Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCTM-CRCR-08-85956
Ruvolo, P. J.
Appellant seduced the 15-year-old daughter of family friends with whom he was living. He pled guilty to one count of statutory rape. On appeal, he contends that the trial judge erred by sentencing him to four years in state prison, instead of the three years he understood he would receive if his guilty plea were not withdrawn. Respondent agrees with appellant’s contention. We modify the judgment to reduce appellant’s state prison sentence to three years.
FACTS AND PROCEDURAL BACKGROUND
Because this appeal stems from a guilty plea, we draw the facts from the probation report. Briefly, appellant was friends with the victim’s father for many years, and knew the victim all her life. As of 2008, appellant, then 28 years old, had been living with the victim’s family for several years.
All further references to dates are to the year 2008.
In April, shortly after the victim turned 15, appellant persuaded her to start having consensual sexual intercourse with him by telling her that he loved her. The relationship continued until the victim’s parents found out about it in late July.
On August 15, a complaint was filed charging appellant with six counts of unlawful intercourse by a person over 21 years old with a minor under 16 years old (Pen. Code, § 261.5, subd. (d) ), and six counts of lewd or lascivious acts with a child of 14 or 15 years (§ 288, subd. (c)(1)). On August 25, appellant agreed to plead guilty to the first count of unlawful intercourse, with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 758) as to the remaining counts, as part of a plea agreement which provided that appellant would not be sent to state prison.
All further statutory references are to the Penal Code.
The trial court received the probation report on September 29. The probation officer recommended a three-year prison sentence (the middle term), based on the damaging emotional impact of appellant’s crimes on the victim and her family. After reviewing the probation report, the trial judge indicated that he was inclined to accept the probation officer’s recommended sentence, and that he would therefore offer appellant the opportunity to withdraw his plea, which had been entered on the understanding that appellant would not be sent to state prison.
After conferring with his counsel, appellant decided to let his guilty plea stand, despite the judge’s indication that he would impose a three-year prison sentence. Appellant’s counsel proceeded to argue that his client should receive the lower term sentence of two years; the prosecutor advocated an upper term sentence. The judge then permitted the victim and her stepmother to address the court. The stepmother also read a letter from the victim’s father. Both the victim and her stepmother urged the judge to impose the maximum possible sentence.
The judge sentenced appellant to the upper term of 48 months in state prison. Appellant’s trial counsel objected to the imposition of the upper term, to no avail. This timely appeal ensued.
DISCUSSION
Appellant contends that the trial court erred in sentencing him to the upper term of 48 months in state prison, because appellant decided not to withdraw his guilty plea on the understanding that the court would accept the probation report’s recommendation of the middle term of 36 months. Respondent agrees that this was error, citing People v. Nguyen (1993) 13 Cal.App.4th 114, 120.
We appreciate respondent’s candor, and concur with the parties’ assessment that the imposition of the upper term sentence under these circumstances was error. We also agree that the appropriate remedy is that the judgment must be modified to provide for a middle term prison sentence of 36 months. (See People v. Mancheno (1982) 32 Cal.3d 855, 861.) To conserve judicial resources, we will modify the judgment accordingly rather than remanding for resentencing. (See § 1260; People v. Schueren (1973) 10 Cal.3d 553, 561-562.)
Our disposition moots appellant’s other argument, which challenges his sentence based on the trial court’s failure to state its reasons for imposing the upper term. We therefore do not address this issue.
DISPOSITION
The judgment is modified to impose the middle term of 36 months in state prison rather than the upper term of 48 months. As so modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: Reardon, J., Rivera, J.
A122874, People v. Doyle