Filed 7/2/14 P. v. Ramirez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
MIGUEL ANGEL RAMIREZ,
Defendant and Appellant. 2d Crim. No. B244152 (Super. Ct. Nos. VA117203, VA125846) (Los Angeles County)

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 penetratio n (§§ 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 pe netration by a foreign ob ject (§ 289, subd. (a)(1)) (count 26), and sodomy by use of force (§ 286, s ubd. (c)(2)) (count 27). He contends that the evidence is insufficient to support his convi ction 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 refere ncing an 11-count information that does not exist in the record. Appellant concedes that its absence pr esents no notice issues.2 rape of a minor. He also claims that the tr ial 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, appe llant 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 j udgment. Otherwise, we affirm.
FACTS Appellant and his wife have four child ren: a son, and three daughters—B., A., and P. On various occasi ons, appellant committed sexual o ffenses 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 gi ve him a massage. After B. volunteered, appellant brought her into his room and clos ed the door. B. climbe d onto his back and massaged him. Appellant then turned her ov er, pinned down her wrists, pulled down her pants, and put his penis in her vagina. Alth ough it felt painful and B. wanted to scream, she did not fight off appella nt 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 stoppe d, 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. Standi ng behind her, appellant put his penis into B.'s vagina through a hole in the basketball s horts that she was wearing. She attempted to3 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 parent s' bedroom was the only room with air conditioning, she went there, lay down on the bed, and watche d television. Eventually, she fell asleep. When she awoke, appellant was in the bed ly ing next to her. He pulled her pants down and touched her vagina. At fi rst B. did not move because sh e 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. jump ed up and ran out of the room. Later, she told her brother and her mother what had happened. They to ok her to the hospital where she spoke with the police.
Minor A. Count 21 When A. was 10 years old, she and ap pellant were upstairs in her parents' room while the rest of the family were downstairs. Ap pellant 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. turn ed 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 ro om. 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 va gina with his hand and then pla ced 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 va gina. P. was scared and did not understand4 why appellant was doing this. After appellant finished, he told he r 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 trie d 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 in side 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. Appella nt responded that he was looking for the dog and then left.
Count 27 One day shortly after the family m oved to Whittier, when P. was 15 years old, she was lying in her room. Appellant ente red 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 appe llant 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 allegati on as to these counts that multiple victims were i nvolved (§ 667.61, subd. (b)). 4 At trial, the court dismissed

3 The original information, which cont ained 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 inform ation I've ever seen in 20 some odd years on the bench."

4 The third and fourth amended info rmations omitted the multiple victims allegation in the counts involving Y.M. On the prosecution's motion, the trial court5 the counts involving Y.M. ( 10 through 15) on statute of limitations grounds. The court declared a mistrial when th e 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 appella nt. In a separate case (VA125846), appellant was charged with the four counts invol ving P. The court la ter 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 th at multiple victims we re involved on counts 1, 2, 6, 20 through 23, 26, and 27. Appellant was sentenced to an aggreg ate term of 139 years to life. On count 6 for attempted forcible rape, the cour t 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 th e indeterminate terms to run consecutively to the determinate term except fo r count 23, which the court ordered to run concurrently with count 22 because it involved the same cour se of conduct. The court imposed a $440 court operations assessment (§ 1465.8), a $440 criminal conviction assessment (Gov. Code, § 70373), $19,791 in res titution (§ 1202.4, subd. (f)), 5 a $240 restitution fine (§ 1202.4, subd. (b)), and a suspended $240 parole re vocation restitution fine (§ 1202.45). 6 Appellant was awarded 812 days of presentence custody credit.

