Opinion
C083980
01-18-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WILLIAM JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16F6045)
Appointed counsel for defendant Timothy William Johnson asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Our review of the record identified a clerical error in the amended abstract of judgment that must be corrected, but we have found no other arguable error that would result in a disposition more favorable to defendant. Accordingly, we will affirm the judgment.
I
In 2015, defendant was a manager and the victim was an employee at a Del Taco restaurant in Redding. Starting in August of that year, defendant began touching the victim repeatedly even though she kept telling him to stop. He hugged her, kissed her, touched her buttocks, lifted her shirt and bra and touched her breasts with his hands and mouth, and placed his hands on her vaginal area. Many times, he held onto her so she could not get away. The victim contacted the police.
Defendant testified that the victim was flirtatious. He admitted hugging and kissing the victim, giving her back rubs, grabbing her buttocks, and touching and kissing her breasts, but he claimed she never told him to stop and never tried to push him away. He said he was the one who walked away at one point because he was married.
The jury convicted defendant of sexual battery by restraint (Pen. Code, § 243.4, subd. (a)) and misdemeanor battery (§ 242). In a bifurcated proceeding, the trial court found true allegations that defendant had two prior strike convictions. (§ 1170.12.) The trial court struck one of defendant's prior strike convictions, sentenced him to six years in prison, awarded him 525 days of presentence credit (263 actual days and 262 conduct days), and imposed various fines and fees.
Undesignated statutory references are to the Penal Code.
In a footnote in his Wende brief, defendant's appellate counsel explained that the abstract of judgment and minute order following sentencing incorrectly labeled the conviction on count one as a conviction for sexual battery, and that, at the time the brief was filed, counsel had sought correction of these clerical errors in the trial court. Because the amended abstract of judgment and amended minute order correct those errors, we do not address them. --------
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 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 the opening brief. More than 30 days elapsed and we received no communication from defendant.
Our review of the record identified a clerical error in the amended abstract of judgment that must be corrected. If an abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Here, while the amended abstract of judgment correctly reflects that defendant is entitled to 525 days of presentence credit, it incorrectly states he is only entitled to 242 days of conduct credit. The amended abstract must be corrected to reflect that defendant is entitled to 262 days of conduct credit.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court shall prepare a corrected amended abstract of judgment reflecting that defendant is entitled to 262 days of conduct credit, and shall forward a certified copy of the corrected amended abstract of judgment to the Department of Corrections and Rehabilitation.
MAURO, J. We concur: BLEASE, Acting P. J. MURRAY, J.