Filed 7/2/14 P. v. Ramirez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                               2d Crim. No. B244152
                                                                 (Super. Ct. Nos. VA117203, VA125846)
     Plaintiff and Respondent,                                            (Los Angeles County)

v.

MIGUEL ANGEL RAMIREZ,

     Defendant and Appellant.



                   Miguel Angel Ramirez appeals the judgment following his convictions for
forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1))1 (counts 1 and 2),2
attempted forcible rape (§§ 664, 261, subd. (a)(2)) (count 6), forcible rape (§ 261, subd.
(a)(2)) (count 20), lewd act upon a child (§ 288, subd. (a)) (counts 21, 22, and 23),
aggravated sexual assault of a child by sexual penetration (§§ 269, subd. (a)(5), 289,
subd. (a)) (count 24), aggravated sexual assault of a child by rape (§§ 269, subd. (a)(1),
261, subds. (a)(2), (a)(6)) (count 25), sexual penetration by a foreign object (§ 289, subd.
(a)(1)) (count 26), and sodomy by use of force (§ 286, subd. (c)(2)) (count 27). He
contends that the evidence is insufficient to support his conviction for attempted forcible


         1 All statutory references are to the Penal Code unless otherwise stated.

         2 Count numbers correspond to the fourth amended information. The jury was
instructed on and given verdict forms referencing an 11-count information that does not
exist in the record. Appellant concedes that its absence presents no notice issues.
rape of a minor. He also claims that the trial court erred by sentencing him to more than
one life term per victim for offenses that occurred on a single occasion and in imposing a
criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) in excess of that
authorized by statute. In addition, appellant asserts that the counts on which he was not
convicted must be dismissed, and the minute orders incorrectly stating that they were
dismissed must be corrected. Lastly, appellant seeks correction of a count numbering
discrepancy in the clerk's minutes. We will correct the indeterminate sentencing error,
reduce the conviction assessment, and direct the clerk to correct the clerical errors in the
minute orders and abstract of judgment. Otherwise, we affirm.
                                          FACTS
              Appellant and his wife have four children: a son, and three daughters—B.,
A., and P. On various occasions, appellant committed sexual offenses against each of his
three daughters.
                                          Minor B.
                                      Counts 1 and 2
              When B. was 10 years old, appellant entered the room where she and her
sisters slept and asked if anyone could give him a massage. After B. volunteered,
appellant brought her into his room and closed the door. B. climbed onto his back and
massaged him. Appellant then turned her over, pinned down her wrists, pulled down her
pants, and put his penis in her vagina. Although it felt painful and B. wanted to scream,
she did not fight off appellant or say anything to him because she was scared and
appellant was bigger than her. Appellant also forced B.'s head down and inserted his
penis into her mouth. When he stopped, B. opened the door and ran out.
                                          Count 20
              When she was 14 years old, B. was making ramen noodles when appellant
came into the room. He pinned her down so that her stomach was against the back of the
couch and she was bent over the top. Standing behind her, appellant put his penis into
B.'s vagina through a hole in the basketball shorts that she was wearing. She attempted to


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fight him off but could not. After appellant got off of her, she ran into her room and
cried.
                                         Count 6
              One day when B. was 15 years old, she came home from school. Because
it was a hot day and her parents' bedroom was the only room with air conditioning, she
went there, lay down on the bed, and watched television. Eventually, she fell asleep.
When she awoke, appellant was in the bed lying next to her. He pulled her pants down
and touched her vagina. At first B. did not move because she was too scared. Appellant
pulled B. closer to him and tried to put his penis in her vagina. When his penis touched
the area between her anus and vagina, B. jumped up and ran out of the room. Later, she
told her brother and her mother what had happened. They took her to the hospital where
she spoke with the police.
                                         Minor A.
                                         Count 21
              When A. was 10 years old, she and appellant were upstairs in her parents'
room while the rest of the family were downstairs. Appellant placed his hand on her
clothing over her vagina and rubbed it. A. did not say anything or physically resist
because she was scared of him.
                                      Counts 22, 23
              Sometime before A. turned 14, appellant pulled her out of school one
afternoon. He told her that they were going to take their dog to the veterinarian but
instead took her home to his room. He told her to take off her pants, which she did, and
then he removed her underwear. A. was afraid because appellant was bigger than her.
Appellant touched her vagina with his hand and then placed his penis inside it. Someone
knocked on the door and he stopped.
                                         Minor P.
                                         Count 24
              P. was five years old when appellant woke her up one night and took her to
the living room. He put his fingers in her vagina. P. was scared and did not understand

