Opinion
C041809.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH VICTOR TYRANOWSKI, Defendant and Appellant.
In exchange for the dismissal of other counts and allegations, defendant Joseph Victor Tyranowski entered negotiated pleas of guilty to committing assault with a firearm (Pen. Code, § 245, subd. (a)(2); further section references are to this code; count 4), dissuading a witness (§ 136.1, subd. (b)(1); count 6) and inflicting corporal injury upon a spouse (§ 273.5, subd. (a); count 9), and he admitted personally using a firearm (§ 12022.5, subds. (a), (d)) and a knife (§ 12022, subd. (b)(1)) in connection with counts 4 and 6, respectively.
Defendant was sentenced to state prison for an aggregate term of 12 years (the middle term of three years on count 4, plus the middle term of four years for the gun-use enhancement; a full, consecutive middle term of "three" years on count 6, plus one year for the knife-use enhancement; and a consecutive term of one year (one-third the middle term) on count 9).
Having obtained a certificate of probable cause (§ 1237.5), defendant appeals. He contends (1) the trial court imposed an unauthorized sentence on count 6, dissuading a witness, in that the middle term for violation of section 136.1, subdivision (b)(1) is two years, (2) his trial counsel was ineffective in failing to object to the unauthorized sentence, and (3) the abstract of judgment must be corrected to conform to the oral pronouncement of judgment in that the court did not order AIDS testing pursuant to section 1202.1, and such an order would be unauthorized in any event.
The People concede that the judgment must be modified to impose a middle term of two years for count 6 and the abstract of judgment should be corrected to delete the order for AIDS testing. We accept the concessions.
Count 6 charged defendant with dissuading a witness in violation of section 136.1, subdivision (b)(1). The court asked: "In count [6], 136.1, [subdivision] (b)(1), dissuading a witness how do you plead?" (Emphasis added.) Defendant answered "guilty." However, the written change of plea form endorsed by defendant mistakenly described count 6 as a violation of section 136.1, subdivision (c). Although the body of the probation report correctly recounted that defendant was charged with and pled guilty to a violation of section 136.1, subdivision (b)(1), the summary on the first page of the probation report incorrectly listed the offense as a violation of section 136.1, subdivision (c) with a range of punishment of two, three, or four years. The court followed the recommendation of the probation report and incorrectly imposed a middle term of three years for count 6. Defense counsel did not object.
Because the range of punishment for violation of section 136.1, subdivision (b)(1), is 16 months, two years or three years (§ 18), we will modify the judgment to impose a full, consecutive middle term of two years for count 6.
The abstract of judgment reflects that the trial court ordered defendant to submit to AIDS testing (§ 1202.1). But no such order was imposed by the court during oral pronouncement of judgment. (People v. Rowland (1988) 206 Cal.App.3d 119, 123-124 [an abstract of judgment that is inconsistent with the oral pronouncement of judgment must be corrected]; see People v. Smith (1983) 33 Cal.3d 596, 599.) Indeed, such an order could not have been imposed because defendants offenses are not included in the list of crimes set forth in section 1202.1 for which AIDS testing is required. (People v. Guardado (1995) 40 Cal.App.4th 757, 763-764 [involuntary AIDS testing is limited to crimes specified in section 1202.1].) We will direct the trial court to so correct the abstract of judgment.
We also have found another error in the abstract of judgment that must be corrected. The enhancement on count 6 was imposed pursuant to section 12022, subdivision (b), rather than section 12022.5, subdivision (a), as listed in the abstract.
DISPOSITION
The judgment is modified to impose a full, consecutive middle term of two years for the violation of section 136.1, subdivision (b)(1). As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification, to delete the order for AIDS testing, and to state that the enhancement in connection with count 6 was imposed pursuant to section 12022, subdivision (b). The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections.
We concur: RAYE, J. and MORRISON, J.