Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF130608, Thomas H. Cahraman, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A. Charges and Convictions
Defendant, Maurice Leonard Alberti, was charged with three felony counts: (1) possession of a firearm by a felon (count 1), (2) possession of armor-piercing ammunition (count 2), and (3) actively participating in a criminal street gang, namely, Four Corner Hustler Crips (FCHC) (count 3). It was alleged that counts 1 and 2 were committed for the benefit of FCHC. The jury found defendant guilty on all counts and also found the gang allegations true. Defendant was sentenced to 12 years in prison.
B. Contentions of Defendant
Defendant contends that (1) insufficient evidence supports the gang enhancements on counts 1 and 2, (2) insufficient evidence supports his conviction in count 3 for actively participating in a criminal street gang, and (3) his abstract of judgment and the sentencing minute order must be corrected because they erroneously reflect that he was sentenced to an additional term of one year for his prison prior when, in fact, he was not sentenced to any additional term for his prison prior.
We conclude that substantial evidence supports the jury’s findings that (1) defendant possessed the gun and ammunition “for the benefit of, at the direction of, or in association with [a] criminal street gang, with the specific intent to promote, further, or assist in . . . criminal conduct . . .” (Pen. Code, § 186.22, subd. (b)(1)), and (2) defendant was an active participant in FCHC (id., subd. (a)). We also conclude that the sentencing minute order and abstract of judgment must be corrected to reflect that (1) no sentence was imposed on defendant’s prison prior, and (2) defendant was sentenced to the middle term of three years, not two, for the gang enhancement on count 1.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL HISTORY
A. Defendant’s Arrest on June 1, 2006
On June 1, 2006, Riverside County Sheriff’s Deputies Andrew Liu and Amado Layos were assigned to the Problem-Oriented Police Team at the Moreno Valley station. The team dealt primarily with community-based policing, street level narcotics, and gang problems. The neighborhood, bounded by Adrienne, Courage, Pride, and Allied Streets, was commonly referred to by officers as the “Alley,” and was one of the most active areas in the city for drug sales and gang activity. That day, Deputy Liu, Deputy Layos, and several other deputies executed a search warrant at an apartment located at 22893 Adrienne Avenue in Moreno Valley, California. Inside the apartment were four or five people, including Lino Alberti (Lino), who is the brother of defendant Maurice Alberti.
Deputy Layos spoke with Lino and learned he was on formal probation for a felony narcotics offense. Deputy Layos decided to conduct a probation search of Lino’s residence. Deputy Liu, Deputy Layos, and approximately three other deputies went across the street to Lino’s apartment located at 22888 Adrienne Avenue. The deputies encountered defendant in a courtyard outside the apartment and noticed he had several tattoos which were gang or prison related. Deputy Liu spoke to defendant and learned he was on parole and was therefore subject to being searched. Defendant told the deputies he lived with his brother, Lino, and their grandmother at 22888 Adrienne Avenue, Apartment B. Defendant said his grandmother slept on the living room couch, and he and his brother shared the bedroom. Defendant testified at trial that he did not actually live at the apartment but was only “paroled there.” Deputies Liu and Layos entered the apartment to perform a compliance search of the bedroom while defendant stayed outside with other deputies.
There were two beds in the bedroom with a dresser between them. Deputy Layos began searching the dresser and found prison discharge papers and parole documents in defendant’s name indicating he had been released from prison on March 21, 2006. Concurrently, Deputy Liu went outside to ask defendant which bed was his. Defendant told the deputy he slept on the bed on the left side of the room. Deputy Liu returned to the bedroom and Deputy Layos searched the bed on the left side of the room, along the north wall. One of the pillows seemed unusually heavy. Inside the pillowcase was a gun case housing a six-shot .38-caliber Llama revolver. Deputy Layos handed the gun to Deputy Liu, who inspected it and found two expended rounds and four live rounds in the cylinder.
At trial, defendant said he was referring to the left side of the room from looking into the room through its window while standing outside the apartment.
