Filed 6/28/17 P. v. Vilchis CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PASCUAL BECERRIL VILCHIS,

Defendant and Appellant.
H043960
(Santa Clara County
Super. Ct. No. C1511785)
Defendant Pascual Becerril Vilchis pleaded no contest to three counts of forcible lewd or lascivious acts on a child in violation of Penal Code section 288, subdivision (b)(1). The trial court sentenced defendant to 28 years in prison and orally ordered that he not have visitation with the victim. However, the abstract of judgment states: “No contact w/victim or family.” On appeal, defendant contends, and the People concede, that the abstract of judgment must be corrected to reflect the trial court’s oral pronouncement. For the reasons discussed below, we shall direct the clerk of the superior court to modify the judgment to reflect the court’s orally pronounced judgment and to correct another minor error our review of the record revealed. As modified, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2014, the victim’s mother reported to San Jose police that her live-in boyfriend, defendant, had sexually abused her 13-year-old daughter, the victim. The victim told police that defendant had touched her breasts and vagina approximately 20 times during the prior four years. Defendant admitted to police that he had touched the victim’s chest two or three times and her vagina once, but claimed she was a willing participant.
The Santa Clara County District Attorney filed a complaint on May 29, 2015 charging defendant with continuous sexual abuse of a child under age 14 (§ 288.5, subd. (a), count 1); sexual penetration by force, violence, duress, menace or fear of bodily injury (§ 289, subd. (a)(1), count 2); four counts of lewd or lascivious acts on a child under age 14 (§ 288, subd. (a), counts 3-6); and one count of forcible lewd or lascivious acts on a child (§288, subd. (b)(1), count 7). A year later, the district attorney amended the complaint to add counts 8 and 9, alleging two additional violations of section 288, subdivision (b)(1).
On May 24, 2016, the day the complaint was amended, defendant pleaded no contest to counts 7, 8, and 9 in return for a 28-year prison sentence. The trial court imposed the agreed upon 28-year sentence on August 4, 2016. The sentence consists of the upper term of 10 years on count 7, the upper term of 10 years on count 8, and the middle term of eight years on count 9, with all of the terms running consecutively. At sentencing, the court issued an order “prohibiting visitation between the [d]efendant and the child victim[] pursuant to [section] 1202.05 of the Penal Code. A criminal court protective order will be issued in this case up to 10 years, pursuant to section 136.2 of the Penal Code.” The abstract of judgment, however, reflects a no contact order with not only the victim, but also her family. The court dismissed the remaining charges.
Defendant timely appealed.
II. DISCUSSION
Defendant’s sole contention on appeal is that the abstract of judgment does not reflect the visitation order imposed and must be corrected to accurately reflect the trial court’s oral pronouncement. The People agree, as do we.
“An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Where there is “an evident discrepancy between the abstract of judgment and the judgment that the reporter’s transcript . . . reflect[s], the appellate court itself should order the trial court to correct the abstract of judgment.” (Id. at p. 188.) Here, the oral pronouncement barring visitation with only the victim controls over the inconsistent and incorrect order set forth in the abstract of judgment. Accordingly, we order correction of the abstract of judgment so that it is consistent with the trial court’s oral pronouncement.
Our review of the record has revealed another error in the abstract of judgment. In sentencing defendant, the court indicated that the eight-year term on count 9 was “one third of the mid[dle t]erm.” The abstract of judgment likewise indicates that the eight-year term on count 9 is one-third the middle term. But, in fact, eight years is the full middle term for a section 288, subdivision (b)(1) violation. Evidently, the trial court misspoke when it described the prison term imposed on count 9 as “one-third the middle term” because the court indicated that it was sentencing defendant pursuant to section 667.6, subdivision (d). Section 667.6, subdivision (d) requires the imposition of “full, separate, and consecutive term[s]” for each violation of section 288, subdivision (b) committed against “the same victim on separate occasions.” (§ 667.6, subds. (d), (e)(5).) The probation report supports the conclusion that the trial court intended to impose a full, separate, and consecutive term on count 9 pursuant to section 667.6, subdivision (d) and misspoke when it said it was imposing “one-third the mid[dle t]erm.” That report recommended the sentence the court ultimately imposed and stated that section 667.6, subdivision (d) applied.
Neither party raises this issue. Given the error in the abstract of judgment, which already requires correction, we will sua sponte direct the trial court to correct this error as well. “In the interest of judicial economy and because the trial court’s error[] and the appellate remed[y is] clear, we modify the judgment without requesting supplemental briefing.” (People v. Taylor (2004) 118 Cal.App.4th 454, 456.) Any party purporting to be aggrieved may petition for rehearing. (Id. at p. 457; Gov. Code, § 68081.)
III. DISPOSITION
The clerk of the superior court is directed to modify the abstract of judgment to reflect the orally imposed no visitation order and the fact that the term imposed on count 9 is not one-third the middle term. The clerk of the superior court is further directed to forward a copy of the amended abstract of judgment to the California Department of Corrections. As amended, the judgment is affirmed.




_________________________________
ELIA, ACTING P.J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












People v. Vilchis
H043960