P. v. Chavez

















Filed 1/17/13 P. v. Chavez
CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS







California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. FERNANDO BUSTOS CHAVEZ, Defendant and Appellant.

G045400 (Super. Ct. No. 10WF0339) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, John Conley, Judge.
Affirmed as modified.

Martin
Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton, Deputy
Attorney General, for Plaintiff and Respondent.



THE COURT:href="#_ftn1"
name="_ftnref1" title="">*

Appellant
Fernando Bustos Chavez was charged with kidnapping, kidnapping for ransom, two counts of href="http://www.mcmillanlaw.com/">second degree robbery, unlawfully taking a
vehicle, and a “violation of Section 245(a)(1) of the Penal Code
(AGGRAVATED ASSAULT), a FELONY.” href="#_ftn2" name="_ftnref2" title="">[1] According to count four in the amended
information, Chavez “did willfully and unlawfully commit an assault upon the
person of [the victim] by means of force likely to produce great bodily
INJURY.” Prior convictions were also
alleged. Chavez entered a plea of not
guilty.

Chavez
was one of three passengers in a Honda stopped at a stop sign when it was hit
from behind by a car driven by the victim.
The victim, who admitted he had been drinking before the accident,
testified that when he got out of his car, he was surrounded by three males,
one of whom was Chavez. Chavez hit the
victim in the face, injuring him. The
men took the victim to his uncle’s house, where they also assaulted the
uncle. There was no evidence that a
weapon was used.

Following
a trial, the jury returned a guilty verdict on count four for “the crime of
AGGRAVATED ASSAULT- FORCE LIKELY TO PRODUCE GREAT BODILY INJURY a Felony, in
violation of Section 245(a)(1) of the Penal Code of the State of California, as
charged in COUNT 4 of the Amended Information.”

Chavez
was sentenced to a total term of 18 years, including a two-year term on count
four of the amended information.
However, instead of identifying count four as aggravated assault, the
abstract of judgment identifies Chavez’s conviction as “PC 245(a)(1) Assault
with deadly weap[on].”

In the
only issue raised on appeal, Chavez contends the abstract of judgment must be
corrected to reflect that his conviction in count four was for assault by means
of force likely to produce great bodily injury.
The Attorney General concedes the issue, and we agree the abstract of
judgment must be corrected to accurately reflect Chavez’s conviction.

At the
time of the offense in 2009, subdivision (a)(1) of section 245 read, “Any
person who commits an assault upon the person of another with a deadly weapon or
instrument other than a firearm or by any means of force likely to produce
great bodily injury shall be punished by imprisonment in the href="http://www.fearnotlaw.com/">state prison for two, three, or four
years, or in a county jail for not exceeding one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.”

In a
factually similar case involving a conviction for section 245(a)(1), >People v. Delgado (2008) 43 Cal.4th
1059, the court explained that failing to prepare the record with “utmost care
and sensitivity” may have “substantial penal consequences.” (Id.
at p. 1072.) Because assault with a
deadly weapon is a serious felony (§ 1192.7, subd. (c)(11)) and assault by
means of force likely to produce great bodily injury is not, “it is necessary
that the abstract of judgment specify, with scrupulous accuracy, the crime of
which the defendant was actually charged and convicted.” (People
v. Delgado, supra, 43 Cal.4th at
p. 1072.)

Based
on the amended information, the verdict rendered by the jury and signed by the
foreperson, and the fact that no evidence of a weapon was presented during the
trial, it is clear that Chavez’s conviction in this case was for aggravated
assault by means of force likely to produce great bodily injury and not assault
with a deadly weapon as reported in the abstract of judgment.

The
superior court is ordered to correct the abstract of judgment to reflect that
Chavez was convicted of assault by means of force likely to produce great
bodily injury as alleged in count four of the second amended information and
transmit forthwith a certified copy of the corrected abstract of judgment to
the Department of Corrections and
Rehabilitation. As modified, the
judgment is affirmed.