The two expended rounds in the gun were “normal” lead bullets manufactured by CCI Blazer. The other four rounds did not bear a manufacturer’s mark and were Teflon coated, with cores made of steel or brass. Those characteristics make the rounds stronger and more likely to penetrate hard objects. They are referred to as armor-piercing rounds because they will generally penetrate Kevlar “bullet proof” vests which are designed to stop normal lead bullets. Armor-piercing rounds are illegal in California. Their purpose is to cause “great bodily damage” to persons wearing Kevlar vests, such as police officers.
Deputy Liu placed defendant under arrest and transported him to the Moreno Valley police station. There, defendant waived his Miranda rights and spoke to Deputy Liu. When asked whether he knew why he had been arrested, defendant said he knew he had been arrested because he had “the gun.” When asked why he had the gun, defendant said he had the gun for protection because he lived in a dangerous part of Moreno Valley. Defendant admitted he was a member of the FCHC gang from Lake Elsinore. Defendant would not tell Deputy Lui where he had obtained the gun.
Miranda v. Arizona (1966) 384 U.S. 436.
Defendant then asked why his brother Lino had been arrested. Deputy Liu told defendant that Lino had been arrested for violating his probation, which prohibited him from having access to any firearms. Defendant said that the gun did not belong to Lino; the gun belonged to defendant, although Lino knew about the gun.
B. Gang Activity and the FCHC of Lake Elsinore
Deputy Justino Flores testified as a gang expert for the prosecution. He was assigned to the Riverside County Gang Enforcement Task Force in Moreno Valley, and had been assigned to the Gang Association Team in Lake Elsinore from 2002 through 2005. Prior to that, he spent five and a half years prior on patrol in Lake Elsinore. During his time on patrol, he routinely contacted gang members to obtain information about the gangs in the City of Lake Elsinore. He had testified as an expert on gangs at least 30 times, including six cases involving the FCHC of Lake Elsinore.
Deputy Flores testified that gang members commit crimes in order to join a gang or to promote the gang in which they are members. Individuals would identify themselves as gang members by hand signs or tattoos. Only gang members could have gang tattoos and they had to earn their tattoos by committing crimes or “putting in work” for the gang. Gang members would commit acts of violence to instill fear in the community. The more crimes a gang member committed, the higher his status or respect was within the gang. The concept of respect was very important to gang members.
FCHC had 50 to 60 recognized members in June 2006. Their common symbol was “4CH,” their color was blue, and they claimed all of the City of Lake Elsinore as their territory. The primary activities of FCHC were sales of narcotics and violent crimes—specifically, assaults with deadly weapons and homicides. As an example of FCHC behavior, Deputy Flores described a shooting that occurred in the City of Lake Elsinore on May 8, 2004. The shooting involved defendant’s cousin, Darrick Floyd, and two other FCHC gang members, Al Hendricks and Eric Hunter. That day, several members of a rival gang were having a barbecue at an apartment complex located on turf claimed by FCHC. Hendricks got out of the vehicle he was in, ran into one of the apartments, then came back out and started shooting into the crowd. No one was hit by any of the bullets. Floyd and Hunter pleaded guilty to assault with a deadly weapon and admitted the crime was committed to benefit FCHC.
Although Floyd described himself as defendant’s cousin, defendant and his brother Lino described Floyd as their half brother.
C. Gang Affiliation of Defendant
At the time of trial, Deputy Lance Colmer had spent five years in the Riverside Sheriff’s Department’s Special Enforcement Team Gang Unit in Moreno Valley. He was currently the senior officer on the team. He visited the “Alley” every day because it was a violent area and one of the most active areas in the city for gang activity and drug sales, with a very high population of parolees and probationers. He often made contact with gang members, including defendant’s cousin, Floyd. Two weeks after defendant was arrested, Floyd told the deputy that both he (Floyd) and defendant were members of FCHC. Floyd showed the deputy the tattoo on his back that said, “Four Corner Hustlers.”
