Opinion
E072960
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. LUCERO DIEGO, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF146164) OPINION APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge. Affirmed with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On November 18, 2010, defendant and appellant Lucero Diego was convicted of second degree murder under Penal Code section 187, subdivision (a) (count 1); assault on a child with injury or death under Penal Code section 273ab (count 2); and willful child cruelty under Penal Code section 273a, subdivision (a) (count 3). On March 11, 2011, the trial court sentenced defendant to 25 years to life on count 2; 15 years to life on count 2, stayed under section 654; and six years on count 3, to run consecutive. As to count 3, the court also imposed a five-year term as to the great bodily injury enhancement under Penal Code sections 12022.7, subdivision (d), and 1192.7, subdivision (c), to run consecutive.
On February 6, 2013, in an unpublished opinion, we affirmed the defendant's convictions but ordered corrections to the abstract of judgment, as follows: "The trial court is directed to correct the abstract of judgment to reflect the concurrent determinate term imposed during the trial court's oral pronouncement of sentence." (People v. Diego (Feb. 6, 2013, E053553) [2013 Cal.App.Unpub. LEXIS 960 *10.)
On March 15, 2019, defendant, in propria persona, filed a petition for resentencing under Penal Code section 1170.95. On March 22, 2019, the Riverside County Public Defender's Office filed a notice of declaration of conflict of interest. On April 24, 2019, the People filed a response.
On May 24, 2019, the trial court appointed counsel to represent defendant. Thereafter, the court denied defendant's Penal Code section 1170.95 petition, referring to the prior unpublished opinion filed in this case and stated, "According to that opinion, [s]he confessed, and [s]he was the actual killer of [her] two month old son."
On June 11, 2019, defendant filed a timely notice of appeal.
The facts are taken from our unpublished opinion in People v. Diego, supra, E053553. --------
On September 19, 2008, at 8:00 a.m., emergency personnel went to a home after a 911 caller reported that a two-month-old baby, defendant's son, was not breathing. The baby was declared dead later that morning at the hospital. During an interview with law enforcement, defendant admitted that, on the morning of the baby's death, she had become frustrated with his crying. Defendant stated that she shook the baby violently and then smothered him by placing him face down on a pillow. Defendant admitted that she intended to just "end it."
DISCUSSION
After defendant appealed, and upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 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. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: Was it prejudicial error to deny the petition under Penal Code section 1170.95 on the merits without defendant being personally present or having waived her right to be present for a hearing on the merits?
Moreover, on August 15, 2019, defense counsel wrote a letter to the trial court "because I believe there is a clerical error on the abstract of judgment which was prepared in June, 2019. [¶] For reasons that are unclear, for the first time, that abstract of judgment refers to count 3 as 'willful child cruelty.' [Defendant] was actually convicted of 'child abuse likely to produce great bodily injury.' If you compare the current operative abstract of judgment with the prior abstracts in this case the error becomes apparent. The word 'cruelty' is not contained in section 273a, and its use here seems improper." Defense counsel requested that the trial court "order an amended abstract of judgment be prepared to correct this clerical error." On August 27, 2019, the clerk of the trial court filed a clerk's certificate indicating that counsel's request was reviewed by the trial court and the "Court took no action."
We offered defendant an opportunity to file a personal supplemental brief, but she has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, and considered the issues brought forth by appellate counsel.
As to the alleged clerical error raised in the August 15, 2019, letter, we note that there are inconsistencies between the minute order from the November 14, 2013, hearing, and the abstract of judgment filed on June 17, 2019. The minute order from the November 14, 2013, hearing indicated that the trial court read and considered the remittitur filed on April 24, 2013. And, as directed by this court in our opinion, the trial court then vacated the previously-imposed sentences on count 3 and the great bodily injury enhancement. Thereafter, as to count 3, the court imposed the "UPPER term of 6 year(s)" to run concurrent, not consecutive, to the principal term. However, in the abstract of judgment filed in 2019, only three years were imposed on count 3, instead of the six years imposed by the court. Moreover, although the minute order did not state that the court changed the description of count 3 from "child abuse likely to produce great bodily injury" to "willful child cruelty," the new abstract of judgment changed the title of count 3 to "willful child cruelty." As noted by defense counsel, the original abstract of judgment filed on November 14, 2011, referred to count 3 as "WILLFUL HARM INJUR CHILD," not willful child "cruelty." Moreover, we agree with defense counsel that there is no reference to "cruelty" in Penal Code section 273a. Therefore, we will direct the trial court to correct the abstract of judgment to refer to count 3 as "willful harm injury child," and to impose six years, to run concurrent, on count 3. As to the other issue raised by counsel, we find no arguable issue for reversal on appeal.
DISPOSITION
The trial court is directed to correct the abstract of judgment to refer to count 3 as "willful harm injury child" and impose a six-year concurrent term on count 3. The trial court is further directed 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
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.