Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Carlos A. Cabrera, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Eldridge and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Kane, J., and Poochigian, J.
A jury convicted appellant, Abelardo Cristobal, of aggravated sexual assault of a child by rape (Pen. Code, § 269, subd. (a)(1); count 1), sexual intercourse with a child under the age of 10 (§ 288.7, subd. (a); count 2), and committing a forcible lewd or lascivious act against a child under the age of 14 (§ 288, subd. (b)(1); count 3). The court imposed a prison term of 25 years to life on count 2. On counts 1 and 3, the court imposed, and stayed pursuant to section 654, terms of 15 years to life and six years, respectively.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant contends: (1) the chain of custody of a reference sample of deoxyribonucleic acid (DNA) was inadequate and therefore, the court erred in admitting into evidence the testimony of a police criminalist regarding a comparison of the reference sample and DNA found on the victim; (2) if this claim is deemed waived because defense counsel failed to object to this evidence on chain-of-custody grounds below, such failure constitutes constitutionally ineffective assistance of counsel; and (3) the abstract of judgment and sentencing minute order do not accurately reflect the judgment as pronounced by the court and must be amended. We will find merit in the last of these arguments, direct the trial court to correct the errors, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Fact of the Instant Offenses
Appellant is the father of B.C. (B.) and N.C. (N.). In 2008, at the time of the events described here, when B. was nine years old and N. was 10 years old, the two girls were living in an apartment with their mother, aunt, uncle, two cousins and two other siblings. Appellant did not live there.
B. was the victim of the instant offenses. The jury acquitted appellant of charges of violating sections 269, subdivision (a)(1), 288.7, subdivision (a), and 288, subdivision (b)(1) in which the alleged victim was N. Our factual summary is limited to the prosecution case against appellant as to the instant offenses.
B. testified to the following: One day appellant was at the apartment. On that day, while appellant and B. were alone in the apartment, appellant asked B. to give him a massage. The two were in a room and the door was closed. Appellant told B. to take off her clothes. B. got partially undressed, and appellant “grabbed” her, “put [her] on the ground, ” removed her shirt, pants and underwear, removed his clothes, “got on top of [B.], ” put his penis in her vagina, and told her he would kill her if she screamed. B. felt something sticky. Appellant stopped when he saw through the window that N. was returning to the apartment. He handed B. a napkin and told her to “clean [herself].” She did so. At that point, appellant and B. got dressed.
B. further testified to the following: After she got dressed, N. arrived at the apartment. The two girls then began walking to the laundromat, where their mother was. B. was crying and N. asked her what was wrong. B. told her what appellant had done, and later told her mother. B.’s mother told her and N. to call the police. They did so.
DNA Evidence and Relevant Procedural Background
City of Fresno Police Department (FPD) crime scene technician Virginia Cavazos testified to the following: On June 10, 2008, FPD Detective Alfred Lopez brought a person to the FPD Crimes Scene Bureau (CSB) where Cavazos worked and directed Cavazos to obtain from this person a DNA reference sample. Cavazos did so, by an established procedure referred to as “taking... buccal swab[s], ” which consists of rubbing the inside of the cheeks of the subject with a long cotton-tip swab. Cavazos received training in this procedure from the California Department of Justice (DOJ). On direct examination, Cavazos initially testified that she “recognized” appellant as the person from whom she took the buccal swabs, and identified him in the courtroom as that person by pointing to him.
On cross-examination, however, she admitted she had no independent recollection of taking buccal swabs from appellant. She testified that she identified him “[j]ust because of the name.” Defense counsel then asked her: “you’re just doing that [identifying appellant] because you’re here on this case and you assume this is the person you took the buccal swab from?” She answered: “Right, yes, according to the name.”
On redirect examination, over appellant’s hearsay objection, she testified that Detective Lopez brought a person to the CSB, told her the person’s name was Abelardo Cristobal, and directed her to take a buccal swab from that person.
