People v. Xiong CA3

Filed 10/21/13 P. v. Xiong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE,

Plaintiff and Respondent, C072837

v. (Super. Ct. No. CRF12574)

JACKIE XIONG,

Defendant and Appellant.

Appointed counsel for defendant Jackie Xiong asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Our review has revealed an inconsistency between the oral pronouncement of judgment and the minute order. The matter was resolved by a plea agreement. As part of the plea, the parties agreed the trial court would dismiss counts 2, 3, and 5, and the attendant enhancement allegations. Consistent with the plea agreement, we direct the trial court to dismiss counts 2, 3, and 5, and the attendant

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enhancement allegations, and order a new minute order prepared reflecting these dismissals. As modified, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) Because this matter was resolved by plea the facts are taken from Yuba County Sheriff’s Department incident report as summarized in the People’s statement and the probation report. In September 2012, defendant was living with his 17-year-old girlfriend. He punched her in the face, knocked her to the ground, and used the handle of a screwdriver to strike her on the legs more than 10 times. He then took a belt and choked her and dragged her across the floor by the neck. During the assault, defendant swung a knife at her, held a knife to her neck, and repeatedly threatened to kill her. The victim believed defendant’s threats. Defendant continued to punch the victim over the next several hours and then they fell asleep. When they awoke, defendant would not allow the victim to leave the bedroom. Eventually, the victim’s parents came to pick her up and took her to the hospital. The victim sustained contusions to the left and right side of her face, her left bicep, and around her right wrist. She had massive discoloration and swelling to her outer thigh and left foot. Her right eye was swollen shut. An information charged defendant with spousal abuse (Pen. Code, § 273.5, subd. (a); count 1),1 two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 and 3), making criminal threats (§ 422; count 4) and statutory rape (§ 261.5, subd. (c); count 5). As to all the counts, the information alleged defendant had a prior strike conviction (§ 1170.12, subds. (b) & (c), 667, subds. (d) & (e)). As to the spousal abuse charge, the information also alleged defendant personally inflicted great bodily injury