Opinion
F054157
6-30-2008
THE PEOPLE, Plaintiff and Respondent, v. SERGIO ESPINOZA, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
OPINION
THE COURT
Appellant, Sergio Espinoza, pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitted a great bodily injury enhancement (Pen. Code, § 12202.7, subd. (a)) and a gang enhancement (Pen. Code, § 186.22, subd. (a))
On October 26, 2007, the court sentenced Espinoza to an aggregate 15-year term, the mitigated term of 2 years for the assault offense, a 3-year great bodily injury enhancement, and a 10-year gang enhancement. On appeal, Espinoza contends his abstract of judgment contains an error. We agree and will direct the trial court to issue a corrected abstract of judgment. In all other respects we will affirm.
FACTS
On November 5, 2006, Edgar Maravilla, Johnny Carter, and Rudy Garza were walking on Cleveland Avenue in Madera when approximately 10 to 15 males ran toward them and began assaulting them. During the melee, Carter and Garza were each stabbed once in the back.
Madera police responded to scene and were told by a witness the direction that the suspects fled. The officers searched the area and detained John Flores, Santiago Espinoza, Omar Perez, and appellant, Sergio Espinoza. During a police interview, Espinoza admitted being a Sureño gang member and stabbing the two victims because he thought they were Norteño gang members.
DISCUSSION
The reporters transcript of Espinozas sentencing hearing indicates that during the hearing the court stated, "Recommend release to Immigration upon completion of his sentence." (Italics added.) However, the minute order of the hearing and the abstract of judgment both state, "Release to Immigration upon completion of commitment." Espinoza contends the abstract of judgment erroneously directs, rather than recommends, that he be released to immigration authorities upon his completion of his sentence. Espinoza further contends the court does not have the authority to order his release to immigration authorities. Thus, according to Espinoza, the abstract of judgment should be amended to conform to the courts oral pronouncement so that it does not contain an unauthorized directive by the trial court. Respondent concedes that the abstract should be amended to conform to the courts oral pronouncement of judgment. We need not decide whether the court had authority to order, rather than recommend, that Espinoza be released to immigration authorities upon completion of his commitment because we accept respondents concession.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls." (People v. Zachery (2007) 147 Cal.App.4th 380, 385.) Therefore, we will order the trial court to issue an amended abstract of judgment that accurately reflects the courts oral pronouncement of judgment.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment which states that the trial court only "recommended" release of Espinoza to immigration authorities once he completed his commitment. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.