Shortly thereafter, the court granted a defense motion to strike Cavazos’s in-court identification of appellant.
Cavazos further testified to the following: After she took the buccal swabs, she put them in an envelope, which she placed in the “secure evidence processing room” to allow the sample to dry. Thereafter, she created a label for the envelope on which she wrote the case number and the “contents that are inside the envelope, ” and “booked [the sample] into the refrigerator.” The refrigerator was locked, and only crime scene technicians and “property technicians” had access to the keys. Subsequently, “property room” personnel “obtain[ed]” the sample and “sign[ed] it out to [Cavazos], ” who then transported it by van to the “crime lab” maintained by the DOJ on the campus of California State University at Fresno, and took the sample “straight” to the lab where crime lab personnel “receive[d] it.”
Registered nurse Regina Wells testified to the following: She had been trained in the collection of forensic evidence during examinations of persons believed to be the victims of sexual assaults. On March 2, 2008, B. was examined by physicians at Community Regional Medical Center (CRMC). During this examination, in which she participated, Wells, using a Q-tip swab, took samples of bodily fluids from various parts of B.’s body. Her normal practice is then to label each swab with information including the patient’s name and police department case number; place each swab in a separate cardboard box; place each individual box into a larger box called the “sexual assault kit”; and place that box in the “evidence locker.” Thereafter, “someone from a police agency... usually” comes to “pick that up.”
City of Fresno Police Officer Michael Olin testified to the following: On March 3, 2008, he went to CRMC, picked up the sexual assault kit prepared in the instant case, and transported it to the FPD headquarters evidence room where he booked it into evidence. At CRMC he picked up the kit from “somebody by the name of Amy Clark.”
Defense counsel, noting that “we have another expert who is going to come in and testify, ” objected that there was “a break in the chain [of custody] because Olin said he got [the sexual assault kit] from somebody by the name of Clark” and not from Regina Wells. The court “rule[d] that as far as that possible weaknesses in the chain of possession will go to the weight not to the admissibility.”
Subsequently, Scott Lewis testified to the following: He is a “DNA analyst, ” employed by the DOJ. He compared DNA from sperm cells found on a thigh swab contained in the sexual assault kit with DNA found on the “reference sample[]... from the suspect in the case.” He opined that the DNA from the thigh swab was “a match for the [reference sample].”
Motion for a New Trial
Appellant filed a notice of motion for a new trial and, in the accompanying memorandum of points and authorities, argued as follows: Because Cavazos’s identification of appellant was stricken, the record contains no identification of appellant as the person from whom the buccal swabs were taken. Further, Detective Lopez’s testimony did not provide the necessary identification of appellant, nor did the detective testify as to the collection and transport of buccal swabs for testing. Therefore, “there was insufficient foundation to allow for the admission of the DNA evidence.”
In denying the motion, the court stated, inter alia, as follows: “Well, the Court dealt with this issue during the trial of the identification of the defendant by the person who allegedly took the swabs from him, and whether there was sufficient evidence for a proper foundation for the introduction of the DNA results, the Court ruled at that time that although there was, short of perfect foundation, nevertheless, the Court ruled that there was sufficient evidence for a foundation in that it would be to the weight and not to the admissibility of the evidence of the DNA.”
DISCUSSION
Chain of Custody/Foundation
Appellant contends the trial court should have excluded the testimony of DNA analyst Lewis regarding his comparison of DNA in the reference sample purportedly taken from appellant and DNA found on the victim because the “foundation and/or chain of custody” of the reference sample was inadequate. The People argue that appellant has forfeited this contention by failing to challenge the adequacy of the chain of custody of the reference sample below, and that even if there was no forfeiture, the chain of custody was adequate and the trial court properly admitted the evidence.
We find the People are correct on both counts.
