Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super. Ct. No. INF054672. Michele D. Levin, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Enrique Arguello appeals following a guilty plea. He argues the trial court erroneously stayed his conviction for attempted sexual penetration (Pen. Code, §§ 289, 664) pursuant to section 654. According to defendant, the trial court should have dismissed this conviction pursuant to his plea agreement or because it is a lesser included offense to his conviction for assault with the intent to commit an act of sexual penetration. (§ 220.)
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with three separate residential burglaries (§ 459) on three different dates: May 4, 2006 (count 1), May 7, 2006 (count 2), and May 13, 2006 (count 5). In connection with the burglary on May 7, 2006 (count 2), defendant was also charged with two additional crimes that allegedly took place during the burglary: count 3, assault during a burglary on victim K. S., with the intent to commit an act of sexual penetration (§ 220), and count 4, attempted sexual penetration of the victim knowing she was unconscious (§§ 289, 664). It was also alleged defendant had a strike prior (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), a serious felony prior (§ 667, subd. (a)), and a prison prior (§ 667.5, subd. (b)).
Although the information alleges count 4 took place on May 13, 2006, the court amended the date to May 7, 2006, based on information provided by the People.
On March 7, 2008, as trial was about to commence, defendant executed a change of plea form and indicated through counsel a willingness to plead guilty as charged based on an indicated sentence by the court. The court advised defendant it would impose a total of 17 years in prison if he pled guilty to all charges. The court then accepted defendant’s guilty plea and imposed a 17-year sentence.
DISCUSSION
The change of plea form in the record states defendant agreed to plead guilty “[a]s charged,” and also states “count 4 is a lesser to count 3 (4 to be dismissed).” Citing this change of plea form, defendant argues the trial court should have dismissed rather than stayed count 4 based on the terms of his plea agreement. He therefore seeks specific performance of the plea agreement. However, defendant is mistaken. There was no plea agreement, because the prosecutor did not execute defendant’s change of plea form. (See, e.g., People v. Orin (1975) 13 Cal.3d 937, 943 [stating “it is undisputed that the prosecution did not agree to the arrangement by which the charges against defendant were disposed of; it is therefore clear that the matter under consideration herein does not involve a plea bargain”].) Rather, defendant pled guilty based on an indicated sentence by the court. Where, as in this case, the defendant pleads guilty to all charges, the prosecution need not consent to the plea, and the court may give an “ ‘indicated sentence’ ” so long as the sentence is “within the ‘boundaries of the court’s inherent sentencing powers.’ [Citation.]” (People v. Vessell (1995) 36 Cal.App.4th 285, 296.)
Citing our Supreme Court’s decision in People v. Medina (2007) 41 Cal.4th 685 (Medina), defendant also argues the trial court erroneously stayed count 4 pursuant to section 654 when it should have dismissed it as a lesser included offense to count 3. According to defendant, count 4, attempted sexual penetration of an unconscious victim during a burglary (§§ 289, 664), is a lesser included offense to count 3, assault with intent to commit sexual penetration (§ 220), because he could not commit the allegations in count 4 without also committing the allegations in count 3. We agree.
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); see also § 954.) However, “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.]” (Reed, at p. 1227.) Where the validity of multiple convictions is at issue, the statutory elements test is used to determine whether an offense is necessarily included in another. (Id. at p. 1231.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (Id. at p. 1227.) In Medina, our Supreme Court reaffirmed a longstanding rule requiring dismissal of a lesser included offense when the defendant is convicted of both the greater and the lesser offenses. (Medina, supra, 41 Cal.4th at pp. 701-702.)
