NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

THE COURT*

A jury convicted appellant, Joe Rodriguez Hernandez, of two counts of oral copulation of an unconscious person (Pen. Code, § 288a, subd. (f)1; counts 8, 12) and single counts of rape of an unconscious person (§ 261, subd. (a)(4); count 6), rape of an intoxicated person (§ 261, subd. (a)(3); count 7), oral copulation of an intoxicated person (§ 288a, subd. (i); count 9), sexual penetration by foreign object of an unconscious person (§ 289, subd. (d); count 10), and sexual penetration by foreign object of an intoxicated person (§ 289, subd. (e); count 11). The court imposed a prison term of 16 years, consisting of the following: the six-year middle term on count 7; a consecutive six-year middle term on count 8; two years on count 10, representing one-third of the midterm for that offense, consecutive to the count 8 term; and two years on count 12, representing one-third of the midterm for that offense, consecutive to count 10 term. On each of counts 6, 9, and 11, the court imposed, and stayed pursuant to section 654, the six-year middle term. The court awarded appellant 619 days of presentence custody credit, consisting of 539 days of actual time credit and 80 days of conduct credit.

On appeal, appellant contends (1) the court abused its discretion in imposing full-term consecutive sentences on counts 7 and 8 under section 667.6, subdivision (c) (section 667.6(c)); (2) the court erred in calculating appellant's presentence custody credit under section 2933.1 rather than under the more generous provisions of section 4019; and (3) the abstract of judgment and minute order do not accurately reflect the judgment in certain respects and should be corrected. The People concede the second and third of these arguments. We will modify the award of presentence custody credit, order that an amended abstract of judgment and sentencing minute order be prepared, and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

Sabrina B. (B.) testified to the following: She met appellant during the summer of 2006 and got together with him four or five times that summer. On each of these occasions, appellant gave her money and pills called "Norcos." On one of these occasions, appellant asked B. if she would engage in sexual acts with him. B. said she would do so in exchange for money, and she set the price. She specified she would only masturbate him and allow him to orally copulate her.

Several video recordings made by appellant depicting him engaging in sexual activity with B. were played for the jury and admitted into evidence. One of these videos (first video), which depicts appellant committing the offenses of which he stands convicted in counts 6 through 11, shows, as summarized by the court at the sentencing hearing, the following: First, appellant orally copulated B.; approximately one minute later, he committed "digital penetration"; approximately one minute later, he again committed "oral copulation"; approximately two minutes later, "there's a vaginal penetration," and approximately one and one-half minutes later, "digital penetration again."

In summarizing this same video during closing argument, the prosecutor stated, without contradiction, that during the episode depicted, B. made virtually no sound or movement, except to occasionally moan and say "unh-unh" or otherwise direct appellant to stop.

Concerning this episode, B. testified to the following: It took place in the trailer where appellant lived. She and appellant "went out somewhere"; she drank alcohol, took "pills," and smoked marijuana; and when they returned to the trailer, she lay down on the bed and went to sleep. She did not consent to the sex acts shown in the video. She was not "aware of what was going on around [her]," although by the end of the episode, she "seem[ed] to be more aware of what's going on."

Another video (second video) showed appellant orally copulating B., as charged in count 12. B. testified that this act took place in appellant's trailer, on the night the video was made she "drank" and appellant "gave [her] some Norcos," and she was "asleep" during the act depicted. At sentencing, the court noted that the second video depicted B. wearing different clothes than she was wearing in the first video and that the lights were off in second video whereas they were on in the first video.

Another video showed B. engaging in sex acts with appellant to which, B. testified, she consented. She also testified that she consented to the making of this video recording, and that she held the camera while appellant orally copulated her.

The report of the probation officer (RPO) indicates that appellant was 54 years old at the time of the preparation of the RPO and that his criminal history consists of three misdemeanor convictions, suffered between 1988 and 1998, of the following offenses: contempt of court (§ 166), assault with a deadly weapon or by means of force likely to produce great bodily harm (§ 245, subd. (a)(1)), and driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)). Following each of these convictions, appellant was placed on probation.

The probation officer found one circumstance in mitigation, viz., that appellant's "overall performance on misdemeanor probation was satisfactory." At the sentencing hearing, defense counsel argued that the probation officer erred in failing to find that appellant's "minimal record" was a circumstance in mitigation.

Sentencing

The court stated, in explaining its decision to impose full-term consecutive sentences on counts 7 and 8, that the count 7 offense, rape of an intoxicated person in violation of section 261, subdivision (a)(3), was a "forcible sex crime" under section 667.6(c), and stated: "And the crimes involve the same victim on what appears to be separate occasions. That's the justification for full-term fully consecutive sentencing. [¶] And full-term sentencing would apply as the defendant videotaped his assaults and had many opportunities to reflect on his actions."