Forfeiture
A conviction may not be reversed on grounds of improper admission of evidence unless the party raising such a claim interposed a timely objection or motion to strike, “so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).) The California Supreme Court has “‘“consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.”’ [Citation.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) “‘Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence.’ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 424.) To be sufficiently specific, the objection must “fairly apprise[ ] the trial court of the issue it is being called upon to decide.” (People v. Scott (1978) 21 Cal.3d 284, 290.)
Here, the record shows that although appellant argued below that the prosecution had not established the adequacy of the chain of custody of the swabs containing DNA taken from the victim, at no time did he object on chain-of-custody or foundation grounds to the reference sample evidence, or the DNA analyst’s comparison of that evidence to the DNA evidence obtained from the victim. He did object on hearsay grounds (Evid. Code, § 1200) to Cavazos’s testimony that she learned from Detective Lopez that the name of the man he brought to the CSB, and from whom he directed that she take buccal swabs, was Abelardo Cristobal, but appellant did not make an objection below on the grounds he asserts on appeal.
In his motion for new trial, appellant did raise the chain-of-custody challenge to the admissibility of the reference sample that he now raises on appeal. In ruling on the motion, the trial court said it had “dealt with” Cavazos’s in-court identification of appellant as the person from whom she took buccal swabs, and the issue of “whether there was sufficient evidence for a proper foundation for the introduction of the DNA results, ” and that it had ruled at trial that “although there was, short of perfect foundation, nevertheless, ... there was sufficient evidence for a foundation in that it would be to the weight and not to the admissibility of the evidence of the DNA.” Based on these statements by the trial court, appellant argues that “the trial court recollected discussion of the issue and it must be inferred that defense counsel made an objection that ‘fairly inform[ed] the trial court, as well as the party offering the evidence... so the party offering the evidence [could] respond appropriately and the court [could] make a fully informed ruling.’ [Citation.]” We disagree.
At trial, it was DNA evidence obtained from the victim by Nurse Wells, not the reference sample obtained by Cavazos, that the court, addressing the defense chain-of-custody objection, found admissible despite the “short of perfect” foundation. It appears that the court, in ruling on the new trial motion, incorrectly recollected this. Contrary to appellant’s argument, at trial the court did not address the argument that the chain of custody of the reference sample was inadequate. We infer from the court’s remarks not that the court believed at the time it ruled on the hearsay objection to Cavazos’s testimony that it was addressing the chain-of-custody issue appellant now raises, but that the court, in ruling on the new trial motion, simply confused its ruling at trial on the issue of the chain of custody of the DNA specimen taken from the victim with its ruling on the hearsay objection to Cavazos’s testimony.
In any event, whatever the court might have thought when it addressed the hearsay objection, that objection did not put the prosecutor on notice that appellant was raising the chain-of-custody issue he now raises on appeal. We reiterate that the objection was on hearsay, not chain-of-custody grounds. Moreover, as discussed more fully below, appellant’s chain-of-custody argument is based on not only the question of whether appellant was the person from whom Cavazos took the sample, but on the handling of the sample after it was obtained. Nothing in the hearsay objection to Cavazos’s testimony could have alerted the prosecutor to these additional bases for arguing the chain of custody was inadequate. On this record, appellant’s objection at trial to Cavazos’s testimony was insufficient to enable the prosecution to cure any chain-of-custody defect in the reference sample evidence, and it did not fairly apprise the court of the chain-of-custody issue he now raises on appeal. Appellant has thus forfeited his right to raise that issue in the instant appeal.
Chain of Custody
Appellant’s claim also fails on the merits.
“In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” [Citations.]’” (People v. Catlin (2001) 26 Cal.4th 81, 134.) “‘While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering’....” (Ibid.) “[I]t is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.... [Not] everyone who laid hands on the evidence must be called.... ‘[G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.’” (Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 2532, fn. 1].)