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why appellant was doing this. After appellant finished, he told her that "that's what
grownups do" and put her back in bed.
                                           Count 25
                 When P. was about 10, she went to sleep wearing a shirt and basketball
shorts. She awoke to find the shorts pulled down to her knees and appellant lying on top
of her with his penis inside of her. She tried to push him off but he kept going. A horn
honked, and P.'s mother yelled for appellant. Appellant then got up and left.
                                           Count 26
                 Another time, when P. was about 14, she woke up to find appellant at the
side of her bed with his hand inside her vagina. She tried to push his hand out with both
of hers, but he kept going. The incident ended when P.'s mother screamed from another
room that the dog had pooped there. Appellant responded that he was looking for the dog
and then left.
                                           Count 27
                 One day shortly after the family moved to Whittier, when P. was 15 years
old, she was lying in her room. Appellant entered and closed the door. He turned P. over
onto her stomach and lowered her pants. P. repeatedly told him "no," that she did not
want to do these things, but appellant put his penis in her anus. It was very painful.
                                 PROCEDURAL HISTORY
                 Appellant was charged in case number VA117203 with 21 counts of sexual
offenses against A., B., and Y.M., a woman with whom he had had a sexual relationship
that allegedly began while she was a minor.3 There was an allegation as to these counts
that multiple victims were involved (§ 667.61, subd. (b)).4 At trial, the court dismissed

       3 The original information, which contained 16 counts (including one count of
attempting to dissuade a witness, appellant's wife, from attending and giving testimony at
trial) (§ 136.1, subd. (a)(2)), omitted a count 9. The amended informations, which added
sexual offense counts, continued to omit a count 9. The trial court described the fourth
amended information as "the sloppiest information I've ever seen in 20 some odd years
on the bench."
       4 The third and fourth amended informations omitted the multiple victims
allegation in the counts involving Y.M. On the prosecution's motion, the trial court
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the counts involving Y.M. (10 through 15) on statute of limitations grounds. The court
declared a mistrial when the jury was unable to reach a verdict on all but one of the
remaining counts. Appellant was acquitted of count 19, one of two counts charging him
with forcible rape against B. (§ 261, subd. (a)(2)).
              The prosecution elected to retry appellant. In a separate case (VA125846),
appellant was charged with the four counts involving P. The court later consolidated the
two cases. At the second trial, appellant was tried on 11 of the counts (1, 2, 6, and 20
through 27) involving sexual offenses against B., A., and P. The jury convicted him on
all 11 counts and found true the allegations that multiple victims were involved on counts
1, 2, 6, 20 through 23, 26, and 27.
              Appellant was sentenced to an aggregate term of 139 years to life. On
count 6 for attempted forcible rape, the court imposed a high-term determinate sentence
of four years. On the remaining 10 counts, the court imposed indeterminate terms of 15
years to life. The court ordered each of the indeterminate terms to run consecutively to
the determinate term except for count 23, which the court ordered to run concurrently
with count 22 because it involved the same course of conduct. The court imposed a $440
court operations assessment (§ 1465.8), a $440 criminal conviction assessment (Gov.
Code, § 70373), $19,791 in restitution (§ 1202.4, subd. (f)),5 a $240 restitution fine
(§ 1202.4, subd. (b)), and a suspended $240 parole revocation restitution fine
(§ 1202.45).6 Appellant was awarded 812 days of presentence custody credit.