The prosecution’s gang expert, Deputy Flores, was personally familiar with defendant and had seen him in the company of other FCHC gang members in Lake Elsinore, including Hunter and Floyd. He first noticed defendant associating with FCHC members when he began working on patrol in Lake Elsinore in the mid- to late-1990’s, and continued to see him associate with FCHC while he later worked on the gang unit in Lake Elsinore. Defendant admitted to Deputy Flores that he was a member of FCHC. Deputy Flores identified a felony complaint and a felony plea form in which defendant pleaded guilty, on January 11, 2005, to discharging a firearm at an occupied vehicle or residence. (§ 246.) The shooting occurred on June 21, 2004. Although Deputy Flores chose not to file a gang allegation in that case, in his opinion the crime was committed for the benefit of FCHC.
Deputy Flores also identified a photograph of defendant taken on September 26, 2002, which depicted a tattoo of the letter “F” on the back of his left arm and the letter “C” on the back of his right arm. The deputy also identified a photograph of defendant taken on June 1, 2006, the day defendant was arrested on the current charges. The more recent photograph depicted additional tattoos, including the number “4” on defendant’s chest, and the letters “L” and “E,” followed by Roman numeral “IV” on his stomach. The additional tattoos also included the words “Hustler,” “Crips,” “4CH,” and “Blue Devil,” as well as the words “Crip,” “West,” and “Side,” and the number “4.” The more recent tattoos all represented Lake Elsinore and FCHC. None were shown in the photographs of defendant taken on September 26, 2002.
Based on his knowledge of the customs and habits of criminal street gangs and his familiarity with defendant, Deputy Flores opined that defendant possessed the handgun and armor-piercing ammunition, on June 1, 2006, for the benefit of FCHC. It was also Deputy Flores’s opinion that defendant was an active member of FCHC on June 1, 2006. His opinions were based on his personal knowledge of defendant and FCHC, and his knowledge that FCHC, for the most part, used firearms in committing their crimes. He explained that, in the gang culture, gang members use weapons, in this case handguns and bullets, to commit crimes but do not hold onto them; they pass them to other gang members. This way, if a gang member who committed a crime with the weapon is searched, the weapon will not be found with that gang member.
D. Defense Evidence
Defendant’s younger brother, Lino, testified in defendant’s defense. Lino was 20 years old at the time of trial in February 2007. He said he lived in Hemet on June 1, 2006, but would occasionally stay at his grandmother’s apartment in Moreno Valley. He claimed that the gun the deputies found in the bedroom belonged to him. He explained that, a few days before June 1, 2006, he brought a loaded .38-caliber handgun in a gun bag to his grandmother’s apartment. He placed the gun in the top drawer of the dresser in the bedroom and did not tell defendant about it. When he was arrested on June 1 for violating his probation for having access to a firearm, he admitted he knew the gun was in the bedroom but denied that he owned the gun because he feared doing so. Lino denied being a member of FCHC and also denied knowing that either defendant or Floyd were members of FCHC.
Defendant also testified. Defendant was 22 years old at the time of trial. He claimed that on June 1, 2006, he was paroled to his grandmother’s apartment on Adrienne Street, but he was actually living elsewhere in Moreno Valley. He sometimes stayed at the apartment and kept most of his property there, including his clothes and paperwork.
Defendant denied having any knowledge of the gun found in the bedroom. He had not spent the night before the arrest at his grandmother’s apartment and only happened to be outside when the deputies arrived. He also denied speaking to any of the deputies on the day he was arrested and claimed he never admitted that the gun was his. He admitted being a member of FCHC and associating with the members of the gang, but he denied being an active member of the gang.
III. DISCUSSION
A. Substantial Evidence Supports the Gang Enhancements on Counts 1 and 2
Defendant contends that insufficient evidence supports the gang enhancements on counts 1 and 2. He specifically argues there was no evidence that the crimes were gang-related or that he committed the crimes for the benefit of FCHC or any gang members other than himself. Instead, he argues, the evidence showed only that he possessed the firearm and ammunition solely for his own benefit.