Appellant first argues that the prosecution did not meet its burden of establishing the chain of custody of the reference sample because Cavazos’s inability to independently recall taking buccal swabs from appellant “rendered it questionable” whether she took the swabs from appellant rather than some other person. He further argues that the handling of the reference sample after it was taken casts doubt on the adequacy of the chain of custody. Specifically, in this regard, appellant argues as follows: although Cavazos testified she put the buccal swabs in an envelope in the evidence processing room to allow them to dry, “[t]he record did not reflect how the swabs were segregated, or distinguished, from other swabs in the room, or the exact protocols governing admission to the room and removal of samples”; it was not until after the swabs were dried that they were sealed in the envelope; and although Cavazos testified she transported the swabs to the DOJ crime lab, she “did not produce any paper trail by which her transfer of custody of the swabs to DOJ was accomplished.” Appellant also argues that Detective Lopez did not “provide the necessary links in the chain” because he did not add to the account of how the swabs were transported and delivered to the crime lab and he “did not identify appellant and did not state that he escorted the person he knew to be appellant to Cavazos and/or watched her take the buccal swabs from such person.” Appellant relies on People v. Jimenez (2008) 165 Cal.App.4th 75 (Jimenez) to support his argument that the chain of custody is inadequate.
The defendant in Jimenez was convicted of robbing a bank, and the issue was whether the trial court erred in admitting a DNA sample and a criminalist’s testimony. After robbing the bank, a man fled on a bicycle and abandoned it nearby. A criminalist compared the DNA found on the handlebars of the bicycle with a reference sample supposedly taken from the defendant, and gave testimony indicating the probability that anyone but the defendant left the DNA on the bicycle was extremely low.
Two other witnesses—a police sergeant and the chief investigating officer—testified on the issue of the chain of custody of the reference sample. The sergeant testified to the following: in another case three years previously, in accordance with the chief investigating officer’s directive to have DNA swabs taken from the defendant following the defendant’s arrest, he “made arrangements with an identification bureau technician (technician) to do so....” (Jimenez, supra, 165 Cal.App.4th at p. 79.) In addition: “[The sergeant] testified—conclusorily—that [the technician] did so. The sergeant testified ambiguously that either he or the chief investigating officer—he did not specify who—gave instructions to someone—he did not specify to whom—for the swabs to be sent to DOJ. The sergeant testified—conditionally—that the swabs ‘would have been properly labeled.’ He did not testify at all about the basis—whether personal observation, hearsay, or conjecture the record is silent—of his testimony that [the technician] took the swabs.” (Ibid.) The technician, who had been released from her subpoena by the prosecutor, never testified, and “the sergeant did not testify that the technician preserved and labeled the specimen, did not testify that the technician was directed to send the sample to DOJ, did not testify that the technician or anyone else ever sent the sample to DOJ, and did not testify that the technician processed, labeled, or stored the sample.” (Id. at pp. 79-80.)
“The chief investigating officer testified that he requested DOJ comparison of the handlebar swabs with the cheek swabs and, over Jimenez’s foundational objections, that he received a report showing that the comparison ‘had occurred.’ Though abundantly clear about his own request, the chief investigating officer’s testimony was conspicuously silent about the evidence on which the accuracy of the DOJ report was completely dependent. [¶] Over Jimenez’s foundational objections, the DOJ criminalist testified that he received from the police department two properly packaged and preserved swabs with paperwork that referred to Jimenez and that showed the submitting party was a detective who did not testify at trial[] [and] the recorded booking officer was the technician who did not testify at trial....” (Jimenez, supra, 165 Cal.App.4th at p. 80.)
The Jimenez court held: “The woefully inadequate chain of custody here raises grave concerns about whether the reference sample with which the criminalist compared the handlebar swabs came from Jimenez’s cheek or from some altogether different source with no connection to him at all. [¶]... [¶] Here, the chain of custody amounts to nothing more than a link here, a link there, with little more than speculation to connect the links into a chain. The requisite showing of a reasonable certainty that there was no substitution is but a chimera. Serious questions arise about what, if anything, the reference sample has to do with Jimenez.” (Jimenez, supra, 165 Cal.App.4th at p. 81.)