struck the multiple victims allegation from count 6 for attempted forcible rape because
section 667.61 does not apply to attempted crimes.
       5 At sentencing, the court—apparently looking at a proposed restitution order
prepared by the prosecution—stated only that "I have no problems in awarding restitution
for—all except for [Y.M.]. I'm going to delete/strike the $486 mental health statutory fee
for that." The prosecution indicated that it would supply the court with an amended
restitution order reflecting this modification and the court indicated that it would sign the
amended order. Although the court's minute order reflects that appellant was ordered to
pay $19,791 in restitution to the victim compensation board, the record does not contain a
copy of the restitution order. Appellant does not dispute the amount of restitution
imposed.
       6 The reporter's transcript indicates that the court orally imposed a $200 restitution
fine and a $200 parole revocation restitution fine. These amounts were unlawful, as the
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                                       DISCUSSION
            Sufficiency of the Evidence of Attempted Forcible Rape (Count 6)
              Appellant challenges the sufficiency of the evidence supporting his
conviction for attempted forcible rape. He argues that his conduct evinced at most an
intent to have intercourse with B. and that nothing in the record suggests he intended to
use force to achieve this goal.
              In reviewing claims of insufficient evidence, we examine the entire record
in the light most favorable to the judgment to determine whether there is substantial
evidence—evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Maciel (2013) 57 Cal.4th 482, 514-515.) We do not reweigh the evidence or
reassess the credibility of witnesses. (People v. Houston (2012) 54 Cal.4th 1186, 1215.)
We accept the logical inferences that the jury might have drawn from the evidence even
if we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241.)
If the trier of fact's findings are reasonably justified by the circumstances, the opinion of
the reviewing court that a contrary finding might also reasonably be reconciled with the
circumstances does not warrant reversing the judgment. (People v. Jones (2013) 57
Cal.4th 899, 961.)
              Forcible rape is "an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator" (§ 261, subd. (a)), where the act "is accomplished
against [the] person's will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the person or another" (id. subd. (a)(2)). "An
attempt to commit a crime consists of . . . a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission." (§ 21a.) Although the act must
go beyond mere preparation and demonstrate that the perpetrator is putting his plan into




statutory minimum for both fines increased to $240 on January 1, 2012. (§ 1202.4, subd.
(b)(1).) The court's minute order reflects the correct amount. Appellant has not raised
any issues arising from the discrepancy.
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action, it need not be the last proximate or final step toward commission of the
substantive crime. (People v. Kipp (1998) 18 Cal.4th 349, 376.)
                 B. awoke to find appellant lying in bed next to her, pulling down her pants,
touching her vagina, and then pulling her closer so that his penis came into contact with
her body near her sexual organs. We have previously found similar evidence sufficient to
prove intent to commit forcible rape. (See People v. Leal (2009) 180 Cal.App.4th 782,
790-791.) In this case, the evidence of intent is even more compelling given that
appellant had forcibly raped B. one year earlier. We therefore reject appellant's
contention that there was insufficient evidence of his conviction on count 6 for attempted
forcible rape.
            Resentencing Pursuant to Former Section 667.61, Subdivision (g)
                 Appellant contends that the trial court erroneously sentenced him pursuant
to the current rather than the former version of the alternative sentencing scheme set forth
in section 667.61. Pursuant to subdivisions (b) and (e), the punishment for certain sex
crimes specified in subdivision (c), when committed against more than one victim, is
consecutive indeterminate terms of 15 years to life.7 Prior to September 20, 2006,
subdivision (g) limited the imposition of the alternative sentences prescribed by section
(b) to "once for any offense or offenses committed against a single victim during a single
occasion." This limitation was removed in subsequent versions of the statute.
                 Appellant argues that the limitation applies to him insofar as counts 1 and 2
for forcible lewd act upon a child both involved the same victim (B.) and occasion, as did
counts 22 and 23 for aggravated sexual assault of a child (A.). He requests a remand for
resentencing under a determinate term for either count 1 or 2 and either count 22 or 23.
Respondent concedes the sentencing error but requests that, instead of remanding, this
court resentence appellant to the maximum determinate terms, in line with what
respondent maintains was the trial court's express intent.


