Filed 4/26/18 P. v. Rodriguez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Tehama)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

YVETTE RODRIGUEZ,

Defendant and Appellant.
C085003

(Super. Ct. Nos. NCR98329, 17CR-000221)



Appointed counsel for defendant Yvette Rodriquez has asked us to review her case for arguable error. (People v. Wende (1979) 25 Cal.3d 436.) Seeing no error that would result in a more favorable disposition for defendant, we shall affirm the judgment. We order correction of the abstract of judgment to address misplaced and omitted fines.
BACKGROUND
On June 8, 2016, defendant hit each of her three children with a power cord, blaming them for the theft of her cell phone. When defendant’s mother intervened, defendant physically fought her mother. Two children, five and six years of age, had welt marks on their backs, and the third child, three years of age, had a welt mark on her forearm. Defendant admitted hitting the children, explaining she “was mad.” Charged with three counts of child abuse (Pen. Code, § 273a, subd. (a)) in case No. NCR98329 (the original case), defendant entered a plea of guilty to one count in exchange for no state prison at the outset. The trial court suspended imposition of sentence and granted formal probation for a term of four years subject to certain terms and conditions including 90 days in county jail.
After multiple violations of probation in the original case, defendant was again charged with child abuse and other crimes in a new case, No. 17CR-000221 (the second case). The stipulated facts of the second case included that on February 8, 2017, defendant choked her six-year-old son until a relative intervened, then started a fire on the porch of the family home. Defendant then threatened her mother, shouting “ ‘[s]omething is going to happen to you,’ ” and threw things at her. Defendant pulled out a knife and threatened to kill her mother as she struggled to disarm defendant.
In the second case, defendant was charged with child abuse (§ 273a, subd. (a); count I), assault with a deadly weapon--knife (§ 245, subd. (a)(1); count II), criminal threats (§ 422, subd. (a); count III; enhanced for use of a deadly weapon, § 12022, subd. (b)(1)), and attempt to burn (§ 455; count IV).
On March 27, 2017, defendant entered a plea of guilty to all counts of the second case and admitted the enhancement in exchange for a sentence of not less than five years four months and not more than nine years four months and a referral to Behavioral Health Court for a determination of her admissibility. Based on defendant’s pleas, the trial court found defendant had violated her probation in the original case.
The Behavioral Health Court team denied admissibility, and the trial court sentenced defendant to state prison for an aggregate term of seven years. In the second case, the court imposed the midterm of four years for child abuse, a concurrent midterm of three years for assault, a consecutive one-third the midterm or eight months each for criminal threats and attempt to burn, and one-third of the enhancement, or four months, for weapon use. In the original case, the court imposed a consecutive one-third the midterm or 16 months for child abuse.
Defendant appeals in both cases. She did not request a certificate of probable cause.
DISCUSSION
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. (People v. 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 have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
However, we do note clerical errors and omissions in the abstract of judgment. The parties waived a reading of the fees and fines and the court incorporated into the judgment and sentence those fees and fines as set forth in the probation report. The abstract does not properly reflect the restitution fines.
The $2,100 restitution fine and the $2,100 parole revocation restitution fine are listed on the abstract as imposed in the original (“A”) case, but both were set forth in the probation report for the second (“B”) case and should be listed on the abstract for the “B” case instead. Further, the probation report recommended three separate restitution fines of $400 each for the original case (see §§ 1202.4, subd. (b), 1202.44, 1202.45) which are not reflected on the abstract and should be added for the original (“A”) case after the incorrectly listed fines are removed. We direct correction accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment to reflect the restitution fines for both case numbers and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.




/s/
Duarte, J.



We concur:



/s/
Raye, P. J.




/s/
Mauro, J.