Jimenez is inapposite. As noted, in that case the technician who supposedly obtained the reference sample did not testify; the police sergeant testified “conclusorily” that the technician took the swabs but he did not testify as to how he knew she did so; and the sergeant also did not testify as to the processing of the sample, or whether the technician, or anyone else, transported the sample to the DOJ. Thus, the record contained virtually no evidence as to the processing and transportation of the sample. Here, by contrast, Cavazos testified to the step-by-step process by which she herself took the buccal swabs, placed them in an envelope, placed the envelope in a secure evidence processing room in order to allow the samples to dry, created a label indicating the case number and contents of the envelope, affixed the label to the envelope, placed the envelope containing the sample in a locked refrigerator to which only CSB personnel had access, received the envelope from CSB personnel who had removed it from the refrigerator, transported the packaged sample to the DOJ lab by van, took the sample straight to the lab, and handed it over to lab personnel.
The chain of custody reflected here is not perfect; there are what might be termed gaps. As appellant notes, the record does not reflect whether other samples were present in the processing room where the swabs were placed for drying before they were sealed in the envelope and labeled, and we have only Cavazos’s testimony, and not a “paper trail, ” indicating how the transfer of the swabs from Cavazos to the DOJ lab was accomplished. Nonetheless, unlike in Jimenez where the only evidence provided regarding the processing and transportation of the sample was conclusory and ambiguous, the sequence of events to which Cavazos testified here “‘connect[s] the evidence with the case and raise[s] no serious questions of tampering’....” (People v. Catlin, supra, 26 Cal.4th at p. 134.) Moreover, Cavazos’s testimony that Detective Lopez told her that the name of the person from whom he directed her to take the swabs was Abelardo Cristobal was sufficient to establish that the person was appellant. On this record, the chain of custody of the reference sample is adequately established.
Ineffective Assistance of Counsel
Appellant also argues that if his challenge to the adequacy of the chain of custody of the reference sample has been forfeited by defense counsel’s failure to interpose an adequate objection below, such failure deprived appellant of his constitutional right to the effective assistance of counsel. We disagree.
“To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced. [Citation.] Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different.” (People v. Cash (2002) 28 Cal.4th 703, 734.)
“Defendant’s burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel’s act or omission.” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.) “‘In some cases, ... the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.’ [Citation.]” (People v. Avena (1996) 13 Cal.4th 394, 418-419.) “The decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent.” (People v. Lucas (1995) 12 Cal.4th 415, 444 (Lucas).)
Appellant’s claim of ineffective assistance of counsel fails because, as demonstrated above, the prosecution had met its burden of establishing chain of custody, and therefore, counsel’s failure to interpose a chain-of-custody objection to the reference sample and the DNA analyst’s comparison of that sample to the specimen of DNA taken during the examination of the victim, was not objectively unreasonable. For the same reason, it is not reasonably likely that the trial court would have sustained such an objection and, therefore, appellant has not made the necessary showing of prejudice.
In addition, the instant case is not one in which there simply could be no satisfactory explanation for defense counsel’s failure to object because, as the court in Lucas stated, in rejecting a claim that counsel was ineffective for failing to object to the chain of custody of a piece of physical evidence, “an objection on chain of custody grounds may be less productive for defendant than a decision to permit the prosecutor to establish a shoddy chain of custody that can be pointed out to the jury in the hope of giving rise to a reasonable doubt.” (Lucas, supra, 12 Cal.4th at p. 446.) Indeed, defense counsel took precisely this tack, arguing to the jury that Cavazos had no independent recollection that appellant was the person from whom she took the buccal swabs and that when she identified him she “just assumed because [she was] here testifying for the case that that’s the guy that [she] took a buccal swab from.” Appellant has not met his burden of establishing ineffective assistance of counsel.
