P. v. Carrasco
Filed 3/2/06 P. v. Carrasco CA3
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. GERARDO ANTHONY CARRASCO, Defendant and Appellant. | C048206
(Super. Ct. Nos. CM018861, CM016640)
|
Defendant Gerardo Anthony Carrasco entered negotiated pleas in two cases consolidated for sentencing. In case No. CM016640, defendant pleaded no contest to vandalism (Pen. Code, § 594, subd. (a))[1] and resisting arrest (§ 148, subd. (a)(1)). In case No. CM018861, he pleaded no contest to two counts of committing a lewd act upon a child. (§ 288, subd. (a).) In exchange for his pleas, additional charges and special allegations were dismissed.
Defendant was sentenced to 10 years 8 months in state prison, consisting of eight years (the upper term) for the first child molestation count, a consecutive two-year term (one-third the middle term) for the second child molestation count, and a concurrent eight-month term (one-third the middle term) for vandalism. Defendant was sentenced to a consecutive one-year term in county jail for resisting arrest.
Defendant appeals, contending the trial court's sentencing violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) by imposing the upper term and by imposing consecutive sentences. In a letter to the trial court written after the institution of this appeal, defendant also requests that the trial court correct the abstract of judgment in several respects. If the trial court has not already done so, we shall order the abstract of judgment corrected and affirm the judgment.
Discussion
A. Blakely error
A recitation of the facts underlying defendant's conviction is unnecessary to the issue resolved on appeal. Defendant claims that Blakely, supra, 542 U.S. 296, invalidates the statutory method used by California trial judges to impose upper term and consecutive sentences, thereby invalidating his sentence.
After this appeal was briefed, the California Supreme Court, in People v. Black (2005) 35 Cal.4th 1238, held that Blakely does not invalidate California's method of imposing upper term and consecutive sentences. (Black, supra, 35 Cal.4th at pp. 1244, 1254, 1262-1264.) We are required to follow the holding in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject defendant's claim of sentencing error.
B. Correction of Abstract of Judgment
As stated above, there are several errors in the abstract of judgment.
First, on page one, section 1, the abstract reflects that in case No. CM018861 defendant was convicted in counts 1A and 2A of violating section â€
