Opinion
G044347 Super. Ct. No. 05NF0822
01-24-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JESUS GONZALEZ, Defendant and Appellant.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed and remanded.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Deputy Attorney General, for Plaintiff and Respondent.
Before Rylaarsdam, Acting P. J., Moore, J., and Ikola, J.
A jury convicted appellant, Daniel Jesus Gonzalez, of attempted premeditated murder, assault with a firearm, and active participation in a criminal street gang. On appeal, Gonzalez contends the trial court failed to impose sentence in counts two and three of the information, and the sentencing minute order and abstract of judgment need to be corrected to accurately reflect his sentence.
I
FACTS
Daniel Jesus Gonzalez was convicted of the attempted premeditated murder of Buddy Robles (Pen. Code, § 187, subd. (a), § 664, subd. (a), count 1), assault with a firearm (§ 245, subd. (a)(2), count 2); and active participation in a criminal street gang (§ 186.22, subd. (a), count 3). As to counts 1 and 2, the jury found it true that Gonzalez committed the attempted murder for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) As to count 1, the jury also found it true that Gonzalez personally discharged a firearm causing great bodily injury to the victim. (§ 12022.53, subd. (d).) As to count 2, the jury also found true the firearm enhancement allegation. (§ 12022.5, subd. (a).) Gonzalez admitted he had a prior strike conviction for active participation in a street gang. (§ 186.22, subd. (a).)
All further statutory references are to the Penal Code.
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According to the reporter's transcript of the sentencing hearing, the trial court sentenced Gonzalez to state prison for a term of life with the possibility of parole after 30 years on count 1. The court also imposed a consecutive 25 years to life term for the personal discharge of a firearm causing great bodily injury, and a determinate 5-year term for his prior serious felony conviction. Pursuant to section 654, the court stayed the sentence on counts 2 and 3 and the accompanying enhancement allegations.
II
DISCUSSION
1. The Sentence for Counts 2 and 3 Should Be Imposed, then Stayed
Once a defendant is convicted "[a] trial court must impose sentence on every count but stay execution as necessary to implement section 654." (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) In this case, the trial court stayed the sentence, without first imposing the sentence in counts two and three. The Attorney General concedes, and we agree, the sentence for counts 2 and 3 should first be imposed before the trial court stays the execution of the sentence pursuant to section 654.
2. Discrepancies in the Sentencing Require Clarification on Remand
A review of the record also revealed several discrepancies between the trial court's oral pronouncement of the judgment and the minute order and abstract of judgment. The reporter's transcript of the sentencing hearing indicates the trial court sentenced Gonzalez to state prison for a term of life with the possibility of parole after 30 years on count 1, a consecutive 25 years to life term for the personal discharge of a firearm causing great bodily injury, and a determinate 5-year term for his prior serious felony conviction. However, the minute order and abstract of judgment indicate Gonzalez was sentenced to a term of life on count 1, a consecutive 30 years to life term, a consecutive 25 years to life term, and a determinate 5-year term. When a discrepancy exists between the court's oral pronouncement of judgment and the clerk's written account in the minute order and abstract of judgment, the oral pronouncement of the sentence controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
DISPOSITION
The judgment is affirmed. The matter is remanded for the trial court to impose and then stay the execution of the sentence in counts two and three, and to correct the abstract of judgment to reflect the oral pronouncement of judgment of the court at the sentencing hearing on October 7, 2010. Once corrected, the clerk shall transmit a copy of the corrected abstract of judgment to the parties and the Department of Corrections and Rehabilitation forthwith.