Opinion
H051602
10-30-2024
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE LUA, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1776825
LIE, ACTING P. J.Appellant Enrique Lua appeals from the judgment imposed on resentencing by the trial court. On appeal, Lua's counsel has filed a brief which states the case but raises no issues, under People v. Wende (1979) 25 Cal.3d 436 (Wende). We advised Lua of his right to submit written argument on his own behalf within 30 days and he has not done so. In independently reviewing the record, we find no arguable issues on appeal, only a clerical error to be corrected in the abstract of judgment.
A jury convicted Lua of 23 sexual offenses committed against his girlfriend's daughter and niece, both under the age of 10. The trial court sentenced Lua to a total term of 110 years to life consecutive to a determinate term of two years, staying the punishment for multiple offenses under former Penal Code section 654. On Lua's direct appeal, we reversed and remanded the judgment for the limited purpose of resentencing, directing the trial court to exercise its discretion under the current version of section 654 as amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) and to impose sentences on all convictions, including several convictions where the court did not orally impose a sentence at the sentencing hearing. (People v. Lua (July 15, 2022, H047760) [nonpub. opn.].)
Undesignated statutory references are to the Penal Code.
On remand in November 2023, the trial court resentenced Lua. At the resentencing hearing, the trial court exercised its discretion under section 654 to reimpose the original sentence of 110 years to life, consecutive to two years: two consecutive terms of 25 years to life for sexual intercourse with a child 10 years or younger (§ 288.7, subd. (a); counts 5 &6), four consecutive terms of 15 years to life for aggravated sexual assault of a child under 14 (§ 269; counts 13, 14, 22 &23), and two years for sending harmful material to a minor (§ 288.2, subd. (a); count 17). The trial court also imposed but stayed terms of 15 years to life for each of the remaining counts: six counts of oral copulation with a child 10 years old or younger (§ 288.7, subd. (b); counts 7-10, 20 &21), four counts of aggravated sexual assault of a child under 14 (§ 269, counts 11, 12, 15 &16), and six counts of lewd and lascivious acts on a child by force (§ 288, subd. (b)(1); counts 1-4, 18 &19). Under People v. Duenas (2019) 30 Cal.App.5th 1157, the trial court found that Lua did not have the ability to pay his fines and fees and stayed a $300 restitution fine, imposed and stayed another $300 parole revocation restitution fine, and waived other fines and fees.
Having independently reviewed the record, we find no arguable issues. (Wende, supra, 25 Cal.3d 436, 441-442.) We have, however, found a clerical error in the abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in an abstract of judgment at any time].) Lua was convicted of count 7, a violation of section 288.7, subdivision (b), oral copulation of a child 10 years or younger. But the abstract of judgment erroneously identifies count 7 as a violation of section 288.7, subdivision (a), sexual intercourse with a child 10 years or younger.
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that the conviction for count 7 was for a violation of Penal Code section 288.7, subdivision (b). A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: WILSON,J., BROMBERG, J.