1 Filed 5/2/13 P. v. Terrill CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JOHN ERVIN TERRILL, Defendant and Appellant. E057058 (Super.Ct.No. RIF1104084)

OPINION

APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of th e Merced Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. C onst.) Affirmed as modified. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne 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.2 A jury found defendant and appellant John Ervin Terrill gu ilty of assault by force likely to produce great bodily in jury. (Pen. Code, § 245, subd. (a)(1).) 1 The jury also found true that defendant had pers onally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a ).) Defendant subsequently ad mitted 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 wi th 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 “ass ault by force likely to produce great bodily injury” rather than “assault with a deadly we apon.” We agree and will direct the superior court clerk to amend the abstract of judgment.

I

PROCEDURAL BACKGROUND 2 Defendant was charged by amended in formation with first degree robbery (§§ 211, 212.5, count 1); assault with a dead ly weapon (§ 245, subd. (a)(1), count 2); and assault by force likely to produce great bodi ly injury (§ 245, subd. (a)(1), count 3). As to count 3, the amended information al so alleged that defe ndant had personally inflicted great bodily injury upon the victim . (§ 12022.7, subd. (a).) The amended

1 All 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 defenda nt’s opening brief, and we will not recount them here.3 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 bo dily 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 judg ment erroneously reflects that he was

convicted of assault with a deadly weapon rather than hi s 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 constitute s a felony strike conviction and is a violent felony; thus, as it remain s, 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 r obbery (§§ 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 2.4 Appellate courts have inherent power to correct clerical e rrors contained in abstracts of judgment that do not accurately reflect the judgment. ( People v. Mitchell (2001) 26 Cal.4th 181, 185.) The distinction between assa ult with a de adly 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 co nduct credits to 15 percent. (§ 2933.1, subd. (a).) Here, the jury expressly found defenda nt guilty of assault by force likely to produce great bodily injury and not, as indicat ed 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 assa ult by force likely to produce great bodily injury, rather than a ssault 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 convict ed of “assault by force likely to produce great bodily injury,” not “assa ult with a deadly weapon.” The superior court clerk is further directed to forward a certified copy of the corrected abstract of judgment to the5 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.