Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03F07558
NICHOLSON, Acting P.J.
A jury convicted defendant Devery Wilkerson of nine counts of sexual battery on medically institutionalized persons (counts two, four, seven, nine, eleven, thirteen, fifteen, sixteen, eighteen; Pen. Code, § 243.4, subd. (b)), one count of orally copulating an unconscious person (count five; § 288a, subd. (f)), and one misdemeanor count of endangering a dependent adult (count seventeen; § 368, subd. (c)). The jury found true as to each felony that the victims were vulnerable and defendant violated a position of trust. The jury also determined that one of the sexual battery counts, count eighteen, involved planning and sophistication.
Further undesignated references to sections are to the Penal Code.
The trial court sentenced defendant to a state prison term of 14 years, calculated as follows: the base term of six years (midterm) on count five, the oral copulation count, plus consecutive one-year terms on eight of the nine sexual battery counts, counts two, four, nine, eleven, thirteen, fifteen, sixteen, and eighteen. The court imposed a concurrent one-year term on the ninth sexual battery count, count seven, and it stayed sentencing on the misdemeanor endangerment count, count seventeen.
Defendant raises the following contentions on appeal:
(1) Insufficient evidence supports six of the sexual battery counts (counts two, four, nine, eleven, fifteen, and sixteen) because the evidence does not demonstrate the victims were medically incapacitated or seriously disabled;
(2) The concurrent sentence on count seven must be stayed under section 654;
(3) The trial court abused its discretion by relying on improper factors to deny probation and to sentence defendant to the midterm of six years on count five instead of the low term; and
(4) The court erred by not reducing the sexual battery convictions to misdemeanors.
As to his last two contentions, defendant asserts he suffered ineffective assistance of counsel if we deem the arguments forfeited.
Except to stay the sentence on count seven and also order the abstract of judgment be corrected as to count seventeen, we disagree with defendant’s contentions and affirm the judgment.
FACTS
In 2003, defendant worked as a care assistant at Mercy General Hospital in Sacramento. One of his duties included shaving patients in preparation for cardiac and other surgical procedures.
Cardiac procedures require areas of skin next to a patient’s genitals to be shaved. Open heart surgery requires most of the body be shaved, whereas an angiogram or angioplasty requires only the area around the crease in the leg and the immediately adjacent area to be shaved. For either procedure, most of the pubic hair is left unshaved. Hair on the penis and testicles does not have to be removed.
The hospital’s policies and procedures required a care assistant performing surgery prep to use a set of electric clippers to shave the patient and to wear gloves. The policies also required the assistant to place a privacy towel over the patient’s genitalia during clipping. If the assistant found it necessary to move the penis or testicles out of the way, he was to do so by using the towel or the patient’s gown. It was never necessary to massage or stimulate the penis or the testicles.
Defendant, however, while performing his work, sexually molested a number of male patients over a period of six weeks.
July 14, 2003, Miguel J. (Count Nine)
68-year-old Miguel J. arrived at Mercy General by ambulance for open heart surgery after having a heart attack. Defendant came into the room to prep Miguel, and asked Miguel’s son to leave. He pulled the curtain completely around Miguel’s bed and directed Miguel to take off his robe.
Using what appeared to Miguel to be a disposable, non-electric razor, defendant shaved Miguel’s left arm, then his legs, his chest, the sides of his ribs, and lastly the pubic area. At that point, defendant, who was not wearing gloves, began molesting Miguel. Defendant was breathing heavily, deeply, and sexually as he squeezed Miguel’s penis. Miguel said nothing because he was embarrassed and did not want his son to know what was going on. When he made a small movement with his waist, defendant stopped.
Miguel was not under the influence of any medications when the incident occurred.
July 29, 2003, Stennis M. (Counts Seventeen & Eighteen)
30-year-old Stennis M. came to Mercy General for back surgery. Defendant checked in Stennis at the presurgical area. He took Stennis to a cubical to disrobe and put his clothes in a bag. Defendant commented that Stennis had pretty feet that were cute. From the way defendant spoke and carried himself, and from defendant’s two hoop earrings, Stennis believed defendant was gay and was coming on to him.
After surgery, Stennis was in a lot of pain from the surgery and from a urinary catheter. He was placed on pain relievers, a muscle relaxant, and an anti-anxiety sedative. A nurse removed the catheter.