DISCUSSION

Imposition of Full-Term Consecutive Sentences

Appellant contends the trial court abused its discretion by imposing full-term consecutive sentences on counts 7 and 8 pursuant to section 667.6(c). Specifically, he argues that the court, in making that sentence choice, erroneously (1) relied, in part, on the fact that appellant made video recordings of the instant offenses, and (2) gave "[s]hort [s]hrift" to two mitigating factors, viz., appellant's satisfactory performance on misdemeanor probation and appellant's lack of a serious prior criminal record. (Emphasis omitted.)

Governing Principles

Section 1170.1 sets forth the general formula for determining consecutive terms of imprisonment for persons convicted of multiple felonies: the trial court selects a principal term, which is the greatest term of imprisonment imposed for any of the convictions; the sentence for the subordinate terms is one-third of the middle term for each felony for which the court imposes a consecutive term of imprisonment. (§ 1170.1, subd. (a).)

Section 667.6(c) provides for a "drastically harsher" exception to this sentencing scheme where, as here, the felony with the longest term is one of the violent sex offenses listed in subdivision (e) of section 667.6.2 (People v. Belmontes (1983) 34 Cal.3d 335, 348.) In such a case, the trial court is not required to designate this offense as the principal term. Rather, it may exercise its discretion to designate the felony not enumerated in section 667.6, subdivision (e) as the principal term under section 1170.1, and impose a full, consecutive term for the violent sex offense pursuant to section 667.6(c). (Belmontes, at p. 346.)

California Rules of Court, rule 4.425,3 lists factors the trial court may consider in determining whether to impose consecutive rather than concurrent sentences. In deciding whether to impose a full-term consecutive sentence under section 667.6(c), "The sentencing judge is to be guided by the criteria listed in rule 4.425." (Rule 4.426(b).) Rule 4.425 "incorporates rules 4.421 and 4.423, as well as any other reasonably related criteria as provided in rule 4.408." (Rule 4.426(b).)

Rule 4.421 lists circumstances in aggravation. "An aggravating circumstance is a fact that makes the offense `distinctively worse than the ordinary.' [Citations.] Aggravating circumstances include those listed in the sentencing rules, as well as ... any other facts that are `reasonably related to the decision being made.' (... [R]ule 4.408(a).)" (People v. Black (2007) 41 Cal.4th 799, 817 (Black).)

Rule 4.423 lists circumstances in mitigation. Those circumstances include, as relevant here, the following: "The defendant has ... an insignificant record of criminal conduct, considering the recency and frequency of prior crimes" (rule 4.423(b)(1)), and "The defendant's prior performance on probation ... was satisfactory" (rule 4.423(b)(6)).

"Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in `qualitative as well as quantitative terms' [citation] ...." (People v. Oberreuter (1988) 204 Cal.App.3d 884, 887 (Oberreuter ), disapproved on another ground in People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.)

"Generally, determination of the appropriate term is within the trial court's broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]." (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) "[E]xercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316; accord People v. Giminez (1975) 14 Cal.3d 68, 72 (Giminez) [a court abuses its sentencing discretion "whenever the court exceeds the bounds of reason, all of the circumstances being considered"].) "`The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Thus, for example, a claim of sentencing error "cannot be predicated on a trial court's determination that several sentences are to run consecutively unless an abuse of discretion is clearly shown. [Citations.]" (Giminez, supra, 14 Cal.3d at p. 72.) That is because, as a general rule, "a trial court has discretion to determine whether several sentences are to run concurrently or consecutively." (Id. at pp. 71-72.) Additionally, the trial court has discretion "to impose enhanced punishment under certain circumstances." (People v. Hicks (1993) 6 Cal.4th 784, 795.) That includes discretion to impose consecutive full-term sentences under section 667.6(c). (Hicks, at p. 795.)

Analysis

Appellant first argues that the court erred in basing its decision to impose full-term consecutive sentences, in part, on the fact that appellant made video recordings of the instant offenses because B. "knew of and actively participated in the videotaping of some of their [other] sex acts," and therefore, appellant asserts, "On the facts of this case, the videotaping did not make [appellant] more blameworthy ...." We disagree.

As appellant suggests, the court found that appellant's act of making a video recording of the instant offenses was a circumstance in aggravation that, in part, justified the imposition of full-term consecutive sentences. (Rules 4.426, 4.408.) That finding was far from arbitrary or irrational. The court could reasonably conclude that making a video recording of sex offenses committed against an insensible victim made those offenses "`distinctively worse than the ordinary'" (Black, supra, 41 Cal.4th at p. 817), regardless of whether the victim had consented to, or participated in, the video recording of sex acts on other occasions.

