percent presentence conduct credit pursuant to section 2933.1.
Days of custody credit are calculated from the date of arrest
through the date of sentencing. (People v. Rajanayagam (2012)
211 Cal.App.4th 42, 48.) While the court awarded 527 days of
custody credit, the parties indicate the record does not actually
reflect the date of Gonzalez’s arrest. Without that, calculating
conduct credit under section 2933.1 is impossible. On remand,
the trial court must recalculate the correct days of custody and
conduct credit.
Sex Offender Fine
The trial court orally imposed a $300 sex offender fine. The
fine is not reflected in the abstracts of judgment. The court must
ensure the fine is reflected in the abstract of judgment issued
after resentencing.
DISPOSITION
Gonzalez’s sentence is vacated. The case is remanded for
resentencing consistent with this opinion. In all other respects,
the judgment is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J. WILEY, J.
9