Stennis’s mother had been visiting Stennis at the hospital. When she left, defendant came into the room and asked Stennis about his trouble with the catheter. Defendant lifted the sheet and looked at Stennis’s penis. He then molested Stennis while keeping his eye on the door. Stennis saw what defendant was doing, but because he was numb from his waist down, he could do nothing about it. After a couple of minutes, defendant put the sheet down and left the room.
July 31, 2003, Rafael F. (Count Sixteen)
60-year-old Rafael F. was transported by ambulance to Mercy General for open heart surgery. He had suffered a heart attack and was in renal failure. When defendant came in to prep him, Rafael was not sedated. As Rafael had very little body hair, defendant used a clipper to cut one hair on Rafael’s chest.
Moving closer to Rafael’s feet, defendant lowered Rafael’s underwear and, while not wearing gloves, started playing with Rafael’s penis. This went on for some time, and then defendant pulled up Rafael’s underwear and left the room. Defendant did not shave any hair from Rafael’s pubic area.
August 6, 2003, Belton M. (Count Thirteen)
79-year-old Belton M. was transferred from Methodist Hospital to Mercy General by ambulance for an angiogram. Shortly after Belton had received drugs to make him drowsy for the procedure, defendant came into his room and closed the curtain around his bed. Belton was “on the verge of the twilight zone” and fell asleep to the buzz of defendant’s electric razor.
Belton awoke thinking he was having a wet dream in which he had ejaculated. It felt to him like intercourse or oral sex. He woke up in the middle of ejaculating, and discovered defendant was molesting him.
August 7, 2003, David B. (Count Eleven)
66-year-old David B. was scheduled for open heart surgery at Mercy General. He had previously had four angioplasties and three surgeries to have wire stints inserted. He had been shaved in the pubic area for each procedure, and at no time had the attendant touched him inappropriately.
On this day, defendant prepped David. David was not sedated at the time. Defendant shaved, in order, David’s chest, one of his arms, his torso, his legs, and his pubic area. He shaved the last area using a disposable razor. Defendant spent quite a while shaving the pubic area. David realized defendant was molesting and stimulating him, causing him to begin an erection. David could not believe what was happening to him. When David opened his eyes, defendant gave him what he said was a “chicken shit grin.” David glared back with a “what the hell are you doing?” Defendant stopped almost immediately.
August 20, 2003, Richard M. (Count Fifteen)
63-year-old Richard M. arrived at Mercy General by ambulance from the U.C. Davis Medical Center emergency room. Defendant prepped him for open heart surgery. At that time, Richard was semiconscious due to medication, but he was alert enough to know what was happening around him.
Defendant shaved Richard’s chest, legs, and pubic area. After shaving the pubic area, defendant began stroking and stimulating Richard’s penis. At first, Richard thought defendant was still prepping him but it was taking too long. After a few minutes, Richard looked down and saw what defendant was doing. He held up both hands and said, “Partner, hold it, that’s enough.” Defendant immediately stopped.
August 26 and 28, 2003, Marvin H. (Counts Two & Four)
62-year-old Marvin H. was taken to the Mercy General emergency room after suffering a heart attack. The next day, defendant prepped him for an angiogram. After beginning the procedure, defendant moved Marvin’s testicles so he could shave in that area. However, after moving on to shave other areas, defendant continued manipulating Marvin’s testicles and massaging his penis. After three to five minutes of this, Marvin asked defendant if this was necessary. Defendant stopped, wiped off Marvin, and left the room. While on a gurney before his angiogram, Marvin told a nurse that the attendant was doing things which were not right and enjoying himself improperly.
Marvin’s angiogram established that he required open heart surgery. On the day of surgery, defendant came to prep Marvin, announcing he needed to shave him from head to toe. As defendant started to shave, his gloved hand immediately went to Marvin’s penis. Defendant began molesting Marvin, moving his hand up and down on the penile shaft with his thumb rubbing over the tip. Defendant asked Marvin if he was enjoying it; Marvin said he was not. Marvin told defendant it was uncomfortable and embarrassing. Defendants hand was manipulating Marvin’s penis almost the entire time it took to shave his body. Marvin’s surgery consisted of six heart bypasses.
