Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08343
SCOTLAND, P.J.
Between June 24, 1996 and June 23, 1998, when C.U. was seven to eight years old, defendant Theodore Loren Clark touched C.U.’s vagina with his hand on three occasions and with his penis on one occasion, and twice orally copulated her. Between June 11, 1996, and June 10, 1999, when D.S. was six to eight years old, defendant sodomized D.S. When questioned by law enforcement, defendant admitted the crimes.
Defendant entered a negotiated plea of no contest to seven counts of lewd and lascivious conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); further section references are to the Penal Code), six involving C.U. and one involving D.S. In connection with each count, defendant admitted he engaged in substantial sexual conduct within the meaning of section 1203.066, subdivision (a)(8). In exchange, the multiple victim allegation (§ 667.61, subd. (e)(5)) was to be dismissed. The parties agreed to a stipulated term of 20 years in state prison, i.e., the upper term of eight years on one count and consecutive terms of two years (one-third the midterm) on the remaining six counts.
The trial court imposed the stipulated sentence, ordered defendant to pay a $10,000 restitution fine and another $10,000 restitution fine that was suspended unless parole is revoked, directed defendant to register as a sex offender, awarded a total of 536 days of presentence custody credit, and reserved jurisdiction over victim restitution.
Defendant appeals. He did not obtain a certificate of probable cause (§ 1237.5).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks U.S. to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We find two errors in the judgment.
In accordance with the plea agreement, the prosecutor moved to dismiss the multiple victim allegation. The court took the motion under submission until the sentencing hearing, but failed to dismiss the allegation at that time. We will modify the judgment to do so.
The court awarded 358 days of custody credit and 178 days of conduct credit, for a total of 536 days of presentence custody credit. The conduct credit is wrong because section 2933.1 limits such credit to 15 percent of actual custody credit for convictions of felonies listed in section 667.5. Section 2933.1 was enacted in 1994, effective September 21, 1994 (Stats. 1994, ch. 713, § 1, p. 3448), predating defendant’s crimes, which occurred between June 1996 and June 1999. At that time, one of the offenses designated was “[l]ewd acts on a child under the age of 14 years as defined in Section 288.” (Former § 667.5, subd. (c)(6); Stats. 1994. ch. 1188, § 6, p. 7185.) Section 288, subdivision (a) makes it a felony to “willfully and lewdly commit[] any lewd or lascivious act . . . upon or with the body . . . of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” Defendant pled no contest to seven counts of lewd and lascivious conduct upon a child under the age of 14 years within the meaning of section 288, subdivision (a). Therefore, defendant was entitled to only 53 conduct days, for a total of 411 days of presentence custody credit. We will modify the judgment accordingly. (People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence may be corrected at any time].)
Section 667.5, subdivision (c)(6) now provides: “Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.”
We also find an error in the abstract of judgment requiring correction to reflect the oral pronouncement of judgment.
Under “other orders,” the abstract of judgment states that the court ordered defendant to “comply w/ conditions of probation report pgs. 14-16.” The probation report at those pages reflects a $10,000 restitution fine, a $10,000 restitution fine suspended unless parole is revoked, victim restitution, a $208.43 main jail booking fee, $24.08 main jail classification fee, $702 for the cost of the presentence report, $46 a month for probation supervision and $25 for each urinalysis test. However, the court did not orally order defendant to pay all of those fees and fines. The court did impose the two $10,000 restitution fines, one suspended unless parole is revoked, and reserved jurisdiction over victim restitution. Each of these is separately reflected on the abstract. The court stated that it would not impose the jail booking and classification fees. The probation supervision and drug testing fees are not applicable since defendant was sentenced to prison. Therefore, the abstract must be corrected to delete the statement under “other orders” that defendant must comply with the conditions in the probation report at pages 14 to 16.
In the interest of judicial economy, we have addressed these errors without first requesting supplemental briefing. Any party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified by dismissing the multiple victim allegation and reducing the number of days of conduct credit from 178 to 53 days, for a total of 411 days of presentence custody credit. As amended, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the reduction in presentence custody credits and to delete the phrase “comply w/ conditions of probation report pgs. 14-16” under “other orders,” and is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , J., CANTIL-SAKAUYE , J.