People v. Vanburen CA6

Filed 3/11/15 P. v. Vanburen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040978 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F25487)

v.

DILLION VANBUREN,

Defendant and Appellant.

Defendant Dillion Vanburen appeals from a judgment following his conviction by guilty plea to battery with serious bodily injury. Defendant contends that the court sentenced him for assault with force likely to produce great bodily injury, a separate charge to which he had not pleaded. We agree that error appears on this record and therefore must reverse and remand for resentencing. Background Defendant was charged by information with three felonies: (1) assault by means likely to produce great bodily injury, in violation of Penal Code section 245, 1 subdivision (a)(4); (2) battery with serious bodily injury, in violation of section 243, subdivision (d); and (3) carrying a dirk or dagger, a violation of section 21310. A special allegation added that defendant had personally inflicted great bodily injury on the victim,

1 All further statutory references are to the Penal Code.

2 making the battery a serious felony within the meaning of section 1192.7. Defendant was also alleged to be ineligible for county jail, based on section 1170, subdivision (h)(3). The charges arose from the September 2013 beating of a juvenile by defendant and others, resulting in serious injuries to the victim’s face and head. When contacted by police, defendant admitted to carrying a concealed folding knife. On February 28, 2014, pursuant to a negotiated disposition, defendant pleaded guilty to count two, the battery with serious bodily injury. He also admitted that he had personally inflicted great bodily injury on the victim, as alleged in the information. The parties agreed that the remaining charges would be dismissed and that defendant’s sentence would not exceed four years to be served at 85 percent time. The probation report prepared for sentencing reflected this disposition. The trial court imposed an aggravated prison term of four years as recommended by the probation officer and urged by the prosecutor. The parties and the court agreed that this was “a half-time case” and thus rejected the probation officer’s statement that the sentence was to be served “at 85 percent time.” The court therefore awarded half-time credits for defendant’s presentence custody time. Defendant filed a timely appeal, challenging only the sentence imposed. Discussion The parties agree that the clerk’s minutes and the abstract of judgment reflect clerical error in recording the count on which defendant was convicted. Although the reporter’s transcript of the plea hearing clearly indicates a plea to count two, the battery with serious bodily injury, the clerk’s minutes for that proceeding indicate that defendant pleaded guilty to count one, the aggravated assault charge. Similarly, the clerk’s minutes