Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025566
NICHOLSON , J.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. 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 of the opening brief. Defendant requested and received two extensions of time within which to file a supplemental brief. We received no supplemental brief or further communication from defendant. Having reviewed the record as required by People v. Wende, supra, we order a clarification to the abstract and affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Defendant and his wife got into an argument on August 29, 2006, during which defendant struck his wife, threw her to the ground, and threatened her. Defendant was intoxicated at the time. Defendant later contacted his wife from jail and threatened her again.
Defendant pled guilty to inflicting corporal injury upon a spouse with a prior conviction for the same. (Pen. Code, § 273.5, subds. (a) & (e)(1).) Charges of battery (§ 243, subd. (e)(1)) and threatening a witness (§ 140, subd. (a)), as well as another pending case, were dismissed as part of the plea agreement.
Further undesignated statutory references are to the Penal Code.
The trial court denied probation and sentenced defendant to the midterm of four years in state prison. The trial court also awarded defendant six days of presentence custody credit, and ordered defendant to pay a $200 restitution fine (§ 1202.4, subd. (b)), another $200 restitution fine suspended unless parole is revoked (§ 1202.45), and a $20 court security fee (§ 1465.8).
Defendant appeals. Defendant did obtain a certificate of probable cause. (§ 1237.5.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. We do, however, order a clarification to the abstract of judgment.
Section 273.5, subdivision (a), provides in pertinent part that the willful infliction upon a former cohabitant of an injury resulting in a traumatic condition is punishable by imprisonment in state prison for two, three, or four years. Section 273.5, subdivision (e)(1), provides in pertinent part that a violation of section 273.5, subdivision (a), is punishable by imprisonment in state prison for two, four, or five years if it occurs within seven years of a previous conviction for violating section 273.5, subdivision (a).
Here, defendant pled guilty to violation of section 273.5, subdivision (a), and admitted that he had a prior conviction for violating that section within the previous seven years within the meaning of section 273.5, subdivision (e)(1). Accordingly, the trial court imposed the midterm of four years, as set forth in section 273.5, subdivision (e)(1).
The abstract of judgment, while properly indicating a midterm of four years, rather confusingly indicates only that defendant was convicted of violating section 273.5, subdivision (a), leaving out any reference to subdivision (e)(1). For clarification, we shall order the abstract of judgment corrected to reflect both subdivisions (a) and (e)(1).
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment indicating that defendant was convicted under both subdivisions (a) and (e)(1) of section 273.5 and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P.J., HULL , J.