Filed 8/30/17 P. v. Palacio CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appointed counsel for defendant Francis Martin Palacio has filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall order the correction of some errors in the abstract of judgment and affirm the judgment.

We provide the following brief description of the facts and procedural history of this appeal after a remand for resentencing. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A jury convicted defendant of several sexual offenses and the trial court sentenced defendant to serve a state prison term of 90 years to life. Defendant appealed, raising several issues, and this court remanded for resentencing, concluding only “one of the counts of sexual penetration or rape should have been imposed consecutively to the oral copulation and kidnapping for purposes of rape while the remaining counts of sexual penetration and rape should not have been consecutively sentenced.” (People v. Francis Martin Palacio (June 22, 2016, C075901) [nonpub. opn.].)[1]

On remand, the trial court resentenced defendant to state prison for an aggregate term of 30 years to life: 15 years to life for oral copulation by force (Pen. Code, § 288a, subd. (c)(2);[2] count 7); a consecutive 15-year-to-life term for rape (§ 261, subd. (a)(2); count 5); a stayed (§ 654) 15-year-to-life term for kidnapping for purposes of rape (§ 209, subd. (b)(1); count 1); and concurrent 15-year-to-life terms for forcible sexual penetration (§ 289, subd. (a)(1); counts 2, 3, and 4) and rape (§ 261, subd. (a)(2); count 6). The trial court affirmed the previously imposed fines and assessments.

Defendant appeals.

Appointed counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

In response to appointed counsel’s request, the trial court modified the judgment to reflect the correct number of actual prejudgment days defendant had served in custody to include the days between sentencing and resentencing and directed prison officials to award conduct credit, if any, for those days pursuant to People v. Buckhalter (2001) 26 Cal.4th 20, 23. The trial court prepared an amended abstract of judgment.

In our review of the record, we discovered three errors in the amended abstract of judgment that need to be corrected. 1. Count 7 was a violation of section 288a, subdivision (c)(2) but the abstract erroneously reflects a violation of “288(c)(2).” 2. Count 5 was a violation of section 261, subdivision (a)(2) but the abstract erroneously reflects a violation of section 289, subdivision (A)(1). 3. Count 6 (§ 261, subd. (a)(2)), for which the court imposed a concurrent term, does not appear on the amended abstract.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment to reflect that count 7 was a violation of section 288a, subdivision (c)(2) and count 5 was a violation of section 261, subdivision (a)(2), and to include the concurrent term for count 6 (§ 261, subd. (a)(2)). The trial court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

MURRAY, J.