P. v. Tirado

Filed 5/30/06  P. v. Tirado CA3

NOT TO BE PUBLISHED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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

(Glenn)

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     Defendant Jose Angel Tirado pleaded guilty to battery on a peace officer, a felony, as well as misdemeanor resisting an officer and misdemeanor battery on an emergency medical technician.  The court sentenced defendant to the upper term of three years in state prison for battery on a peace officer, plus an additional year each for resisting an officer and battery on an emergency medical technician.  The court ordered the sentences served consecutively, and specified defendant serve the misdemeanors in state prison.  Defendant's aggregate sentence was five years in state prison.  The court sentenced defendant to one year in county jail on an unrelated matter, to run concurrently. 

     On appeal, defendant contends the trial court improperly:  (1) ordered defendant to serve the misdemeanor sentences in state prison instead of county jail and (2) violated defendant's Sixth Amendment and due process rights by sentencing him to the upper term for the felony conviction of battery on a peace officer based on facts not found by a jury.  Long after defendant filed his notice of appeal, the trial court entered an order directing that defendant's misdemeanor sentence terms would be served in county jail.^[1]  We agree the trial court erred in ordering the misdemeanor sentences to be served in state prison.  Moreover, the trial court's tardy attempt to rectify its error was void.  We find no error in imposing the upper term for the felony.  Because the trial court's belated order modifying the sentence was ineffectual, we modify the judgment and affirm as modified. 

FACTS

     On May 1, 2004, Orland police officers were dispatched to a report of a fight in progress.  When officers arrived defendant was lying on the ground and screaming someone had stabbed him.  Defendant refused to speak with officers at this time, but a witness reported defendant got into a fight with a neighbor. 

     While speaking to a witness, Officer Ed Marshall saw defendant approach the man he claimed stabbed him.  Officer Marshall commanded defendant to stop, but defendant ignored him.  Officer Marshall grabbed defendant and, although defendant resisted, was able to wrestle him to the ground.  Deputy Craig Bauer came to assist and, while still on the ground, defendant punched and kicked Deputy Bauer in the face.  At this point other officers and Eric Johnson, an emergency medical technician, also assisted in controlling defendant.  During the struggle, defendant kicked Johnson in the stomach and on the left arm.  Defendant was eventually subdued and placed in a patrol car. 

DISCUSSION

I

Misdemeanor Sentence in State Prison

     Defendant argues, and the Attorney General agrees, that defendant's misdemeanors are not punishable by imprisonment in state prison.  We agree the trial court's sentence was contrary to law.

     A trial court has the power to correct clerical errors in its record; however, clerical errors must be distinguished from judicial errors, which cannot be corrected by amendment after a notice of appeal has been filed.  (In re Candelario (1970)3 Cal.3d 702, 705.)  â€