Error and/or relief
The defendant’s 10-year prison terms constitute ex post facto punishment. We reverse the judgment and remand for a new sentencing hearing.
First Holding:
The trial court instructed the jurors that the offenses charged in counts 1 through 4 allegedly occurred sometime between a specific date in 2007 and a specific date in 2015.
The jurors made no specific finding about the dates of the acts on which they convicted the defendant for counts 1 through 4. The jury made no finding that the offenses in counts 1 through 4 occurred before the Legislature increased the sentencing triad from 3-6-8 years to 5-8-10 yearson September 9, 2010. In addition, the record does not establish that the jury must have based its verdicts on acts occurring after that date.
Thus, we conclude the trial court violated the prohibition against ex post facto laws by imposing 10-year terms for the defendant’s convictions on counts 1 through 4.
Authority:
People v. Hiscox (2006) 136 Cal.App.4th 253, 257–262
Second Holding:
As to the remedy for the ex post facto violation, we exercise our discretion to vacate the defendant’s sentence and remand the matter for full resentencing. On remand, the trial court should impose prison terms on counts 1 through 4 in accordance with the triad in effect prior to September 9, 2010.
Authority:
PEN 1260
People v. Hiscox (2006) 136 Cal.App.4th 253, 262
People v. Buycks (2018) 5 Cal.5th 857, 893