P. v. Poythress
Filed 4/13/06 P. v. Poythress CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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| THE PEOPLE, Plaintiff and Respondent, v. BENJAMINE FREDERICK POYTHRESS, Defendant and Appellant. | C049999
Super. Ct. Nos. CM019567 CM022529
|
In case No. CM019567, defendant Benjamine Frederick Poythress entered a plea of no contest to elder or dependent adult abuse (Pen. Code, § 368, subd. (b)(1)) in exchange for dismissal of the remaining count (battery, a misdemeanor) and no state prison at the outset. The court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions.
Defendant violated probation in that he was terminated from the batterer's treatment program for noncompliance. The court reinstated defendant on probation subject to an additional 60 days in county jail.
In case No. CM022529, defendant entered a plea of no contest to resisting an executive officer (Pen. Code, § 69) in exchange for dismissal of the remaining counts (criminal threats and disobeying a court order, a misdemeanor). Based on defendant's new conviction, the court found defendant in violation of probation in case No. CM019567.
The court sentenced defendant to state prison for an aggregate term of four years: in case No. CM022529, the upper term of three years for the resisting offense and in case No. CM019567, a consecutive one-third the midterm or one year for the elder abuse offense.
Defendant appeals, contending the imposition of the upper term for his conviction in case No. CM022529 contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. Our Supreme Court has now rejected that argument. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black).) He acknowledges that this court must uphold the sentence based on Black but seeks to preserve his right to federal review.
We note an error in preparation of the amended abstract of judgment which incorrectly reflects that defendant was convicted of battery (Pen. Code, § 242) in case No. CM019567; defendant was convicted of elder or dependent adult abuse (Pen. Code,
§ 368, subd. (b)(1)). We will order the abstract corrected accordingly.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment, reflecting defendant's conviction of Penal Code section 368, subdivision (b)(1) in case No. CM019567, and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.
MORRISON , Acting P.J.
We concur:
ROBIE , J.
BUTZ , J.
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