August 29, 2003, Jose J. (Counts Five & Seven)
48-year-old Jose J. had a history of heart problems. In the previous 10 years, he had suffered a large heart attack and had undergone seven angioplasties and a quadruple bypass. On this occasion, he was admitted to Mercy General for his eighth angioplasty.
Defendant entered Jose’s room, pulled the curtain around Jose’s bed, and announced he would be shaving Jose for his surgery. Jose was feeling dizzy from medication. He disrobed at defendant’s request. Using a battery-powered shaver, defendant began shaving Jose’s legs, at times holding his genitals in his hands. Defendant left the room when someone called for him, and Jose fell asleep.
When Jose woke up, defendant was standing beside the bed with Jose’s penis in his mouth. Jose felt defendant’s bare hands on his legs, testicles, penis and stomach. Jose yelled, “Hey, what’s the matter with you?” Defendant responded, “Oh, fucking shit.” He told Jose not to worry, that everything was cool. Jose was afraid because he didn’t know what kind of person defendant was and because defendant had two plastic razors in his pocket. Defendant finished shaving Jose and cleaned him off.
Defendant asked Jose to stand so he could clean off the bed. Jose got out of bed, walked into the bathroom, and locked the door. He was shaking, crying, and felt so bad he wanted to vomit. Jose had never experienced inappropriate touching with any of his previous cardiac procedures.
After defendant left the room, Jose complained to the hospital staff. The hospital immediately began to investigate Jose and Marvin’s complaints. Ultimately, defendant was arrested, and he was terminated by the hospital.
After stories of defendant’s arrest appeared in the local media, Miguel, Stennis, Rafael, Belton, Richard, and others told the police about their respective incidents with defendant. All of them except Belton identified defendant in photo lineups. Some of them filed a civil suit against defendant and the hospital.
DISCUSSION
I
Sufficiency of Evidence of Serious Disability
Defendant contends the sexual battery on institutionalized persons convictions for his molesting Marvin, Miguel, David, Richard, and Rafael (counts two, four, nine, eleven, fifteen, and sixteen) cannot stand because substantial evidence does not support the finding that the victims were seriously disabled or medically incapacitated, an element of the crime. We disagree.
Section 243.4, subdivision (b), defines the crime of sexual battery upon an institutionalized person as follows: “Any person who touches an intimate part of another person who is institutionalized for medical treatment and who is seriously disabled or medically incapacitated, if the touching is against the will of the person touched, and if the touching is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.” (Italics added.)
Section 243.4 also defines the statute’s relevant terms. A person who is “institutionalized” includes one who is located in a hospital, voluntarily or involuntarily. (§ 243.4, subd. (g)(5).) The term “medically incapacitated” means “a person who is incapacitated as a result of prescribed sedatives, anesthesia, or other medication.” (§ 243.4, subd. (g)(4).) Most relevant to this case, the term “seriously disabled” means “a person with severe physical or sensory disabilities.” (§ 243.4, subd. (g)(3).)
Plaintiff argues that because Marvin, Miguel, David, Richard, and Rafael were awake, alert, and not on medication at the time of the attacks, the jury could not determine that they were seriously disabled or medically incapacitated. We agree there is no evidence these men were medically incapacitated, as that term is defined. However, there is ample evidence they were seriously disabled.
By his argument, defendant implies heart attacks and heart disease are not physical disabilities. Some years ago, our Supreme Court rejected such a narrow interpretation of the related term “physical handicap,” and the court’s reasoning applies here with equal force.
In American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, the court determined the phrase “physical handicap” as used in employment discrimination law included high blood pressure. The court reasoned that a physical handicap was not confined to a major physical ailment or defect. Instead, a physical handicap was “a condition of the body” that has the “disabling effect” of making “achievement unusually difficult.” (Id. at p. 609.) Any condition of the body which has that disabling effect is a physical handicap. (Ibid.)
In 1992, the Legislature substituted the term “physical disability” for “physical handicap” in the Fair Employment and Housing Act and modeled the definition of physical disability on that contained in the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1025.) That definition, the Legislature stated, “shall have the same meaning as the term ‘physical handicap’ . . . construed in American National Ins. Co. v. Fair Employment & Housing Com. [supra].” (Stats. 1992, ch. 913, § 21.3, p. 4308.) The Legislature also defined “‘physical disability’” to include any “physiological disease” that affects the cardiovascular system and limits a major life activity. (Gov. Code, § 12926, subd. (k).)
