Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Super. Ct. No. 30404A, John D. Kirihara, Judge.
Jeffrey S. Kross, 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, Judy Kaida and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Gomes, J. and Kane, J.
Defendant Agustine Covarrubias contends, and the People concede, that the abstract of judgment requires correction to conform to the trial court’s sentencing orders.
Defendant was convicted of four counts: murder (count 1), attempted murder (counts 2 and 3), and participating in a criminal street gang (count 4). According to the reporter’s transcript, the trial court sentenced defendant to a total of 24 years eight months, as follows: on count 1, life without the possibility of parole; on count 2, 19 years (the upper term of 9 years, plus 10 years for the gang enhancement), to be served consecutively; on count 3, five years 8 months (one-third of 17 years -- the middle term of seven years plus 10 years for the gang enhancement); and on count 4, three years to be served concurrently. In addition, the court imposed a $5,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b).
The abstract of judgment does not conform to the sentence imposed by the court. Rather than a total term of 24 years eight months, the noted total term is 36 years, due to the clerk’s failure to reduce the 17-year term on count 3 to one-third. Further, a second $5,000 restitution fine is noted pursuant to Penal Code section 1202.45, despite the impossibility of parole. We agree with the parties that the abstract requires correction.
DISPOSITION
The trial court is instructed to correct the abstract of judgment to (1) show that the sentence and the enhancement on count 3 are both reduced to one-third and that the total term is 24 years eight months, and (2) eliminate the $5,000 restitution fine imposed pursuant to Penal Code section 1202.45. The trial court is instructed to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.