       7 At the time appellant committed the offenses at issue, the multiple victims
circumstance was set forth in subdivision (e)(5) of section 667.61. Currently, it is
codified in subdivision (e)(4).
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              Normally, when presented with sentencing error, we will remand for
resentencing unless we can be certain that such an exercise would be futile—for instance,
if there is no scope for discretion (see, e.g., People v. Lawley (2002) 27 Cal.4th 102, 171-
172), or if the trial court made its sentencing intentions perfectly clear (see, e.g., People
v. Coelho (2001) 89 Cal.App.4th 861, 889-890; People v. Gutierrez (1996) 46
Cal.App.4th 804, 816-817). Here, the latter is true.
              The sentencing judge, who had more than 20 years of experience on the
bench, described appellant "as one of the worst offenders I've ever seen in my life." He
stated that he would "willingly" impose "the maximum amount of time that I can." Then,
"for the record," he explained that "it's the court's intent to impose the maximum amount
of time consecutive that I possibly can just so on appeal, if these numbers—if these
counts get mixed up, the Court of Appeal understands my intent." After announcing the
sentence, the court told appellant, "I hope you'll never be placed on parole." From the
court's comments, it is all but certain that the court would exercise its discretion to
impose the maximum possible sentence.
              Accordingly, we will modify appellant's unauthorized sentence as follows:
count 2 will be the upper term of 10 years (§ 288, subd. (b)(1)), run consecutively, as the
principal determinate term; count 6 will be one third of the middle term of three years
(§§ 264, subd. (a), 664), or one year, run consecutively, as a subordinate determinate
term; and count 23 will be the middle term of six years (§ 288, subd. (a)), run
concurrently. Thus, appellant will serve a determinate sentence of 11 years and an
indeterminate sentence of 120 years to life.
               Dismissal of Counts on Which Appellant Was Not Convicted
              The trial court issued minute orders reflecting that on August 28, 2012, the
day the jury returned guilty verdicts in the second trial, the remaining counts in the fourth
amended information, i.e., counts 3, 4, 5, 7, 8, and 10 through 19, were dismissed in
furtherance of justice (§ 1385). Appellant points out that there is no evidence in the
reporter's transcript that the dismissals of these counts actually occurred. He requests that

                                               8
we order the clerk to amend the minute orders to delete these entries and dismiss the
counts ourselves. We decline to do so.
              Appellant contends that any discrepancy between the oral pronouncement
of judgment and the minute orders must be resolved in favor of the oral pronouncement.
That is no longer the case. "[T]he modern rule is that if the clerk's and reporter's
transcript cannot be reconciled, the part of the record that will prevail is the one that
should be given greater credence in the circumstances of the case." (People v. Pirali
(2013) 217 Cal.App.4th 1341, 1346, citing People v. Smith (1983) 33 Cal.3d 596, 599.)
              In any event, there is no discrepancy here. The reporter's transcript is
merely silent on an event recorded in the clerk's minutes. Because the trial court's
judgment is presumed correct, "[a]ll intendments and presumptions are indulged to
support it on matters as to which the record is silent and error must be affirmatively
shown." (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) By merely pointing to
a gap in the reporter's transcript, appellant fails to meet his burden of showing that the
remaining counts against him were not dismissed. (See id. at p. 1423.) We conclude that
the clerk's minute orders were accurate in this regard.
                              Criminal Conviction Assessment
              It is undisputed that the trial court erred by imposing a criminal conviction
assessment of $40 rather than $30 per count. Therefore, we will reduce the assessment
from $440 to $330.
                                       Clerical Errors
              Lastly, appellant seeks a correction to the clerk's minutes with respect to
count numbering. The minute orders reporting the jury's verdicts purport to quote
directly from the language of the 11-count verdict forms but actually refer to the count
numbers in the 26-count fourth amended information. In addition, we independently
observe that there is a clerical error in the abstract of judgment concerning count 25 for
aggravated sexual assault of a child by rape. That charge was brought pursuant to


                                               9
subdivision (a)(1) of section 269, not subdivision (a)(5) as appears in the abstract of
judgment. We will direct the clerk to correct both of these errors.
                                      DISPOSITION
              Appellant's sentence is modified as follows: on count 2 he is sentenced to a
10-year determinate term; on count 6 he is sentenced to a one-year determinate term, run
consecutively to count 2; and on count 23 he is sentenced to a 6-year determinate term,
run concurrently. The criminal conviction assessment is reduced to $330. The clerk shall
issue an amended abstract of judgment consistent with these modifications and correcting
count 25 to reflect a conviction under subdivision (a)(1) of section 269. The clerk shall
also correct the August 28, 2012, minute orders to correspond to the count numbering
used on the jury verdict forms. In all other respects, the judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:




              GILBERT, P. J.




              YEGAN, J.




                                             10
                                Philip H. Hickok, Judge
                         Superior Court County of Los Angeles




             Victoria H. Stafford, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General,
for Plaintiff and Respondent.




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