There is no doubt that heart disease and heart attacks disabled each of the victims here. The five victims who were alert during the molests required open heart surgery due to their progressed heart disease. Their conditions were life threatening. In this state, the patients were very sensitive to levels of stress. Increased levels of stress could worsen their conditions, causing increased chest pain, physical instability, and even additional heart attacks. To maintain physical and mental stability, the patients’ activities were severely limited. They had to be kept quiet, calm, reassured, and stable.
Defendant’s molestations had just the opposite effect. Cardiologists who testified at trial stated without rebuttal that the stress on the victims caused by defendant’s actions could have been severe enough to have precipitated a fatal heart attack.
This is sufficient evidence showing the victims were seriously disabled at the time of the attacks. Each suffered physical conditions that had the disabling effect of making achievement by them unusually difficult, especially as they lie alone, isolated, and undressed in a hospital. Ample evidence thus supports defendant’s convictions of sexual battery upon an institutionalized person in counts two, four, nine, eleven, fifteen, and sixteen.
II
Sentence on Count Seven
Defendant claims the trial court erred when it imposed concurrent sentences on counts five and seven, the oral copulation and sexual battery, respectively, of Jose. He argues, and the attorney general agrees, that the sentence on count seven, the sexual battery count, should have been stayed under section 654. We agree with the parties.
Section 654 “prohibits multiple punishment for an indivisible course of conduct even though it violates more than one statute.” (People v. Chacon (1995) 37 Cal.App.4th 52, 65, fn. omitted.) Counts five and seven arose from defendant’s committing sexual battery and oral copulation on Jose. Jose woke up to find defendant orally copulating him and manipulating his penis at the same time. Defendant’s act violated more than one statute, but constituted an indivisible transaction. The crimes occurred simultaneously against the same victim and for the same sexual purpose. The trial court should have stayed the sentence on count seven under section 654. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
III
Denial of Probation and Sentencing to the Midterm
Defendant contends the trial court abused its discretion by denying probation and sentencing defendant on the oral copulation of an unconscious person count to the midterm of six years. He claims the court improperly relied on an element of the offenses, the victim’s vulnerability, and considered an aggravating factor not shown by the evidence, planning and sophistication, to justify sentencing defendant to the midterm.
Defendant has forfeited his right to make these arguments. He did not argue for probation at trial, nor did he object to the sentencing factors relied upon by the trial court. Thus, he is barred from raising the arguments here. (People v. Scott (1994) 9 Cal.4th 331, 356.)
In the alternative, defendant asserts his trial counsel provided ineffective assistance by failing to argue for probation and to object to the court’s sentencing factors. To establish ineffective assistance of counsel, defendant must show (1) his counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability the result would have been different absent the error. (In re Resendiz (2001) 25 Cal.4th 230, 239, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) We conclude defendant has failed to make the required showing.
A. Additional background information
For purposes of meeting the requirements of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], the amended information specifically alleged that (1) the victims were vulnerable; (2) defendant violated a position of trust; and (3) the crimes involved planning or sophistication.
Apart from the convictions, the jury determined that each of the victims in the sexual battery counts was vulnerable, and defendant had violated a position of trust as to each of them. The jury also determined that the sexual battery against Stennis, count eighteen, involved planning and sophistication.
The presentence probation report indicated that defendant was statutorily eligible for probation, but recommended against it. It recommended a state prison term because defendant had taken advantage of a position of trust or confidence to commit the offenses, and because the manner in which defendant committed the crimes demonstrated criminal sophistication or professionalism. It proposed defendant be sentenced to the midterm of six years on the oral copulation of an unconscious person count, and then one-third the midterm, or one year, on each of the sexual battery counts except for count seventeen, resulting in a term totaling 15 years.
Defense counsel did not argue for probation: “I recognize that although [defendant is] eligible for probation, that that is not really on the table, I recognize that was a practical consequence of his behavior, and I haven’t asked for probation. But I have recommended to the Court a sentence of eight years, that’s approximately half of the 15 recommended by probation.” Defendant also submitted a formal statement in mitigation and an extensive packet of personal letters and requests for leniency written on his behalf.
