P. v. Jones CA4/2 ( 2013 )

Filed 3/6/13 P. v. Jones CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054080
v. (Super.Ct.No. FMB900072)
DAVID WAYNE JONES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,
Judge. Affirmed in part, reversed in part with directions.
Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, David Wayne Jones, is serving 60 years to life (four consecutive 15-
years-to-life terms) for sexually abusing five little girls. Defendant argues that one of
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these 15-years-to-life terms, count six, was not eligible for “One Strike” sentencing at the
time he committed the crime and so he should be resentenced. As discussed below, the
People concede, and this court agrees, that defendant should be resentenced.
STATEMENT OF PROCEDURE
On April 11, 2011, a jury convicted defendant of three counts of committing a
lewd act upon a child under age 14 (counts one, four and five; victims S.L., R.F & K.F;
Pen. Code, § 288, subd. (a));1 sexual penetration of a child under age 10 (count two;
victim S.L; § 288.7, subd. (b)); battery (count three; victim S.K.; § 242)); continuous
sexual abuse of a child under age 14 (count six; victim J.B.; § 288.5, subd. (a)); and
possessing child pornography (count seven; § 311.11, subd. (a)). The jury found true
allegations that defendant had substantial sexual conduct (§ 1203.66, subd. (a)(8)) with
S.L. in counts one and two, and with J.B. in count six, and that he committed sex offenses
against more than one victim under the One Strike law (§ 667.61, subd. (e)(4)).
On June 1, 2011, the trial court sentenced defendant under the One Strike Law and
section 288.7 to four consecutive terms of 15 years to life for counts two, four, five and
six. The court stayed defendant’s 15-years-to-life sentence for count one and imposed a
concurrent term of six months for count three and a concurrent term of two years for
count seven. This appeal followed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
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DISCUSSION
Section 667.61, the One Strike law, requires a sentence of 15 years to life for any
person convicted of specified sexual offenses that are listed in subdivision (c), under
specified aggravating circumstances that are listed in subdivision (e). The qualifying
offenses listed in the current version of section 667.61 include violations of section 288,
subdivision (a) (committing a lewd act upon a child under age 14) and section 288.5,
subdivision (a) (continuous sexual abuse of a child under age 14). (§ 667.61, subd.
(c)(8), (9)). The aggravating circumstances listed in subdivision (e) include the defendant
being convicted of committing a qualifying offense against more than one victim.
(§667.61, subd. (e)(5).)
Here, the jury found true the aggravating circumstance that defendant had
committed qualifying offenses against more than one victim. Accordingly, the trial court
sentenced defendant to three consecutive one strike terms of 15 years to life for counts
four, five and six, plus an additional consecutive term of 15 years to life for violating
section 288.7, subdivision (b), in count two.
Count six is continuous sexual abuse of a child, section 288.5, subdivision (a). In
2002, when defendant committed this offense, it was not listed in section 667.61,
subdivision (c), as one of the offenses for which he could be sentenced under the One
Strike law. At that time, the sentencing range for a conviction under section 288.5,
subdivision (a), was 6, 12 or 16 years in prison (Former Pen. Code, § 288.5, subd. (a)).
The Legislature added it to the list of offenses subject to one strike sentencing (§ 667.61,
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subd. (c)(9)) in an amendment that became effective on September 20, 2006. (Stats.
2006, ch. 337, § 33, pp. 2163-2164.)
The federal and California Constitutions prohibit ex post facto laws. (U.S. Const.,
art. I, § 10; Cal. Const., art. I, § 9; People v. Delgado (2006) 140 Cal.App.4th 1157,
1163.) Any law that applies to events occurring before its enactment and which
disadvantages the offender either by altering the definition of criminal conduct or
increasing the punishment for the crime is prohibited as ex post facto. (Delgado, at p.
1164.)
Because sentencing under the 2006 amendment to section 667.61 increased the
punishment imposed on defendant to a term of 15 years to life instead of a maximum
term of 16 years, the law disadvantaged defendant. Thus, application of section 667.61 to
count six in this case violated the ex post facto clause of both the California and United
States Constitutions.
DISPOSITION
The judgment of conviction is affirmed but defendant’s sentence is vacated and
remanded for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
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KING
J.
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