struck the multiple victims a llegation 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 prosecu tion—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 i ndicated that it would sign the amended order. Although the court's minute or der reflects that appellant was ordered to pay $19,791 in restituti on 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 revoc ation restitution fine. These amounts were unlawful, as the6 DISCUSSION Sufficiency of the Evidence of Atte mpted 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 su ggests he intended to use force to achieve this goal. In reviewing claims of insufficient evidence, we examin e the entire record in the light most favorable to the judgment to determine whether there is substantial evidence—evidence that is reasonable, cr edible, and of solid value—from which a reasonable trier of fact coul d find the defendant guilty be yond 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.4t h 1186, 1215.) We accept the logical inferences that the jury might have drawn from the evidence even if we would have conc luded otherwise. ( People v. Streeter (2012) 54 Cal.4th 205, 241.) If the trier of fact's findings are reasonabl y justified by the circum stances, 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" (§ 2 61, subd. (a)), where th e act "is accomplished against [the] person's will by means of forc e, violence, duress, menace, or fear of immediate and unlawful bodily inju ry 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 co mmission." (§ 21a.) Although the act must go beyond mere preparation and demonstrate that the perpetra tor 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.7 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 in tent is even more compelling given that appellant had forcibly raped B. one year earlier. We therefore reject appellant's contention that there was insu fficient evidence of his conv iction on count 6 for attempted forcible rape. Resentencing Pursuant to Former Section 667.61, Subdivision (g) Appellant contends that the trial c ourt erroneously sentenced him pursuant to the current rather than the former version of the alternativ e sentencing scheme set forth in section 667.61. Pursuant to subdivisions (b) and (e), the punishment for certain sex crimes specified in subdivis ion (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 impos ition of the alternative senten ces prescribed by section (b) to "once for any offense or offenses committed against a single victim during a single occasion." This limitation wa s removed in subs equent versions of the statute. Appellant argues that the limitation app lies to him insofar as counts 1 and 2 for forcible lewd act upon a child both involved the same vic tim (B.) and occasion, as did counts 22 and 23 for aggravat ed sexual assault of a child (A.). He requests a remand for resentencing under a determinate term for eith er count 1 or 2 and either count 22 or 23. Respondent concedes the senten cing error but requests that, instead of remanding, this court resentence appellant to the maximum determinate terms, in line with what respondent maintains was the tr ial court's express intent.

7 At the time appellant committed the offe nses at issue, the multiple victims circumstance was set forth in subdivision (e )(5) of section 667.61. Currently, it is codified in su bdivision (e)(4).8 Normally, when presented with se ntencing error, we will remand for resentencing unless we can be certain that su ch 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 senten cing 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 th e 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 un derstands my intent." After announcing the sentence, the court told appellant, "I hope y ou'll never be placed on parole." From the court's comments, it is all but certain that the court woul d 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 on e 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 te rm 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 A ugust 28, 2012, the day the jury returned gu ilty verdicts in th e second trial, the remain ing counts in the fourth amended information, i.e., count s 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 thes e counts actually occurred. He requests that9 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 discre pancy between the oral pronouncement of judgment and the minute orders must be reso lved 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 circumstan ces of the case." ( People v. Pirali (2013) 217 Cal.App.4t h 1341, 1346, citing People v. Smith (1983) 33 Cal.3d 596, 599.) In any event, there is no discrepanc y here. The reporter's transcript is merely silent on an event r ecorded in the clerk's minutes . Because the trial court's judgment is presumed correct, "[a]ll inte ndments and presumpti ons are indulged to support it on matters as to wh ich 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 fa ils 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 cour t erred by imposing a criminal conviction assessment of $40 rather than $30 per coun t. 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 reporti ng the jury's verdicts purport to quote directly from the language of the 11-count ve rdict forms but actually refer to the count numbers in the 26-count fourth amended info rmation. In addition, we independently observe that there is a clerical error in th e abstract of judgment concerning count 25 for aggravated sexual assault of a child by rape. That charge was brought pursuant to10 subdivision (a)(1) of section 269, not subdivision (a)(5) as appears in the abstract of judgment. We will direct the cler k to correct both of these errors.
DISPOSITION Appellant's sentence is modified as fo llows: on count 2 he is sentenced to a 10-year determinate term; on count 6 he is se ntenced 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 asse ssment is reduced to $330. The clerk shall issue an amended abstract of judgment consis tent with these modifications and correcting count 25 to reflect a convictio n under subdivision (a)(1) of se ction 269. The clerk shall also correct the August 28, 2012, minute orders to correspond to the count numbering used on the jury verdict fo rms. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.11 Philip H. Hickok, Judge Superior Court County of Los Angeles

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