The trial court considered the presentence report, the statement in mitigation, and the other materials filed by defendant. It also listened to and considered statements by defendant and defendant’s relatives and friends. It then explained to defendant that it would not grant him probation, and it would sentence defendant consistent with the presentence report in primary part due to defendant’s betrayal of a position of trust: “It is clear that you have the support and love of a lot of people in the community, a lot of people with whom you have interacted.
“In the same room, however, and conveyed to the Court again through documents and presented through the trial, I’m faced with a contrasting group of people who have suffered very directly, very significantly by your actions, by your criminal actions. The common characteristics and probably the only characteristics they all share is that there was a level of trust along with them in you.
“Your family and loved ones still believe in you and trust you, and I understand where that comes from. Contrast that with the people who have testified as victims by your hand, by your conduct, that their trust has been betrayed.
“They came to the hospital . . . with a reasonable expectation that they would receive care, nurturing, be in a safe environment in which to receive treatment and to heal. The vulnerability of such victims are people in that circumstances [sic] is self-evident and certainly a breach of that trust is deplorable. [¶] . . . [¶]
“Probation is not something the Court will consider, although statutorily you are eligible [but] in light of the number of victims and the circumstances which involved the abuse and the vulnerability of the victims in these cases, and I do believe, given the fact that these events occurred over a period of time, that that does evidence planning on your part, and the state of mind that essentially of waiting for an opportunity to engage in this criminal conduct.
“You took advantage clearly of a position of trust with respect to the patients in the hospital.” The court denied probation and sentenced defendant to prison for 14 years.
B. Failure to argue for probation
Defense counsel’s decision not to argue for probation did not fall below an objective standard of reasonable advocacy. Counsel recognized the futility of seeking probation. Two obvious aggravating factors applied here; the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime, and the defendant’s taking advantage of a position of trust to commit the crime. (Cal. Rules of Court, rule 4.414(a)(1), (9).) Defendant’s acts could have triggered fatal heart attacks in his hospitalized victims, and he performed his crimes under the guise of a trusted health care worker. As a result, the probation officer had recommended denying probation. Recognizing these facts, counsel did what he reasonably could do. He submitted a comprehensive statement of mitigation, along with numerous letters and statements attesting to defendant’s character and requesting leniency. He brought and introduced witnesses who spoke of defendant’s character, and he argued competently for a substantially lesser term. In short, he did the best he could.
For the reasons just discussed, there also was no reasonable probability the court would have granted probation even if defense counsel had requested it. Indeed, as if counsel had asked for probation, the court acknowledged defendant was statutorily eligible and it explained why it would not grant probation. As counsel recognized, the nature and scope of defendant’s crimes and, in particular, defendant’s abuse of the victims’ trust, removed probation from consideration. Defendant suffered no prejudice by counsel’s action.
C. Failure to object to sentencing factors
Defendant claims his trial counsel rendered ineffective assistance when he failed to object to the trial court’s reliance on the victims’ vulnerability as a factor for denying probation and imposing the midterm sentence. Vulnerability, he argues, was implicitly an element of the sexual battery on institutionalized persons and oral copulation on an unconscious person crimes, and that factor could not be used as both proving an element of the crime and justifying the denial of probation. (See People v. Parrott (1986) 179 Cal.App.3d 1119, 1124-1125.) He also claims that vulnerability could not be used as proving an element of the crime and justifying the imposition of the midterm sentence.
Additionally, defendant claims trial counsel erred by not objecting to the court’s determination of planning and sophistication as a ground for denying probation and imposing the midterm. He asserts the jury found that defendant planned only the assault on Stennis; thus there was insufficient evidence to support the trial court’s finding that defendant planned his attacks.
We address the last point first. Sufficient evidence supports the trial court’s determination of planning, and defense counsel’s failure to object did not fall below an objective standard of reasonable advocacy. The trial court used another set of facts found by the jury to determine defendant had planned his crimes. The court stated that defendant’s committing the attacks over a period of time indicated planning on his part and waiting for an opportunity to commit the crimes. Defendant committed 11 sexual crimes on nine separate occasions over a six-week period. This fact indicates defendant did more than simply act impulsively when he attacked the victims. His plan was simple, obvious, and consistently implemented. The court did not abuse its discretion relying on this factor to deny probation and impose sentence.
