P. v. Terrill
Filed 5/2/13 P. v. Terrill
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOHN ERVIN TERRILL,
Defendant
and Appellant.
E057058
(Super.Ct.No.
RIF1104084)
OPINION
APPEAL from the Superior Court of
County. Michael S.
Hider, Judge. (Retired judge of the
Merced Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6
of the Cal. Const.) Affirmed as
modified.
William D. Farber, 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, Natasha Cortina, Ronald A. Jakob and Kelley Johnson, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant
John Ervin Terrill guilty of assault by force likely to produce great bodily
that defendant had personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) Defendant subsequently admitted that he had
sustained three prior prison terms. (§
667.5, subd. (b).) As a result,
defendant was sentenced to a total term of 10 years in
served. Defendant’s sole contention on
appeal is that the abstract of judgment should be corrected to describe his
convicted offense as “assault by force likely to produce great bodily injuryâ€
rather than “assault with a deadly weapon.â€
We agree and will direct the superior court clerk to amend the abstract
of judgment.
I
PROCEDURAL BACKGROUND
Defendant was charged by amended
information with first degree robbery
(§§ 211, 212.5, count 1); assault with a deadly weapon (§ 245, subd.
(a)(1), count 2); and assault by force likely to produce great bodily injury (§
245, subd. (a)(1), count 3). As to count
3, the amended information also alleged that defendant had personally inflicted
great bodily injury upon the victim.
(§ 12022.7, subd. (a).) The
amended information further alleged that defendant had sustained three prior
prison terms. (§ 667.5,
subd. (b).)
Following a jury trial, defendant
was convicted of assault by force likely to produce great bodily injury as
alleged in count 3.
name="_ftnref3" title="">[3] The jury also found true
that defendant had personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) The abstract of judgment indicates that
defendant was convicted of “Assault w/deadly.â€
II
DISCUSSION
Defendant contends the abstract of
judgment erroneously reflects that he was convicted of assault with a deadly
weapon rather than his actual conviction of assault by force likely to produce
great bodily injury. He maintains that
he is aggrieved by the difference because assault with a deadly weapon
constitutes a felony strike conviction and is a violent felony; thus, as it
remains, defendant may face enhanced sentencing should he reoffend and have his
credit for time served limited. The
People concede the issue. We agree.
Appellate courts have inherent power to correct clerical errors
contained in abstracts of judgment that do not accurately reflect the
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The distinction between assault with a deadly
weapon and assault by force likely to produce great bodily injury is important
because the former is a serious felony, which counts as a “strike†and can
double the sentence for a subsequent offense.
(People v. Delgado (2008) 43
Cal.4th 1059, 1065.) Similarly,
conviction of a violent felony limits prison conduct credits to 15
percent. (§ 2933.1,
subd. (a).)
Here, the jury expressly found
defendant guilty of assault by force likely to produce great bodily injury and
not, as indicated in the abstract of judgment, assault with a deadly
weapon. As noted above, assault with a
deadly weapon is a strike offense. Thus,
the abstract of judgment must be corrected to reflect that defendant was
convicted of the nonstrike offense of assault by force likely to produce great
bodily injury, rather than assault with a deadly weapon. Such correction may be made in whatever
abbreviated form is regularly used to reflect such a conviction in abstracts of
judgment.
III
DISPOSITION
The superior court clerk is directed
to amend the abstract of judgment to correctly reflect that defendant was
convicted of “assault by force likely to produce great bodily injury,†not
“assault with a deadly weapon.†The
superior court clerk is further directed to forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and
Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
name="_ftn1" title=""> [1] All future statutory
references are to the Penal Code unless otherwise stated.
Defendant’s
son was a codefendant in this matter, but he is not a party to this appeal.
name="_ftn2" title=""> [2] The details of defendant’s
criminal conduct are not relevant to the limited issue raised in this
appeal. Those details are set out in
defendant’s opening brief, and we will not recount them here.
