P. v. Terrill CA4/2

Filed 5/2/13 P. v. Terrill 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, E057058
v. (Super.Ct.No. RIF1104084)
JOHN ERVIN TERRILL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael S. Hider,
Judge. (Retired judge of the Merced Sup. Ct., assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed as modified.
William D. Farber, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Natasha Cortina, Ronald A.
Jakob and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant and appellant John Ervin Terrill guilty of assault by
force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)1 The jury
also found true that defendant had personally inflicted great bodily injury on the
victim. (§ 12022.7, subd. (a).) Defendant subsequently admitted that he had sustained
three prior prison terms. (§ 667.5, subd. (b).) As a result, defendant was sentenced to
a total term of 10 years in state prison with credit for time served. Defendant’s sole
contention on appeal is that the abstract of judgment should be corrected to describe
his convicted offense as “assault by force likely to produce great bodily injury” rather
than “assault with a deadly weapon.” We agree and will direct the superior court clerk
to amend the abstract of judgment.
I
PROCEDURAL BACKGROUND2
Defendant was charged by amended information with first degree robbery
(§§ 211, 212.5, count 1); assault with a deadly weapon (§ 245, subd. (a)(1), count 2);
and assault by force likely to produce great bodily injury (§ 245, subd. (a)(1), count 3).
As to count 3, the amended information also alleged that defendant had personally
inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The amended
1All future statutory references are to the Penal Code unless otherwise stated.
Defendant’s son was a codefendant in this matter, but he is not a party to this
appeal.
2 The details of defendant’s criminal conduct are not relevant to the limited
issue raised in this appeal. Those details are set out in defendant’s opening brief, and
we will not recount them here.
2
information further alleged that defendant had sustained three prior prison terms.
(§ 667.5, subd. (b).)
Following a jury trial, defendant was convicted of assault by force likely to
produce great bodily injury as alleged in count 3.3 The jury also found true that
defendant had personally inflicted great bodily injury on the victim. (§ 12022.7,
subd. (a).) The abstract of judgment indicates that defendant was convicted of
“Assault w/deadly.”
II
DISCUSSION
Defendant contends the abstract of judgment erroneously reflects that he was
convicted of assault with a deadly weapon rather than his actual conviction of assault
by force likely to produce great bodily injury. He maintains that he is aggrieved by the
difference because assault with a deadly weapon constitutes a felony strike conviction
and is a violent felony; thus, as it remains, defendant may face enhanced sentencing
should he reoffend and have his credit for time served limited. The People concede
the issue. We agree.
3 The jury found defendant not guilty of first degree robbery (§§ 211, 212.5) as
alleged in count 1, and was unable to reach a verdict on count 2, assault with a deadly
weapon (§ 245, subd. (a)(1)). The People later dismissed count 2.
3
Appellate courts have inherent power to correct clerical errors contained in
abstracts of judgment that do not accurately reflect the judgment. (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) The distinction between assault with a deadly weapon
and assault by force likely to produce great bodily injury is important because the
former is a serious felony, which counts as a “strike” and can double the sentence for a
subsequent offense. (People v. Delgado (2008) 43 Cal.4th 1059, 1065.) Similarly,
conviction of a violent felony limits prison conduct credits to 15 percent. (§ 2933.1,
subd. (a).)
Here, the jury expressly found defendant guilty of assault by force likely to
produce great bodily injury and not, as indicated in the abstract of judgment, assault
with a deadly weapon. As noted above, assault with a deadly weapon is a strike
offense. Thus, the abstract of judgment must be corrected to reflect that defendant was
convicted of the nonstrike offense of assault by force likely to produce great bodily
injury, rather than assault with a deadly weapon. Such correction may be made in
whatever abbreviated form is regularly used to reflect such a conviction in abstracts of
judgment.
III
DISPOSITION
The superior court clerk is directed to amend the abstract of judgment to
correctly reflect that defendant was convicted of “assault by force likely to produce
great bodily injury,” not “assault with a deadly weapon.” The superior court clerk is
further directed to forward a certified copy of the corrected abstract of judgment to the
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Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects,
the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
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