Appellant also argues that the court erred in imposing full-term consecutive sentences because in deciding to do so, the court gave "[s]hort [s]hrift" and "no weight" to appellant's satisfactory performance on probation and lack of a prior serious record, as circumstances in mitigation. (Emphasis omitted.) In support of this claim, appellant asserts the court "never stated that the mitigating circumstances were outweighed by something else" and "never purported to `weigh' the mitigating circumstances against anything." (Footnote omitted.)

However, appellant cites no authority, nor are we aware of any, that requires a sentencing court to conduct an on-the-record weighing of mitigating circumstances against aggravating factors. Indeed, to the contrary, although, as appellant points out, rule 4.409 requires a sentencing court to "consider[]" all "[r]elevant criteria enumerated [in the rules of court]," the rule also provides that such criteria "will be deemed to have been considered unless the record affirmatively reflects otherwise."

Here, the court was made aware, through the RPO, of the extent of appellant's criminal record and his prior satisfactory performance on probation. Under the principles summarized above, we presume the court considered these matters. However, the court also found significant that appellant committed a series of sex offenses, despite having an opportunity to stop, "reflect," and end his criminal conduct at any one of several points, and that he recorded his conduct on video. The presence of mitigating factors did not compel the court to forgo sentencing under section 667.6(c). The court reasonably could have found, in qualitatively balancing these aggravating factors against the mitigating factors in the record, that full-term consecutive sentences were justified. Again, the record fails to demonstrate an abuse of discretion.

Presentence Custody Credit

As indicated above, the court awarded appellant presentence custody credit of 619 days, consisting of 539 days of actual time credit and 80 days of conduct credit. The court based its award of presentence custody credit on section 2933.1—which limits conduct credit to a maximum of 15 percent of actual time served in presentence custody for persons convicted of certain offenses—rather than on section 4019, which contains more generous custody credit provisions. In basing its credit award on section 2933.1, appellant contends and the People concede, the court erred. We agree.

A defendant is entitled to have actual presentence custody credited toward his state prison sentence after conviction. (§ 2900.5, subd. (a).) Additionally, under section 4019, appellant could accrue conduct credit of two days for every four days of actual presentence custody. (§ 4019, subds. (b), (c); People v. Caceres (1997) 52 Cal.App.4th 106, 110 [correct formula is to divide days of actual custody, including date of sentencing, by four, and then multiply result, excluding remainder, by two].)

However, when a defendant has been convicted of certain crimes, viz., those listed in section 667.5, subdivision (c), section 2933.1 limits to "15 percent of the actual period of confinement" the amount of conduct credit that can be awarded. (§ 2933.1, subd. (a).)

Here, none of the instant offenses are listed in section 667.5, subdivision (c). Therefore, as the parties agree, appellant is entitled to conduct credit under section 4019. When we apply the formula set forth in the preceding paragraph, appellant, as the parties agree, is entitled to a total of 807 days of presentence custody credit, consisting of 539 days of actual time credit and 268 days of conduct credit. We will modify the judgment accordingly, and direct the trial court to prepare an amended abstract of judgment.

Abstract of Judgment and Minute Order

On the abstract of judgment, the box labeled "CONSECUTIVE 1/3 VIOLENT" is marked as to appellant's convictions on counts 10 and 12, indicating that the offenses of which appellant stands convicted in counts 10 and 12 are violent felonies, within the meaning of section 667.5, subdivision (c). As the parties agree, this is incorrect. The count 10 offense is sexual penetration by foreign object of an unconscious person (§ 289, subd. (d)) and the count 12 offense is oral copulation of an unconscious person (§ 288a, subd. (f)). The box that should have been marked as to each of counts 10 and 12 is the one labeled "CONSECUTIVE 1/3 NON-VIOLENT."

As the parties also agree, the abstract of judgment is in error in another respect. Appellant was convicted, in count 11, of violating subdivision (e) of section 289, but the abstract indicates, incorrectly, that the count 11 offense was a violation of section 289, subdivision (d).

Finally, appellant argues, and the People again concede, that the minute order of the sentencing hearing indicates appellant was convicted in count 8 of violating section 288, subdivision (f), when, in fact, the count 8 offense was a violation of section 288a, subdivision (f).

We will direct the trial court to issue an amended abstract of judgment and an amended minute order, which correct these errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment].)

DISPOSITION

The judgment is modified to provide that appellant is awarded 807 days of presentence custody credit, consisting of 539 days of actual time credit and 268 days of conduct credit. The trial court is directed to prepare an amended abstract of judgment so indicating. The abstract of judgment shall also indicate the following: appellant was convicted, in counts 10 and 12, of felonies that are not listed as violent felonies in Penal Code section 667.5, subdivision (c), and appellant was convicted in count 11 of violating Penal Code section 289, subdivision (e). The court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

The trial court is also directed to prepare an amended minute order, which indicates appellant was convicted, in count 8, of violating Penal Code section 288a, subdivision (f).

As modified, the judgment is affirmed.