Filed 12/15/05 P. v. Olguin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed as modified.

Scott M. Rand, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Defendant Alejandro Mera Olguin pleaded guilty to four felony counts of violating Penal Code section 288, subdivision (a) (lewd act upon a child under 14 years of age) (counts 1 through 4), one felony count of violating section 288, subdivision (c)(1) (lewd act upon a 14- or 15-year-old child at least 10 years younger) (count 5), and one misdemeanor count of violating section 243.4, subdivision (e)(1) (sexual battery) (count 6). (All further statutory references are to the Penal Code.) The trial court sentenced defendant to the six-year middle term for each of counts 1 through 4, and ordered defendant's sentences on counts 2, 3 and 4 to run concurrently with his sentence on count 1. The trial court also sentenced defendant to eight months (one-third the two‑year middle term) on count 5, to run consecutively to the sentence on count 1, and to a one-year term on count 6 to run concurrently with his sentence on count 1. Defendant was sentenced to a total term of six years eight months.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument in defendant's own behalf. That period has passed, and we have received no communication from defendant. We have examined the record, and with the exception of a sentencing error on count 6 and a clerical error in the abstract of judgment discussed below, we have not found any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

First, the trial court erred by sentencing defendant on count 6 to a one-year term because section 243.4, subdivision (e)(1) only authorizes a maximum term of six months for a violation of that section and subdivision. We therefore modify the judgment by reducing defendant's sentence on count 6 from a one-year term to a six-month term. The modified sentence on count 6 shall run concurrently with defendant's sentence on count 1.

Second, the abstract of judgment contains a clerical error on page two by erroneously stating that defendant's sentence on count 5 is to be served concurrently with count 1. This portion of the abstract of judgment must be corrected to reflect the trial court's statement that defendant's sentence on count 6 is to be served concurrently with his sentence on count 1. On page one, the abstract of judgment correctly reports that defendant's eight-month sentence on count 5 is to run consecutively to his sentence on count 1.

The judgment is modified to reduce defendant's sentence on count 6 from a one-year term to a six-month term. The abstract of judgment shall be corrected to reflect that the sentence on count 6 shall run concurrently with the sentence on count 1. Defendant's total sentence of six years eight months remains unchanged. The clerk of the trial court is directed to issue an amended abstract of judgment to reflect this modification of defendant's sentence and this correction of the abstract of judgment, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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