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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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




1      Undesignated statutory references are to the Penal Code.
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(§ 12022.7, subd. (e)). The information further alleged defendant’s prior conviction
rendered him eligible for sentencing to state prison.
       Defendant pled no contest to spousal abuse and making criminal threats and
admitted he personally inflicted great bodily injury with a sentence cap of nine years and
eight months. As part of the plea, the parties agreed the trial court would dismiss the
remaining counts and attendant enhancement allegations. The trial court took the
People’s motion to dismiss the remaining counts and enhancement allegations under
submission.
       At sentencing, the trial court found section 654 did not preclude punishment on
both the assault and criminal threats convictions, as defendant had an opportunity to
reflect on his actions, it was a divisible course of conduct and he had separate intentions,
one to inflict injury and the other to intimidate the victim to prevent her from fleeing and
calling the police. Accordingly, the trial court sentenced defendant to serve the upper
term of four years for the spousal abuse conviction, five years for the great bodily injury
enhancement and a consecutive eight-month term (one-third the midterm) for the
criminal threats, for an aggregate term of nine years and eight months. The trial court
imposed various fines and fees and awarded 85 days of presentence custody credits.
Defendant did not obtain a certificate of probable cause.
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436,
requesting the court to review the record and determine whether there are any arguable
issues on appeal. 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 elapsed,
and we received no communication from defendant. Having undertaken an examination




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of the entire record, we find no arguable error that would result in a disposition more
favorable to defendant.
       We have, however, found an error in the December 21, 2012, minute order. The
record reflects the trial court intended to execute the terms of the plea agreement, but
neglected to dismiss the statutory rape and two assault-with-a-deadly-weapon counts, as
well as the attendant prior strike conviction allegations, during the oral pronouncement of
judgment. Notwithstanding the oral pronouncement of judgment, the December 21,
2012, minute order reflects the People’s motion to dismiss the remaining counts was
granted. The record indicates both parties and the trial court intended these counts and
attendant enhancement allegations would be dismissed. The trial court accepted
defendant’s no contest pleas to spousal abuse and making criminal threats and his
admission to personally inflicting great bodily injury. The trial court then sentenced
defendant in accordance with the plea agreement. Neither party mentioned the agreement
to dismiss the remaining counts and enhancement allegations. Based on this record, it is
evident the trial court neglected to dismiss the remaining counts and enhancement
allegations as part of the plea agreement. Accordingly, we direct the trial court to dismiss
counts 2, 3, and 5, and the attendant enhancement allegations under sections 1170.12,
subdivisions (b) and (c), and 667, subdivisions (d) and (e). We also direct the superior
court clerk to prepare a new minute order reflecting the trial court’s dismissals because
the December 21, 2012, minute order incorrectly indicated the court dismissed those
counts and allegations at that time.
                                       DISPOSITION
       The trial court is directed to dismiss counts 2, 3, and 5, and the attendant
enhancement allegations under Penal Code sections 1170.12, subdivisions (b) and (c),
and 667, subdivisions (d) and (e). The trial court clerk is directed to prepare a new


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minute order dismissing counts 2, 3, and 5, and the attendant enhancement allegations.
The clerk is further directed to forward a certified copy of the new minute order to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.



                                                       HOCH             , J.



We concur:



          RAYE           , P. J.



          ROBIE          , J.




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