In reviewing a criminal conviction for the sufficiency of the evidence, “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In making this determination, we must presume every fact in support of the judgment which the jury could have reasonably deduced from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) The same standard of review applies in determining whether sufficient evidence supports a gang enhancement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Section 186.22, subdivision (b)(1) provides for enhanced sentences on certain felonies that are “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 623-624.) “[T]he specific intent required by the statute is ‘to promote, further, or assist in any criminal conduct by gang members.’” (People v. Hill (2006) 142 Cal.App.4th 770, 774.)
A criminal street gang is defined in section 186.22, subdivision (f) as “any ongoing organization, association, or group of three or more persons, whether formal or informal . . . having a common name or common identifying sign or symbol . . . .” Here, defendant does not dispute that FCHC was a criminal street gang on June 1, 2006, and at all other relevant times.
Here, substantial evidence showed that defendant specifically intended to possess the .38-caliber revolver and armor-piercing ammunition “for the benefit of, at the direction of, or in association with” FCHC. (§ 186.22 subd. (b)(1).) First, defendant admitted he was a member of FCHC on June 1, 2006. He also told Deputy Lui, on June 1, 2006, that the gun and armor-piercing ammunition belonged to him. Moreover, one of the primary activities of FCHC was the commission of violent crimes—specifically, assault with deadly weapons and homicides. The gun found in defendant’s bedroom was fully loaded with armor-piercing ammunition. Together, the gun and ammunition could be effectively used to penetrate Kevlar vests worn by law enforcement.
Furthermore, Deputy Flores opined that “[gangs] use [guns] to commit crime[s] . . . [then] pass them on to the next gang member.” The gang benefits when one gang member holds a gun for another gang member who committed a crime. If law enforcement later executes a search warrant on the gang member who committed the crime, Deputy Flores testified that, typically, “the handguns will not be found with that person.”
In addition, defendant had been out of prison only 72 days when he was arrested on June 1, 2006, for possessing the gun and armor-piercing ammunition. He had acquired several new FCHC tattoos during a one-month period in late 2004, early 2005. And, following his release from prison, he was paroled to an apartment in the “Alley,” an area known for gang-related activities. Defendant also continued to “hang out” with a fellow gang member, Floyd, following his release from prison.
Based on this evidence, including Deputy Flores’s gang expert testimony, the jury could have reasonably inferred that defendant possessed the gun and armor-piercing ammunition for the benefit of FCHC with the “specific intent to promote, further, or assist” FCHC in the commission of criminal activity. (186.22 subd. (b)(1).)
Relying on Garcia v. Carey (9th Cir. 2005) 395 F.3d. 1099 (Garcia), defendant argues that the plain language of section 186.22, subdivision (b)(1) requires proof that he possessed the gun and armor-piercing ammunition with the specific intent to benefit FCHC in the commission of other criminal conduct, that is, criminal conduct other than the crimes he committed, possession of the gun and armor-piercing ammunition. In Garcia, the Ninth Circuit interpreted the phrase, “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as requiring proof that the defendant committed the underlying crime with the specific intent to assist gang members in the commission of criminal conduct apart from or in addition to the crime the defendant committed. (Garcia, supra, at p. 1103.) And here, defendant argues, there was no evidence he possessed the gun or the ammunition with the specific intent to assist FCHC in the commission of criminal conduct other than the crimes he committed.
We disagree with defendant’s reasoning. First, this court is not bound by a federal court’s interpretation of state law. (People v. Burnett (2003) 110 Cal.App.4th 868, 882 [federal authority is not binding in matters involving state law].) Furthermore, two California courts have expressly disagreed with the Garcia court’s interpretation of the statute as being contrary to its plain language. (People v. Romero (2006) 140 Cal.App.4th 15, 19 [plain language of § 186.22, subd. (b)(1) requires specific intent to promote, further, or assist in “‘any criminal conduct by gang members,’” rather than other criminal conduct], People v. Hill, supra, 142 Cal.App.4th at p. 774 [same].)
