Filed 8/25/14 P. v. Aristakesian 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C075690
Plaintiff and Respondent, (Super. Ct. No. 13F00228)
v.
ARTOUR ARISTAKESIAN,
Defendant and Appellant.
Defendant Artour Aristakesian pled no contest to exhibiting lewd material to a
minor (count one), persuading a minor to model for matter containing sexual conduct
(count two), and 28 counts of lewd acts with a child under age 14 (counts three through
thirty).
Defendant was sentenced to prison for 24 years eight months, consisting of the
upper term of eight years on count three, eight consecutive terms of two years each on
counts four through eleven, and a consecutive term of eight months on count one.
Concurrent terms were imposed on counts two and twelve through thirty.
1
Defendant was awarded 331 days’ custody credits and 50 days’ conduct credits.
He was ordered to make restitution to the victims of violent crime program and to pay a
$10,000 restitution fine, a $10,000 restitution fine suspended unless parole is revoked, a
$300 sex crime fine plus $130 in penalty assessments, a $331.98 booking fee, and a
$60.18 classification fee.
Defendant’s trial counsel filed a timely notice of appeal indicating the appeal was
based on sentencing or other matters occurring after the plea. Two days later, defendant
filed a pro. per. notice of appeal and request for certificate of probable cause. Defendant
indicated that the appeal was based on sentencing and additional matters. He did not
obtain a certificate of probable cause.
FACTS
On or about and between December 11, 2006, and December 10, 2011, the date
range that reflects the victim R. D.’s ages from nine to 13 years, defendant exhibited
harmful matter within the meaning of Penal Code1 section 313. This included
pornographic images and videos of matter such as naked adults having intercourse.
Defendant exhibited the material to R. D. with the intent of arousing, appealing to, and
gratifying the lusts, passions, and sexual desires of himself and the minor and for the
purpose of seducing her.
Defendant also, while possessing facts from which he reasonably should have
known that R. D. was a minor under age 14, had her pose or model and took photographs
of her, in order to prepare matter containing sexual conduct; specifically, he took
photographs, full body photographs, and also photographs focusing on her genitalia
without clothing.
1 Further undesignated statutory references are to the Penal Code.
2
On at least one occasion, defendant committed a lewd and lascivious act;
specifically, he placed his mouth on R. D.’s breasts and did so with the intent of arousing,
appealing to, and gratifying the lusts, passions, and sexual desires of the defendant and
the child.
On at least one occasion, he committed an additional lewd and lascivious act,
specifically, having the victim place her hand on his penis with the same intent of
arousing and appealing to and gratifying the lusts, passions, and sexual desires of himself
and the child.
On at least two occasions, he had the victim place her mouth on his penis with the
intent of arousing, appealing to, and gratifying the lusts, passions, and sexual desires of
himself and the child.
And on at least 24 occasions, the defendant placed his mouth on the victim’s
vaginal area with the intent of arousing, appealing to, and gratifying the lusts, passions,
and sexual desires of the said defendant and the said child.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436.) 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.
Our review of the record reveals several errors at sentencing. First, section 288,
subdivision (a) (lewd acts with a child under age 14) has a sentencing triad of three, six,
or eight years. The probation officer recommended that defendant be sentenced for these
offenses (counts twelve through thirty) to consecutive one-third middle terms of two
years each. Rejecting this recommendation in part, the trial court chose concurrent rather
than consecutive sentences and imposed the recommended, albeit unauthorized, terms of
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two years each. On remand, if the trial court selects concurrent sentences, it shall
resentence defendant on these 19 counts to one of the three terms specified in the triad
and issue an amended abstract of judgment.
Second, defendant’s count two conviction (persuading a minor to model) is a
violation of section 311.4, subdivision (c). Unlike subdivision (a) of that statute,
subdivision (c) is a straight felony and its sentencing triad is 16 months, two or three
years. (§§ 18, subd. (a), 311.4, subd. (c).) Because defendant has present violent felony
convictions and is required to register as a sex offender, he is required to serve this term
in state prison. (§ 1170, subd. (h)(3).) Thus, the trial court’s sentence to county jail for
one year concurrent to the prison term is unauthorized. On remand, the court shall
impose a lawful sentence on this count.
Third, on part 1 of the abstract of judgment, counts four through eight are
sentenced as one-third consecutive terms but the boxes that so reflect are not checked.
This error can be corrected on the amended abstract of judgment.
Fourth, although the trial court orally pronounced a $300 sex crime fine plus
“$130 in penalties and assessments,” those penalties and assessments are not identified in
the oral pronouncement, the clerk’s minutes, or the abstract of judgment. On remand, the
trial court shall identify each applicable penalty and assessment in its oral pronouncement
of sentence and shall list them in the minutes and the abstract.
Fifth, while the oral pronouncement of judgment did not include the imposition of
a court operations assessment under section 1465.8 or a conviction assessment under
Government Code section 70373, the clerk’s minutes and the abstract of judgment do
include these assessments ($1,200 and 900, respectively). To be valid, these assessments
must be orally pronounced by the court.
Having undertaken an examination of the entire record, other than those errors
noted above, we find no arguable error that would result in a disposition more favorable
to defendant.
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DISPOSITION
The judgment of conviction is affirmed. Defendant’s sentence is vacated and the
matter is remanded to the trial court for resentencing on counts two and twelve through
thirty, for proper oral pronouncement of all the applicable penalties and assessments, and
for preparation of an amended abstract of judgment that properly indicates one-third
consecutive terms on counts four through eight and properly identifies all applicable
penalties and assessments upon the sex crime fine.
ROBIE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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