Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA367604 Norman Shapiro, Judge.
Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Assistant Attorney General, and Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.
CHANEY, J.
An information charged Keeoni David Johnson with two counts of assault on a peace officer with a semiautomatic firearm in violation of Penal Code section 245, subdivision (d)(2) (counts 1 and 2), one count of shooting at an occupied motor vehicle in violation of section 246 (count 3), and one count of possession of a firearm by a felon (with three priors) in violation of section 12021, subdivision (a)(1) (count 4). The information alleged that Johnson used a firearm within the meaning of sections 12022.53, subdivision (b), and 12022.5, subdivisions (a) and (d). Johnson stipulated to a prior for purposes of count 4.
Further statutory references are to the Penal Code.
Evidence presented at trial showed that on February 3, 2010, at approximately 12:30 a.m., Johnson fired shots at a moving vehicle that contained two arson investigators who were conducting an arson investigation. The investigators were in an unmarked Suburban vehicle with government exempt license plates. The vehicle was equipped with emergency lights and air horns, which were not activated at the time Johnson fired.
On counts 1 and 2 the trial court instructed the jury on the lesser included offense of assault with a firearm under section 245, subdivision (a)(2). On August 25, 2010, the jury returned guilty verdicts on the lesser included offenses. The verdict forms on counts 1 and 2 listed a violation of section 245, subdivision (a)(2), but listed the offense as assault with a semiautomatic firearm, a violation of a different Penal Code provision (section 245, subdivision (b)) than the one specified on the verdict forms. The jury also found Johnson guilty of shooting at an occupied motor vehicle and possession of a firearm by a felon.
At the sentencing hearing on September 7, 2010, the prosecutor stated that although “it appear[ed] the jury had convicted [Johnson] of assault with a semiautomatic firearm, ” both the verdict forms and the jury instructions listed the Penal Code provision for assault with a firearm, section 245, subdivision (a)(2), instead of the provision for assault with a semiautomatic firearm, section 245, subdivision (b). The prosecutor requested “that a nunc pro tunc correction be made on the jury verdict form to find [Johnson] guilty of assault with a firearm, not a semiautomatic firearm, to make it consistent and avoid any confusion down the road.” The trial court granted the request, modified the verdict forms and sentenced Johnson on counts 1 and 2 for assault with a firearm.
The trial court sentenced Johnson to 16 years and four months in prison: the upper term of four years on count 1 for assault with a firearm, plus the upper term of 10 years for the firearm enhancement under Penal Code section 12022.5, subdivision (a); and one year (one-third the mid-term of three years) on count 2 for assault with a firearm, plus one year and four months (one-third the mid-term of four years) for the firearm enhancement under section 12022.5, subdivision (a). The court also imposed and stayed the five-year mid-term on count 3 for shooting at an occupied vehicle, and the two-year mid-term on count 4 for possession of a firearm by a felon.
Johnson appealed. We appointed counsel to represent him on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436. On February 16, 2011, we advised Johnson that he personally had 30 days to submit any contentions or issues he wished us to consider. We also directed his appointed counsel to send the record and opening brief to Johnson immediately.
On March 25, 2011, Johnson filed a request for an extension of time to file a supplemental opening brief, which this court granted. With the extension, his brief was due on April 18, 2011. Johnson did not file a supplemental brief or submit any other papers to this court.
We have examined the record and are satisfied that Johnson’s counsel has complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
On May 24, 2011, we notified Johnson’s counsel and the Office of the Attorney General that in the absence of an objection we would order the trial court to correct a clerical error in the abstract of judgment, which incorrectly lists the crime for which Johnson was convicted on counts 1 and 2 as assault on a peace officer with a semiautomatic firearm instead of the correct crime of assault with a firearm. The judgment lists the correct Penal Code provision, section 245, subdivision (a)(2).
On May 25, 2011, we received a letter from the Office of the Attorney General stating that respondent has “no objection to modifying the abstract of judgment to accurately reflect appellant’s conviction in counts 1 and 2.” On June 2, 2011, we received a letter from Johnson’s counsel stating no objection to the proposed correction. Johnson’s opening brief correctly lists the crime for which Johnson was convicted on counts 1 and 2—assault with a firearm.
We direct the trial court to correct the abstract of judgment to list the crime in counts 1 and 2 as assault with a firearm under Penal Code section 245, subdivision (a)(2). As set forth above, although the jury’s verdicts on counts 1 and 2 listed the crime as assault with a semiautomatic firearm, the trial court granted the prosecutor’s request to correct these verdict forms nunc pro tunc “to find [Johnson] guilty of assault with a firearm, not a semiautomatic firearm.”
The Attorney General’s letter erroneously asserts that “the abstract of judgment should list the crime for which appellant was convicted in counts 1 and 2 as assault with a semiautomatic firearm.” It is clear from the record that Johnson was ultimately convicted of assault with a firearm, as we explain herein.
We also direct the trial court to correct the following additional clerical errors. The abstract of judgment and the September 7, 2010 minute order from the sentencing hearing correctly reflect that Johnson was sentenced to a total term of two years and four months on count 2. These documents incorrectly indicate, however, that the trial court imposed this total term on the offense. As set forth in the reporter’s transcript (and Johnson’s opening brief), the trial court sentenced Johnson to one year (one-third the mid-term of three years) for the offense, plus one year and four months (one-third the mid-term of four years) for the firearm enhancement under Penal Code section 12022.5, subdivision (a). Neither the abstract of judgment nor the September 7, 2010 minute order reflects the imposition of the firearm enhancement. As set forth below, we order these clerical errors corrected. On June 3, 2011, we notified Johnson’s counsel and the Office of the Attorney General that in the absence of an objection we would order the trial to correct these clerical errors. Neither side objected to the proposed corrections.
DISPOSITION
The superior court is directed to correct the following clerical errors to the extent they have not already been corrected: (1) in the abstract of judgment, list the crime for which Johnson was convicted on counts 1 and 2 as assault with a firearm under Penal Code section 245, subdivision (a)(2); and (2) in the abstract of judgment and the September 7, 2010 minute order, modify Johnson’s sentence on count 2 to reflect one year (one-third the mid-term) for the offense of assault with a firearm plus one year and four months for the firearm enhancement under Penal Code section 12022.5, subdivision (a). As so modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.