We also decline to follow Garcia. As the courts in Hill and Romero observed, the statute expressly requires a specific intent to further “any criminal conduct” by gang members, and this includes the crime the defendant committed. (People v. Hill, supra, 142 Cal.App.4th at p. 774; People v. Romero, supra, 140 Cal.App.4th at p. 19.) The statute does not require a specific intent to promote gang members’ criminal activity beyond or in addition to the crime the defendant committed.
Defendant also relies on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) for the proposition that an expert’s opinion, standing alone, is insufficient to show that a defendant specifically intended to promote, further, or assist in criminal gang activity. Frank S. is distinguishable on its face. There, a minor was found in possession of a concealed knife during a traffic stop. The minor said he was affiliated with the Nortenos gang and needed the knife to protect himself against members of a rival gang who believed he supported the Nortenos. (Id. at p. 1195.) A gang expert testified that, in her opinion, the minor possessed the knife to protect himself and to benefit the Nortenos, because the knife would “help[] provide . . . protection” for members of the Nortenos and the minor in the event one of them was assaulted. (Id. at pp. 1195-1196.)
The court in Frank S. concluded there was insufficient evidence that the minor possessed the knife with the specific intent to benefit his gang. (Frank S., supra, 141 Cal.App.4th at p. 1199.) The court criticized the expert’s opinion as being insufficiently supported by the evidence, including the customs and habits of criminal street gangs and the circumstances surrounding the minor’s possession of the knife. As the court pointed out, there was no evidence that “the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife . . . .” (Ibid.) Instead, the expert “simply informed the judge of her belief” that the minor possessed the knife to benefit the Nortenos, and this was an improper opinion concerning the minor’s specific intent. (Id. at pp. 1197-1199; People v. Killebrew (2002) 103 Cal.App.4th 644, 658-659 [gang expert cannot properly express opinion on the subjective knowledge and intent of an individual gang member].) The court reasoned, “To allow the expert to state the . . . specific intent . . . without any other substantial evidence opens the door for prosecutors to enhance many felonies as gang-related and extends the purpose of the statute beyond what the Legislature intended.” (Frank S., supra, at p. 1199.)
Here, in contrast to the insufficiently supported expert opinion in Frank S., Deputy Flores’s opinion that defendant possessed the gun and armor-piercing ammunition for the benefit of FCHC was amply supported by the evidence. At trial, defendant admitted to being a member of FCHC on the date he was arrested. He had only been on parole for 72 days prior to his arrest on June 1, 2006, and received several FCHC gang tattoos in late 2004, early 2005. He was paroled to a residence located in the “Alley,” one of the most active areas for gang activity, and he continued to “hang out” with a fellow gang member, Floyd, after his release from prison. Furthermore, Deputy Flores testified that one of the customs and habits of gang members was to possess guns for other gang members. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931 [substantial evidence supported gang expert’s opinion that crime was gang-related; the expert’s opinion was “properly rooted in the evidence presented at trial” and on the expert’s testimony concerning the customs and habits of criminal street gangs].)
B. Substantial Evidence Supports Defendant’s Conviction in Count 3 for Actively Participating in a Criminal Street Gang
Defendant contends that insufficient evidence supports his conviction in count 3 for actively participating in a criminal street gang. (§ 186.22, subd. (a).) He argues that, although he admitted he was a member of FCHC, there was no evidence he was an “active” member of the gang. We disagree.
As set forth above, in reviewing a conviction for the sufficiency of the evidence, “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp, supra, 26 Cal.4th at p. 1128.) In making this determination, we must presume every fact in support of the judgment which the jury could have reasonably deduced from the evidence. (People v. Rayford, supra, 9 Cal.4th at p. 23.) The same standard of review applies in cases in which the People rely mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)
Section 186.22, subdivision (a) criminalizes the active participation in a criminal street gang. It provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment . . . .” To prove that defendant violated the statute, the prosecution had to show that defendant (1) actively participated in FCHC, a criminal street gang, (2) with knowledge that its members were engaging or had engaged in a pattern of criminal gang activity, and (3) willfully promoted, furthered, or assisted in any felonious criminal conduct by members of the gang. (People v. Robles (2000) 23 Cal.4th 1106, 1115.)