Abstract of Judgment
As noted, the court imposed indeterminate terms—15 years to life and 25 years to life—on counts 1 and 2, respectively, and a determinate term of six years on count 3. However, the trial court issued a single abstract of judgment, utilizing Judicial Council form CR-292, the abstract of judgment form designed to indicate the indeterminate term(s) imposed by a sentencing court. The parties agree that the abstract of judgment does not accurately reflect the judgment as pronounced by the court in two respects, and that abstract must be corrected. We agree.
First, in section No. 1 of the abstract, the section designated for listing offenses of which the defendant was convicted and for which indeterminate terms were imposed, the count 2 offense—sexual intercourse with a child under the age of 10 (§ 288.7, subd. (a))—is not listed. Second, although appellant stands convicted in count 1 of a violation of section 269, subdivision (a)(1), the section number of the count 1 offense is incorrectly designated in section No. 1 of the abstract as section 261, subdivision (a)(2). We will order that an amended abstract of judgment, utilizing form CR-292, be prepared correcting these errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell) [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment].)
In addition, we note the following: although section No. 1 of CR-292 is the portion of the form designated for listing offenses of which the defendant has been convicted and for which indeterminate terms have been imposed, the count 3 offense, for which appellant received a determinate term, is listed there; box No. 7, indicating that one or more additional determinate terms was imposed is not checked; and the record on appeal does not contain an abstract of judgment on Judicial Council form CR-290, the form for indicating determinate terms. We will further order that in the amended abstract of judgment for indeterminate terms, on form CR-292, that the trial court not list the count 3 offense in section 1, and that the court mark box No. 7 and prepare an additional abstract of judgment, utilizing Judicial Council form CR-290, the form designed for indicating determinate terms, indicating the term imposed, and stayed pursuant to section 654, on the count 3 offense. (Mitchell, supra, 26 Cal.4th at p. 185.)
Sentencing Minute Order
Appellant argues, and the People do not dispute, that the sentencing minute order is incorrect in two respects. First, appellant argues the order incorrectly states that appellant was convicted in count 1 of violating section 261, subdivision (a)(2) when, as noted, the count 1 offense was a violation of section 269, subdivision (a)(1). We agree, and will order that the minute order be amended accordingly. (Cf. Mitchell, supra, 26 Cal.4th at p. 185.)
The minute order contains two incorrect references to section 261, subdivision (a)(2)): first, in the list of offenses, by count, near the beginning of the order, and second, in item No. 11, where the minute order states that appellant was convicted of “the additional charge of 261(a)(2) PC in count 1....”
Second, the minute order states, “Sentence imposed [on count 1] to be served concurrent to count 2.” (Italics added.) It is correct to say sentence was imposed on count 2. (People v. Duff (2010) 50 Cal.4th 787, 796 [“when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence”].) However, by definition, a sentence that is stayed is not being served. The minute order should be amended to remove the reference to the sentence being served. (Cf. Mitchell, supra, 26 Cal.4th at p. 185.)
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment indicating the indeterminate terms (CR-292) which: in section No. 1, correctly identifies the count 1 offense as a violation of Penal Code section 269, subdivision (a)(1); in section No. 1, lists the count 2 offense, sexual intercourse with a child under the age of 10, in violation of Penal Code section 288.7, subdivision (a); does not list in section No. 1 the count 3 offense—a violation of Penal Code section 288, subdivision (b)(1), for which a determinate term was imposed; and indicates, in box No. 7, that an additional determinate term was imposed.
The trial court is further directed to prepare an abstract of judgment for determinate terms (CR-290) indicating the determinate term imposed, and stayed, pursuant to Penal Code section 654, on count 3.
The court is further directed to forward certified copies of the amended abstract of judgment for indeterminate terms (CR-292) and the abstract of judgment for determinate terms (CR-290) to the Department of Corrections and Rehabilitation.
The court is further directed to prepare an amended sentencing minute order which indicates that appellant was convicted in count 1 of violating section 269, subdivision (a)(1) and which omits the statement that the court ordered the sentence imposed on count 1 to be served.
In all other respects, the judgment is affirmed.