Opinion
E051724 Super.Ct.No. SWF015353
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. ISAAC FERMAN ARRIAGA, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion nas not been certified for
publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
Defendant and appellant Isaac Fermen Arriaga contends, and the People concede, that an error exists in the abstract of judgment. We order the error corrected and affirm.
BACKGROUND
A jury convicted defendant of: two counts of committing a lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a), counts 1 & 2); committing a lewd act on a child age 14 or 15 years while being at least 10 years older than the child (Pen. Code, § 288, subd. (c)(1), count 3); willfully inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a), count 5); three counts of willfully inflicting cruel or inhuman corporal punishment upon a child (Pen. Code, § 273d, subd. (a), counts 6, 8 & 9); two counts of willfully causing child abuse likely to produce great bodily harm (Pen. Code, § 273a, subd. (a), counts 7 & 10); and two counts of willfully disobeying a restraining order (Pen. Code, § 166, subd. (a)(1), counts 11 & 12).
The trial court selected count 1 as the principal term and imposed the upper term of eight years. The trial court imposed one-third consecutive midterms for counts 2, 3, 5, 6, 7, and 10. Because counts 8 and 9 involved the same victim in the same time period as count 10, the trial court found that the Penal Code section 654 prohibition against multiple punishment for the same act applied to counts 8 and 9. Thus, the trial court imposed and stayed four year midterms for both counts 8 and 9. For counts 11 and 12, the trial court imposed sentences of 40 days, but stayed the sentence on count 12 pursuant to Penal Code section 654. Defendant was thereby sentenced to state prison for a total term of 15 years eight months.
DISCUSSION
Defendant contends, and the People concede, the abstract of judgment erroneously has the "consecutive 1/3 violent" box marked, rather than just the "654 Stay" box marked for count 8. They are correct. We also note that the abstract marks the count 10 child abuse count as violent rather than non-violent, and marks count 2 as non-violent rather than violent. A violation of Penal Code section 273a, subdivision (a), is not defined as a violent felony, but violations of Penal Code section 288, subdivision (a), are defined as violent felonies. (Pen. Code, § 667.5, subd. (c).) Additionally, counts 2, 3, 7, and 10 all have their term length preceded by an open parenthesis, but the stayed counts (8 & 9) do not have a parenthesis, even though those terms do not contribute to the "principal or consecutive time imposed" to be included in the relevant field. Because we have the inherent power to correct clerical errors to make records reflect the true facts (People v. Mitchell (2001) 26 Cal.4th 181, 185), we will order the correction of the abstract of judgment.
DISPOSITION
The superior court clerk is directed to correct the abstract of judgment to: mark count 2 as consecutive 1/3 violent rather than non-violent; remove the consecutive 1/3 violent mark from count 8; remove the parentheses from the term lengths of counts 2, 3, 7, and 10; and add parentheses around the term lengths of counts 8 and 9. The clerk is then ordered to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.