P. v. Murguia
Filed 12/10/08 P. v. Murguia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LOZANO MURGUIA, Defendant and Appellant. | E045221 (Super.Ct.No. SWF012921) OPINION |
APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Affirmed with directions
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General for Plaintiff and Respondent.
Defendant entered guilty pleas to various counts but contends on appeal that the trial court erred in imposing the middle term sentences with respect to some of those counts. The People concede that the abstract of judgment should be corrected. We affirm the judgment but order that the abstract of judgment be corrected.
I
FACTS
Defendant was charged with two counts of committing a lewd and lascivious act on a child under 14 years of age (Pen. Code, 288, subd. (a))[1](counts 1 & 2); two counts of an attempted lewd and lascivious act ( 664, 288, subd. (a)) (counts 3 & 4); and two counts of sending, exhibiting or offering to exhibit harmful matter with the intent of seducing a minor ( 288.2, subd. (a)) (counts 5 & 6).
Defendant pleaded guilty to all counts in exchange for an indicated sentence of a six-year lid. In pronouncing sentence, the court selected count 1 as the principal term and imposed the midterm of six years. It imposed the midterm of six years on count 2, to run concurrently. With respect to the remaining counts, the court stated, [T]he midterm concurrent, three years, for count 3Im sorry. [] Count 3 is midtermno. Count 3two is what it should beno, midterm. The midterm on count 3, the midterm on count 4, the midterm on count 5, and the midterm on count 6. All will be imposed concurrently. The term to state prison therefore is six years.
The minute order from this hearing, as well as the abstract of judgment, reflect that a midterm of six years was imposed as to counts 3, 4, 5, and 6.
II
DISCUSSION
Defendant contends the sentences imposed on counts 3, 4, 5, and 6 are unauthorized because six years is not the middle term provided by statute for those offenses. He asserts that the matter must be remanded so that the trial court can reconsider the entire sentence.
The People agree that six years is not the middle term for the offenses alleged in counts 3, 4, 5, and 6. Convictions for attempted lewd and lascivious acts on a child under 14 years of age, which are alleged in counts 3 and 4, have a middle term of three years. Two years is the middle term for offenses stated in counts 5 and 6, i.e., convictions for sending, exhibiting or offering to exhibit with the intent of seducing a minor.
The People argue, however, that remand for resentencing is unwarranted because the errors are merely errors in the sentencing minute order and abstract of judgment that can be remedied by directing the superior court to modify these documents to reflect the appropriate middle term sentences on these counts. Although the sentencing courts statement is somewhat confusing and indicated some uncertainty between two and three years as the middle term for count 3, it ultimately pronounced sentences on counts 3 through 6 simply by imposing the middle terms rather than specifying the length of each term. It concluded by stating the total sentence was six years.
A remand for a full resentencing is appropriate whenever the trial court can exercise its sentencing discretion in light of changed circumstances. (People v. Navarro (2007) 40 Cal.4th 668, 681; People v. Burbine (2003) 106 Cal.App.4th 1250, 12581259.) In Navarro, for instance, the defendants conviction for attempted kidnapping was stricken so that resentencing was warranted due to the changed circumstances. (Navarro, at p. 681.) No such changed circumstances exist in this case merely to correct mistakes in recording the sentence. Accordingly, a remand for resentencing is not necessary.
III
DISPOSITION
The superior court clerk is directed to correct the abstract of judgment to reflect the correct middle term sentences of three years for counts 3 and 4, and two years for counts 5 and 6, and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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[1]Statutory references are to the Penal Code unless otherwise stated.
