P. v. Gonzalez
Filed 8/16/12 P. v. Gonzalez CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS TARELO GONZALEZ,
Defendant and Appellant.
B236716
(Los Angeles
County
Super. Ct.
No. NA080045)
APPEAL from
a judgment of the Superior Court
of
County.
Tomson T. Ong, Judge.
Affirmed as modified, and remanded.
Edward H.
Schulman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II and Linda C. Johnson, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________________
A jury
convicted defendant Jesus Tarelo Gonzalez of
§ 209, count 1); forcible sexual
penetration by a foreign object (id.,
§ 289, subd. (a)(1), count 2); and attempted forcible rape (
subd. (a)(2)). The trial court
sentenced defendant to life on count 1, and stayed the sentence pursuant to
Penal Code section 654. The court
imposed 25 years to life on count 2, pursuant to Penal Code
section 667.61. In addition, the
court imposed an eight-year term of imprisonment on count 2. On count 3, the trial court imposed
one-third the midterm, or two years, consecutive to count 2. Gonzalez appealed his convictions and
sentence, and in an unpublished opinion we concluded that the trial court erred
in sentencing defendant to 25 years to life plus eight years on count 2,
in addition to two years on count 3. We
remanded the case to the trial court for resentencing, but otherwise affirmed
defendant’s convictions. (
On August 22, 2011, the trial court resentenced defendant to
an indeterminate term of 25 years to life on count 2, and the upper term of
four years on count 3, to run concurrently.
He was awarded 235 days of custody credits, consisting of 205 actual and
30 conduct credits. The abstract of
judgment listed the conviction for count 3 as “attempted pandering.” Counsel submitted a motion to the trial court
requesting that the custody credits be recalculated for all time served before
resentencing, and that the abstract of judgment be corrected to reflect
defendant’s conviction on count 3 for attempted forcible rape rather than
attempted pandering. The trial court
denied the motion as to the custody credits, concluding “there is no need to
re-compute the custody credits. The
custody credits are computed on the date of the original sentence, not the date
of any amendment to the abstract of judgment.”
The court made no ruling regarding the correction to count 3. An amended abstract of judgment was issued
that reflected the same number of custody
credits as well as a conviction for attempted pandering on count 3 (other
matters not at issue in this appeal were corrected).
In this appeal, defendant seeks to
correct these errors. Respondent
concedes, and we agree, that defendant is entitled to have his custody credits
recalculated according
to the date of resentencing of August 22, 2011, and to have the abstract
of judgment corrected to properly reflect his conviction for attempted forcible
rape on count 3. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“a court has the
inherent power to correct clerical errors in its records so as to make these
records reflect the true facts”]; People
v. Buckhalter (2001) 26 Cal.4th 20, 29 [“[W]hen a prison term already in
progress is modified as the result of an appellate sentence remand, the
sentencing court must recalculate and credit against the modified sentence all
served, whether in jail or prison, and whether before or since he was
originally committed and delivered to prison custody”].)
The case is remanded. The trial court is directed to recalculate
defendant’s custody credits through the date of resentencing, and to issue a
corrected abstract of judgment reflecting defendant’s conviction for attempted
forcible rape on count 3. The trial court is directed
to forward a certified copy of the amended abstract of judgment to the
affirmed.
GRIMES, J.
WE CONCUR:
FLIER, Acting P. J. SORTINO, J. *
__________________________________
* Judge of the
Los Angeles Superior Court, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
