Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI701352 Robert E. Law, Judge. (Retired Judge of the Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Ramirez P.J.
Defendant pled guilty to five counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)), after having agreed, as part of a plea bargain, to plead guilty to six such acts. The trial court sentenced defendant to the agreed to term of 18 years in prison for the six convictions. Defendant’s request for a certificate of probable cause was twice denied by the trial court.
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Because defendant did not actually plead guilty to one of the counts, we reverse his conviction for that count, reverse the two year prison sentence imposed for that count, and remand the matter to the trial court to permit defendant to plead guilty to that count and to be sentenced for it.
Because counsel below stipulated that there was a factual basis for defendant’s plea or agreed that the factual basis was contained in the court’s file, and no facts concerning these crimes appear in the record before us, we do not include a statement of facts.
The change of plea form recites that defendant desired to change his plea to guilty of six counts of committing lewd and lascivious acts on a minor and that he would be sentenced to a total term of 18 years—eight for count 1 and two each for counts 2 through 6. However, at the taking of the plea, the trial court interrupted itself when taking defendant’s guilty plea to count 3, asking counsel whether the victim of this count was the same as the victim of counts 1 and 2. After receiving counsel’s reply, the trial court took defendant’s plea to count 4, but never obtained his plea to count 3. Therefore, the matter must be remanded for the trial court to have defendant plead guilty to count 3 and for the trial court to sentence him to the agreed-to two-year term for that count.
We have now concluded our review of the record and find no other issues.
DISPOSITION
The judgment is affirmed as to counts 1, 2, 4, 5, and 6. Defendant’s conviction for count 3 and it’s two-year sentence are reversed. The matter is remanded to permit defendant to enter a plea of guilty to count 3 and for the trial court to sentence him to a two-year term for that conviction.
We concur: Hollenhorst, J, King J.