In pertinent part, section 220, subdivision (b), states: “Any person who, in the commission of a burglary of the first degree . . . assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section . . . 289 shall be punished by imprisonment in the state prison for life with the possibility of parole.” (Italics added.) Section 289 states in pertinent part as follows: “(d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six or eight years. As used in this subdivision, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: [¶] (1) Was unconscious or asleep.” (Italics added.) Based on the foregoing, it is apparent that the incorporation of section 289 by reference in section 220 means that section 220 can be violated by a defendant who, during the course of a burglary, commits an act of sexual penetration on a victim who is sleeping or unconscious. In effect, section 220 incorporates all of the elements of section 289. For our purposes, the only significant difference between the offenses proscribed in sections 220 and 289 is that a violation of section 220 must occur during the commission of a burglary.
Here, count 3 accuses defendant of a violation of section 220, and states, “he did willfully and unlawfully assault [the victim], with the intent to commit an act of sexual penetration on another with a foreign object.” Based on the citation to section 220, we can assume the offense was alleged to have occurred during the commission of the burglary alleged in count 2. Count 4 accuses defendant of a violation of sections 289 and 664, and states, “he did attempt to willfully and unlawfully have, accomplish and participate in an act of penetration of genital and anal opening with foreign object with [the victim], where [the victim] was at the time unconscious of the nature of the act, said unconsciousness being known to said defendant.” In sum, both counts 3 and 4 allege a sexual penetration against the same victim on the same date, but with reference to two different statutes. The only significant difference between the allegations in the two counts is that count 3 alleges the sexual penetration took place during the commission of a burglary. As a result, it is obvious that count 4 is a lesser included offense of count 3, because defendant could not commit count 3, without also committing count 4.
The reference to section 664 means this offense was charged as an attempt. “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) An “attempt is a lesser included offense of any completed crime.” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.)
To reach the total of 17 years, the court selected count 1, a burglary on May 4, 2006, as the principal term and imposed the middle term of four years doubled to eight years as a result of the prior strike. As to count 2, a burglary on May 7, 2006, the court imposed a consecutive one-year four-month term (i.e., one-third of the middle term of four years), doubled to two years eight months as a result of the prior strike. As to count 3, the sexual assault (§ 220) on the victim, which occurred during the burglary on May 7, 2006, the court imposed a concurrent term of four years. As to count 4, attempted sexual penetration of the victim, which also occurred during the burglary on May 7, 2006, the trial court stated it intended to “strike the punishment” because “it is the same criminal act” and “it is a lesser-included offense to that charged in Count 3.” However, there is a conflict in the record, because the court’s minutes and the abstract of judgment indicate the court stayed the sentence on count 4 pursuant to section 654. As to count 5, the court imposed one-third the middle term of one year four months to be served consecutively to the time imposed on counts 1, 2, and 3 but decided not to double the term as a result of the prior strike. For the prior serious felony, the court added a consecutive term of five years. The court imposed but then struck the one-year enhancement for the prison prior based on a representation made by the People.
In addition, while advising defendant of the indicated sentence prior to his guilty plea, the court said, “Because it is the same date as what occurred in Count 3, that’s actually a lesser offense to what is charged in Count 3. The Court cannot, by operation of law, impose a sentence for both of those offenses, and so I would be striking Count 4 in terms of its punishment that would be imposed, so there would be no additional punishment for Count 4, by operation of law.”
As noted above, the trial court orally concluded on the record that count 4 was a lesser included offense to count 3 and stated it intended to strike or dismiss count 4. Thus, it is apparent there was a clerical error in the court’s minutes and on the abstract of judgment, which both state count 4 is stayed pursuant to section 654. “Courts may correct clerical errors at any time, and appellate courts . . . have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.] [¶] It is, of course, important that courts correct errors and omissions in abstracts of judgment. 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.) Therefore, we will direct the superior court to correct its minutes and the abstract of judgment to correctly state count 4 is dismissed rather than stayed because it is a lesser included offense to count 3.
DISPOSITION
The clerk of the Superior Court of Riverside County is directed to correct the minute order of the sentencing proceeding and the abstract of judgment to reflect that count 4 is dismissed as a lesser included offense to count 3 rather than stayed pursuant to section 654. The clerk of the Superior Court of Riverside County is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: McKINSTER, J., MILLER, J.