People v. Westensee CA3 ( 2023 )

Filed 3/28/23 P. v. Westensee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(El Dorado)
----
THE PEOPLE, C096852
Plaintiff and Respondent, (Super. Ct. No. P20CRF0574)
v.
JIM LORIN WESTENSEE,
Defendant and Appellant.
Appointed counsel for defendant Jim Lorin Westensee asked this court to review
the record and determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436.) After reviewing the record, we have identified a minor
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error in the abstract of judgment that requires correction. Finding no arguable error that
would result in a disposition more favorable to defendant, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendant with three counts of committing a lewd act on
a child under the age of 14 years as to victim J. Doe 1 (Pen. Code, § 288, subd. (a);
counts 1 to 3)1 , one count of oral copulation with a child 10 years of age or younger as to
victim J. Doe 2 (§ 288.7, subd. (b); count 4), three counts of committing a lewd act on a
child under the age of 14 years as to victim J. Doe 2 (§ 288, subd. (a); counts 5, 7, and 8),
one count of forcible oral copulation with a child under the age of 14 years as to victim
J. Doe 2 (former § 288a, subd. (c)(2)(B); count 6), and one count of committing a lewd
act on a 14-or-15-year-old as to J. Doe 2 (§ 288, subd. (c)(1); count 9). As to counts 1, 2,
3, and 5 through 8, the prosecution further alleged a multiple victim enhancement under
section 667.61 subdivisions (b), (c) and (e)(4).
Defendant pleaded no contest to count 1, guilty to count 7, and admitted the
multiple-victim enhancement. He agreed to a 10-year criminal protective order and a
victim restitution award of $100,000 for each of the two victims, and the parties
stipulated to a 30 years to life sentence. The prosecution agreed to dismiss the
outstanding charges.
In accordance with the plea agreement, the trial court imposed consecutive 15
years to life sentences for each of the two counts, for a total sentence of 30 years to life.
The court also imposed the stipulated victim restitution. Considering defendant’s ability
to pay and the plea to two counts, the court imposed a restitution fine (§ 1202.4) of $600,
a $600 parole revocation fine (§ 1202.45), suspended pending revocation of parole, an
$80 court operations assessment (§ 1465.8), a $60 criminal conviction assessment (Gov.
1 Undesignated statutory references are to the Penal Code.
2
Code, § 70373), a $500 sex offender fee (§ 290.3), and a $3,000 lewd act fine (§ 288,
subd. (e)).
Defendant filed a notice of appeal without a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking 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 received no communication from
defendant.
Our review has identified a clerical error in the abstract of judgment. The trial
court orally imposed a $500 sex offender fee under section 290.3 and a $3,000 lewd act
fine under section 288, subdivision (e), but neither of these amounts are reflected on the
abstract of judgment. “Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We will direct the trial
court to correct the abstract of judgment.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to reflect the $500 sex offender fee (§ 290.3) and the $3,000 lewd act fine
(§ 288, subd. (e)), and to forward a certified copy of the corrected abstract of judgment to
the Department of Corrections and Rehabilitation.
\s\ ,
McADAM, J.*
We concur:
\s\ ,
DUARTE, Acting P. J.
\s\ ,
BOULWARE EURIE, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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