Defendant concedes that FCHC was a criminal street gang and that he knew, on June 1, 2006, that FCHC gang members were engaged in or had engaged in a pattern of criminal gang activity. However, he denies he actively participated in FCHC or that he intended to further, promote or assist the gang when he possessed the handgun and armor-piercing ammunition.
As discussed above, substantial evidence supports the jury’s finding that defendant possessed the gun and ammunition with the specific intent to benefit FCHC. (§ 186.22, subd. (b)(1).) And, as defendant concedes, the specific intent required for the substantive offense of active participation in a gang is not meaningfully distinguishable from the specific intent element of section 186.22, subdivision (b)(1), which is “‘to promote, further, or assist in any criminal conduct’” by members of the gang. (See People v. Ngoun (2001) 88 Cal.App.4th 432, 436.) Thus here, the only remaining question is whether there is substantial evidence that defendant actively participated in FCHC by possessing the gun and ammunition for the benefit of FCHC. (People v. Robles, supra, 23 Cal.4th at p. 1115.)
To be an active participant in a criminal street gang within the meaning of section 186.22, subdivision (a), the defendant must have the specific intent to actively participate in the gang—apart from the specific intent to commit the underlying felony, here the possession of the gun and ammunition. (People v. Herrera (1999) 70 Cal.App.4th 1456, 1467-1468.) In addition, defendant’s involvement with the gang must be more than nominal or passive. (People v. Castenada (2000) 23 Cal.4th 743, 747-748). Active participation does not require the defendant to hold a position of leadership in the gang or devote a substantial part of his time or efforts to the gang. (Ibid.)
Here, substantial evidence showed that defendant specifically intended to actively participate in criminal conduct by FCHC by possessing the gun and armor-piercing ammunition. As discussed, defendant admitted he was a member of FCHC on June 1, 2006, the date of his arrest, although he denied being an “active” member at that time. Nevertheless, the evidence showed he (1) obtained additional gang tattoos in late 2004, early 2005, (2) continued to associate with a member of FCHC, Floyd, following his release from prison, and (3) obtained the gun and armor-piercing ammunition within the 72-day period following his release from prison on March 21, 2006 and June 1, 2006. Furthermore, Deputy Flores testified that gang members typically hold guns and ammunition for other gang members. Based on this evidence, the jury could have reasonably inferred that, in possessing the gun and ammunition, defendant specifically intended to actively participate in FCHC, and the nature of his participation was not merely nominal or passive.
C. Defendant’s Abstract of Judgment and Sentencing Minute Order Must Be Corrected
Lastly, defendant claims his abstract of judgment and the sentencing minute order must both be corrected because they erroneously reflect that he was sentenced to an additional term of one year for his prison prior, when in fact he was not sentenced to any additional term for his prison prior. The People agree that the abstract and minute order must be corrected, but argue they should be corrected to show that a one-year term was imposed but stayed on the prison prior. The People are incorrect. As defendant points out, no term was imposed on the prison prior.
Defendant admitted and the court found that defendant had one prison prior. (§ 667.5, subd. (b).) Defendant also admitted and the court found that defendant had a prior conviction for violating section 246, which constituted both a prior strike conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)). In orally pronouncing judgment, the court imposed a term of five years for the prior serious felony conviction, but imposed no terms for the prison prior or the prior strike conviction. The oral pronouncement of judgment controls over the sentencing minute order and the abstract of judgment, and this court has inherent authority to correct clerical errors in court records, including minute orders and abstracts of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)
The court also orally pronounced that it was sentencing defendant to the middle term of three years for the gang enhancement on count 1, but the abstract of judgment erroneously states that two years were imposed on that gang enhancement. The People point out that this error must be corrected. We agree with the People on this point.
IV. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to correct defendant’s abstract of judgment and the sentencing minute order to reflect that: (1) no sentence was imposed on defendant’s prison prior, and (2) defendant was sentenced to the middle term of three years, not two years, for the gang enhancement on count 1. The trial court is further directed to forward a copy of defendant’s corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Richli, Acting P.J. Miller, J.