Filed 1/22/18 P. v. Sigala CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE,
Plaintiff and Respondent,
v.
ANGELINA SIGALA,
Defendant and Appellant.
|
E068717
(Super.Ct.No. FWV1503280)
OPINION
|
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti, Judge. Affirmed in part; reversed in part with directions.
Elisabeth A. Bowman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 20, 2016, a second amended complaint charged defendant and appellant Angelina Sigala with five violations of Penal Code[1] section 288, subdivision (a), lewd act upon a child (counts 1, 2, 8, 9, 14); four violations of section 311.1, subdivision (a), exhibiting/publishing material depicting child sexual content (counts 3, 4, 10, 11); one violation of section 311.11, subdivision (a), possession of child or youth pornography (count 5); four violations of section 182m subdivision (a)(1), conspiracy to commit a crime (counts 6, 7, 12, 13); and one violation of section 261.5, subdivision (c), unlawful sexual intercourse (count 15). All the counts were charged as serious and violent felonies.
On April 6, 2017, pursuant to a plea agreement, defendant pled guilty to count 1, a violation of section 288, subdivision (a), lewd act upon a child, a strike. She additionally pled guilty to count 3, a violation of section 311.1, subdivision (a), exhibiting/publishing material depicting child sexual content. The parties agreed that defendant would be sentenced to the midterm of six years on count 1, and one-third the midterm of two years, or eight months, on count 3, to run concurrently.
On June 8, 2017, the trial court sentenced defendant to the midterm of six years on count 1, and the midterm of two years on count 3, to run concurrent.[2] The court ordered that all visitation between defendant and the child victim be prohibited under section 1202.05. Defendant objected to any “protective orders” as being outside the scope of the plea. Over defendant’s objection, the court found that “the facts, factors, and charges as it relates to the victim warrant no contact at this time.” After the court had concluded sentencing and remanded defendant to the Department of Corrections and Rehabilitation, the trial court ordered that defendant have no contact with the victim, and stated: “You must have no personal, electronic, telephonic, or written contact with [the victim]. Do not contact this person through a third person either. Stay 100 yards away at all times,” to be effectively immediately through June 28, 2027.
On July 19, 2017, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
Defendant pled guilty to counts 1 and 3:
1. COUNT 1
On or about August 25, 2015, defendant committed “a lewd and lascivious act upon and with the body and certain parts and members thereof of Jane Doe #1, a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant(s) and the said child.”
2. COUNT 3
On or about August 20, 2015, defendant unlawfully and knowingly sent and caused to be sent, and “brought and cause to be brought into this state for sale and distribution, and, in this state, possessed, prepared, published, produced, developed, duplicated and printed a representation of information, data, and image with the intent to distribute and exhibit to, and to exchange with, others, and offered to distribute, distributed, and exhibited to, and exchanged with, others any obscene matter, knowing that the matter depicted a person under the age of 18 years personally engaging in and personally simulating sexual conduct as defined in Penal Code section 311.4.”
DISCUSSION
After defendant appealed, and upon her request, this court appointed counsel to represent her. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but she has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. Upon review, we have determined that the trial court erroneously sentenced defendant to the midterm of two years on count 3, instead of one-third the midterm of two years, or eight months, as agreed upon in the plea agreement.[3] Therefore, we hereby remand this case to the trial court with directions for the court to correct the sentencing on count 3 to comport with the agreed-upon sentence of eight months, to run concurrent to count 1. In all other respects, we find no other arguable issues.
DISPOSITION
This case is reversed and remanded to the trial court to correct the sentencing on count 3 to comport with the plea agreement: one-third the midterm of two years (eight months), to run concurrent to the sentence on count 1. After the court corrects the sentencing on count 3, the clerk is directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] The trial court stated that it was sentencing defendant to the “mid-term on Count 2 and Count 3.” Defendant, however, did not enter a plea as to count 2, only as to counts 1 and 3.
[3] Defense counsel has noted that defendant “does not wish to raise this [sentencing] issue on appeal.” We, however, are remanding this matter to the trial court so that the sentencing accurately reflects the agreed-upon sentencing by defendant in her plea agreement.
