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Filed 5/2/17 P. v. Gutierrez CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
v.
JORGE GUTIERREZ, JR.,
Defendant and Appellant.
E063933
(Super.Ct.No. FWV1301138)
OPINION
APPEAL from the Superior Court of San Bernardino County. Stanford E.
Reichert, Judge. Affirmed.
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
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life in prison and appealed. After appellate counsel filed a brief in accordance with the
procedures outlined in People v. Wende (1979) 25 Cal.3d 436, we requested
supplemental briefing regarding the propriety of permitting the People to amend the
information after the verdict had been rendered, and whether the elements of Penal Code1
section 667.61, the “One Strike” sentencing law pertaining to certain sexual offenses,
were supported by substantial evidence. After supplemental briefing, we affirmed the
convictions, concluded that the amendment of the information was improper, and
modified the sentence on three counts. The modification was ordered because simple
lewd and lascivious conduct with a minor did not qualify for an indeterminate sentence
pursuant to section 667.61, subdivision (e), because that sentencing factor was not
alleged in the original information, and because it requires a finding of two
circumstances, whereas the jury only found one.
Subsequently, the People filed a petition for rehearing as to the adequacy of the
evidence to support the section 667.61 findings. We vacated our opinion, granted
rehearing, and solicited additional briefing from the parties. Because both sides agree
that there is an adequate basis to impose a “One Strike” sentence on all counts, we now
affirm.
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

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All further statutory references are to the Penal Code, unless otherwise
specified.
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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
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one occasion, defendant made Al. insert a rod from the window blinds (or curtains) into
defendant’s anus. On another occasion, defendant sodomized Al. while 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
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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), count 6). As to An., defendant was charged
with two counts of sodomy (§ 288.7, subd. (a), counts 7, 8), and two counts of lewd and
lascivious acts upon a child under the age of 14. (§ 288, subd. (a).) As to all counts, it
was further alleged that there were multiple victims, within the meaning of section
667.61, subdivisions (a) and (d).
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 667.61,
subdivisions (a) and (d), to section 667.61, subdivisions (a) and (e). Defendant did not
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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 filed a brief under the authority of People v. Wende, supra, 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 issues 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, and the sufficiency of the evidence to support indeterminate sentences
on counts 5, 6, and 9.
1. Propriety of Amending Information After Verdict Has Been Rendered.
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
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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.)
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 (2002) 27 Cal.4th 735,
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. (§ 667.61, subd. (f); People v. Mancebo, supra, 27 Cal.4th at pp. 743-744.)
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
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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 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
jury or has pleaded guilty. (People v. Najera (1972) 8 Cal.3d 504, 510.)
Because the court lacked authority to permit the amendment, 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
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could be no tactical basis for not objecting. (Strickland v. Washington (1984) 446 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].) Nevertheless, because both
sides agree the defense had notice that the People would be seeking indeterminate terms
based on the multiple victim factor notwithstanding the reference to the wrong
subdivision of section 667.61, we find the error did not prejudice defendant.
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. Both sides agree that the sentences were proper.
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
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circumstances specified in subdivision (e). One of the circumstances set out in
subdivision (e) applies when the defendant committed an offense against more than one
victim. (§ 667.61, subd. (e)(4).)
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. Defendant was also convicted of
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. The jury made true findings on all counts
that multiple victims were involved. Notwithstanding the pleading error, there is
sufficient evidence to support the findings.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
SLOUGH
J.