Full Opinion

Filed 10/29/26 P. v. Kirby CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Trinity) THE PEOPLE, C104023 Plaintiff and Respondent, (Super. Ct. No. 24F035) v. CHRISTOPHER RICHARD KIRBY, Defendant and Appellant. Appointed counsel for defendant Christopher Richard Kirby asked this court to review the record, determine whether there are any arguable issues on appeal, and order the abstract of judgment corrected to address a clerical error. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has not filed a supplemental brief. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm. Agreeing with appointed counsel that the abstract of judgment contains a clerical error, we direct the trial court to prepare a corrected abstract of judgment. Undesignated statutory references are to the Penal Code. BACKGROUND I. Facts When defendant was 18 years old, he started dating a 15-year-old girl (the first victim). Shortly thereafter, while the first victim was still 15 years old, defendant began to frequently have sex with her and request she take and send him nude photographs of 1 herself. She acquiesced and sent him hundreds of images over the course of their four- year relationship. A month after their relationship ended, defendant sent a nude image of the first victim, which appeared to be taken when she was 18 years old, to another user online. Defendant did not have her permission to do so. A search of defendant’s electronic devices after their relationship concluded revealed multiple nude images of the first victim, including images taken when she was 15 years old. Defendant also sought out and obtained leaked nude images and sexually explicit videos of a different 16-year-old girl (the second victim). A month after his relationship with the first victim ended, he offered to trade those images and videos of the second victim for other photos and videos over the internet. That same day, he distributed one of those videos and several images to multiple users via social media. Two months after the relationship between defendant and the first victim ended, defendant used an alias to message her fifteen-year-old sister (the third victim) on social media, asking if the third victim “would ever sell nudes.” According to defendant, he “planned to use the pictures against [the first victim], as he was mad at her.” The third victim stated she refused defendant’s request. A subsequent search of defendant’s electronic devices revealed images the third victim had taken of herself when she was “around thirteen or fourteen” and login information for a social messaging account belonging to her stored in the “notes” application on defendant’s phone. II. Procedural History The prosecution charged defendant with unlawfully contacting and communicating with a minor with the intent to commit a specific offense involving that minor (§ 288.3, subd. (a)), advertising for sale and distribution obscene matter depicting a minor (§ 311.1), committing a lewd act upon a child under 14 years of age (§ 288, subd. (a)), exhibiting a minor in pornography (§ 311.2, subd. (b)), two counts of possessing child or youth pornography (§ 311.11, subd. (a)), and engaging in an act of unlawful 2 sexual intercourse with a minor not more than three years younger than the perpetrator (§ 261.5, subd. (b)). Defendant entered an open plea of guilty to unlawfully contacting a minor, exhibiting a minor in pornography, and unlawfully engaging in sexual intercourse with a minor in exchange for the prosecution’s dismissal of the charge of committing a lewd act and dismissal of the other remaining charges with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. Prior to sentencing, the trial court reviewed the probation report and sentencing briefs from each side. The court also heard a statement from defendant and arguments from counsel on both sides. The court noted defendant had a few mitigating factors in his age, remorse, and lack of a criminal record. The court further noted defendant had multiple aggravating factors in the vulnerability of the victims and defendant’s attempt to have a 15-year-old minor send him images, use of an alias in that attempt, initial denial of his offenses, possession of over 50 images of child pornography, and abuse of the trust of one of his victims. The court concluded the aggravating factors outweighed the mitigating factors, denied probation, and sentenced defendant to an aggregate term of three years and six months, which comprised the middle term of three years for exhibiting a minor in pornography and a consecutive term of six months for unlawfully contacting a minor. The court also imposed several fines and fees, including a $1,170 fine comprising a $300 sex offender fine pursuant to Penal Code section 290.3, a $300 penalty assessment pursuant to Penal Code section 1464, a $30 penalty assessment pursuant to Government Code section 76104.6, a $120 penalty assessment pursuant to Government Code section 76104.7, a $150 penalty assessment pursuant to Government Code section 70372, subdivision (a)(1), a $210 penalty assessment pursuant to Government Code section 76000, subdivision (a)(1), and a $60 penalty assessment pursuant to section 1465.7. Defendant did not object. Defendant timely appeals without a certificate of probable cause. 3 DISCUSSION Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) In that brief, counsel also asked this court to order correction of the second amended felony abstract of judgment, which incorrectly lists the sexual offender fine imposed pursuant to section 290.3 as being imposed pursuant to section 1202.5. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. We agree with appointed counsel that the abstract of judgment incorrectly lists a $1,170 fine imposed pursuant to section 1202.5. At sentencing, the trial court orally imposed a $1,170 fine consisting of a sexual offender fine pursuant to section 290.3 and penalty assessments on that fine. The trial court did not orally impose any fine pursuant to section 1202.5. However, the second amended abstract of judgment shows the aggregate $1,170 fine as being imposed pursuant to section 1202.5 and excludes the fine and penalty assessments listed above. It also fails to “detail the amounts of and statutory basis for the base fine and each of the penalty assessments imposed.” (People v. Johnson (2015) 234 Cal.App.4th 1432, 1459.) When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We have inherent authority to correct errors to accurately reflect the “oral judgments of sentencing courts.” (Id. at p. 185.) We therefore order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. 4 DISPOSITION The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment replacing the $1,170 fine per section 1202.5 with the following: a $300 sex offender fine per Penal Code section 290.3, a $300 penalty assessment per Penal Code section 1464, a $30 penalty assessment per Government Code section 76104.6, a $120 penalty assessment per Government Code section 76104.7, a $150 penalty assessment per Government Code section 70372, subdivision (a)(1), a $210 penalty assessment per Government Code section 76000, subdivision (a)(1), and a $60 penalty assessment per Penal Code section 1465.7. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. /s/ MESIWALA, J. We concur: /s/ HULL, Acting P. J. /s/ ROBIE, J. 5