As to the trial court’s reliance on the victims’ vulnerability, we assume for purposes of argument that the court erred in relying on a factor that was also implicitly an element of the crime, and counsel should have objected. Nonetheless, defendant was not prejudiced by counsel’s failure to object because the court relied upon an additional factor that was not an element of any offense and which defendant does not challenge here -- his violation of a position of trust. Violation of trust was the primary reason why the court denied defendant probation.
Given the facts surrounding defendant’s attacks, the court certainly did not arbitrarily or capriciously deny probation. It is not reasonably probable that the court would have granted probation, having found such an astounding abuse of trust, had counsel objected to the court’s reliance on the victims’ vulnerability.
Defendant faults counsel for not objecting to the court’s use of vulnerability, an element of the crimes, to impose the midterm sentence. This argument is specious. Upon proof of the elements of a crime, the midterm sentence is the presumptive sentence. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420.) Thus, if as defendant argues, vulnerability was an element, there was no basis on which counsel could object to relying on vulnerability to impose the midterm. Even if counsel had objected, the sentence would have been the same. Given the nature and scope of the breach of trust, defendant should acknowledge the grace and lenity of the trial court for not imposing the upper term.
Defendant suffered no ineffective assistance of counsel regarding the court’s denial of probation and sentencing to the midterm.
IV
Failure to Reduce Sexual Batteries to Misdemeanors
Sexual battery on an institutionalized person is a wobbler; that is, the court may designate and punish the crime as a felony or a misdemeanor. (§ 243.4, subd. (b).) Defendant argues the trial court abused its discretion by not reducing his nine counts of sexual battery to misdemeanors. He asserts the trial court’s failure to discuss its power under section 17 to reduce the convictions to misdemeanors demonstrates the court did not know it had the power to reduce wobblers to misdemeanors or was not aware these crimes were wobblers. He also claims his trial counsel rendered ineffective assistance by failing to request the trial court reduce the wobblers to misdemeanors.
Defendant’s attack on the trial court is offensive. We presume the trial court considered all relevant sentencing factors and options in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310; Cal. Rules of Court, rule 4.409.) Indeed, by expressly denying probation, the trial court implicitly denied reducing the sexual battery counts to misdemeanors. There is nothing in this record indicating the trial court did not consider all of its sentencing options. Defendant’s contrary accusation is groundless.
There is also no evidence suggesting defense counsel’s failure to address the point constituted ineffective assistance. Defendant claims that reducing the wobblers to misdemeanors would have reduced his exposure to future sentencing enhancements based on prior felony convictions. Regardless of how defendant was sentenced on the sexual batteries, he was still convicted of the oral copulation felony, and thus subject to future enhancements for prior felony convictions. Counsel was not unreasonable in deciding not to press this argument.
Even if counsel should have objected, there is no reasonable probability the court would have converted the wobblers into misdemeanors. The trial court denied probation, denied imposing the low term sentence, and refused to impose the sexual battery sentences concurrently. On this record, there is simply no basis to believe the trial court would have reduced the sexual batteries to misdemeanors had counsel so requested.
As the Attorney General argues, the court had no reason to reduce the crimes to misdemeanors so that defendant could avoid enhancements should he commit felonies in the future. If defendant is not going to reoffend in the future, he should have no concern about future enhancements. If, however, defendant is likely to reoffend, as the number of crimes and victims here suggests, the court had no reason to lighten his consequences. He suffered no prejudice by counsel’s failure to challenge the wobblers being sentenced as felonies.
V
Abstract of Judgment
Finally, we note that the abstract of judgment states defendant was convicted on count seventeen of elder abuse under section 366, subdivision (b)(1). This is incorrect. Defendant was convicted on count seventeen of misdemeanor dependent endangerment under section 368, subdivision (c). We direct the superior court to make this correction to the abstract of judgment.
DISPOSITION
The sentence on count seven is stayed. In addition, the abstract is to be corrected in accordance with part V of this opinion. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: HULL, J., CANTIL-SAKAUYE, J.