Filed 9/26/18 P. v. Canchola CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MANUEL CANCHOLA, Defendant and Appellant.

H044835 (Santa Clara County Super. Ct. No. C1644052)

Defendant appeals from a criminal judgment entered pursuant to a no contest plea. According to the notice of appeal filed by trial counsel, the appeal is “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.” Appointed counsel filed an opening brief summarizing the case but raising no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant has not done so.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and find no arguable issue on appeal. Following the California Supreme Court’s direction in Kelly, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” (Id. at p. 110.)

When Jane Doe was 11 years old she reported that defendant (her great uncle) had been molesting her since she was 8 or 9 years old. According to the probation report, defendant touched Doe’s breasts under her shirt in his bedroom with the door locked on 10 to 20 occasions when he was babysitting her. When she was 10, defendant began licking and kissing her breasts, and touching her vagina under her pajamas, also in his bedroom with the door locked. When she was turning 11, defendant began kissing her and putting his tongue in her mouth. That happened about 10 to 15 times. Defendant also made Doe watch videos of two women undressing and touching each other, and he showed her a video of himself having sex with a 16-year-old whom he described as another one of his girlfriends.

Defendant was arrested on August 10, 2016, and charged by felony complaint with five counts of oral copulation or sexual penetration with a child 10 years of age or younger between December 12, 2014 and December 11, 2015 (Pen. Code, § 288.7, subd. (b); counts 1–5), nine counts of committing a lewd or lascivious act on a child by force between December 12, 2012 and August 2, 2016 (Pen. Code, § 288, subd. (b)(1); counts 6–14), and four counts of sending a minor harmful matter depicting a minor or minors engaged in sexual conduct (Pen. Code, § 288.2, subd. (a)(1); counts 15–18). Counts 15 and 16 were alleged to have occurred between December 12, 2012 and August 2, 2016, and counts 17 and 18 were alleged to have occurred between January 1, 2014 and August 2, 2016. Counts 1 through 16 involved Jane Doe, and counts 17 and 18 involved a different victim, also defendant’s grandniece.

The prosecutor orally amended the complaint at the change of plea hearing, adding a count of sending a minor harmful matter (other than material depicting a minor or minors engaged in sexual conduct) between January 1, 2014 and August 2, 2016. (Pen. Code, § 288.2, subd. (a)(2); count 19.)

Defendant pleaded no contest to counts 6, 7, 8, and 19, with an agreed disposition of 31 years imprisonment. Defendant was sentenced to fully consecutive 10-year upper terms on counts 6 and 7, an 8-year middle term on count 8, and a 3-year upper term on count 19, for a total of 31 years in state prison, followed by a 20-year 6-month parole period under Penal Code section 3000, subdivision (b)(4)(A). The remaining charges were dismissed on the prosecutor’s motion.

The court imposed a general order of restitution, a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), a suspended $10,000 restitution fine (Pen. Code, § 1202.45), a $160 court security fee (Pen. Code, § 1465.8), a $120 criminal conviction assessment (Gov. Code, § 70373), and a $129.75 criminal justice administration fee payable to the City of Santa Clara (Gov. Code, §§ 29550, 29550.1, and 29550.2). It imposed a $500 fine plus $1,550 in penalty assessments under Penal Code section 290.3, but the statutory bases for the penalty assessments is not set forth in the record. Because California law “require[s] the court clerk to list the amount and statutory basis for each base fine and the amount and statutory basis for each penalty assessment in the abstract of judgment” (People v. Hamed (2013) 221 Cal.App.4th 928, 940; People v. Sharret (2011) 191 Cal.App.4th 859, 864; People v. High (2004) 119 Cal.App.4th 1192, 1200), we will direct the superior court clerk to prepare an amended abstract of judgment to include the amount of and statutory bases for the penalty assessments associated with the $500 fine.[1]

DISPOSITION

The judgment is affirmed. The clerk of the superior court is directed to prepare and transmit to the Department of Corrections and Rehabilitation an amended abstract of judgment to include the amount of and statutory basis for each penalty assessment associated with the $500 fine imposed under Penal Code section 290.3, as footnoted herein.