Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment from the Superior Court in Los Angeles County, Los Angeles County Super. Ct. No. NA066121, James B. Pierce, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
Pursuant to a no contest plea, appellant Curtis Andrew Brewer was convicted of two counts of second degree robbery, one count of felon in possession of a firearm, and additional charges relating to firearms use, firearms discharge, and a prior robbery conviction. The evidence at the preliminary hearing showed that he committed the armed robberies on two different days, fired a gun during one of the crimes, and had a loaded gun in his car. He was sentenced to a total of 31 years in prison. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. He was notified that he could file his own brief, and did so. He contends that his sentence was improperly computed.
We requested supplemental briefing from both sides, on the issue raised by appellant’s supplemental brief and on apparent differences between the abstract of judgment and the sentence that was imposed at the sentencing hearing.
Counts 1 and 2 alleged that appellant committed two second degree robberies in violation of Penal Code section 211. Count 1 had an allegation of firearm use (§ 12022.53, subd. (b)). Count 2 had allegations both of firearms use and firearms discharge (§ 12022.53, subds. (b) & (c)). Count 3 alleged possession of a firearm by a felon (§ 12021, subd. (a)(1)). The underlying felony on count 3 was a 1997 conviction for robbery. For all three counts, the 1997 robbery was alleged as a prior strike conviction (§§ 1170.12, subds. (a)-(d)) and a prior prison term conviction (§ 667.5, subd. (b)). For counts 1 and 2, the 1997 robbery was also alleged as a prior serious felony conviction (§ 667, subd. (a)(1)).
Subsequent code references are to the Penal Code unless otherwise stated.
At the plea proceedings, the court advised appellant that, based on its discussions with counsel, the maximum sentence was 42 years eight months, and the mandatory minimum sentence was 31 years. Appellant entered into an open plea for an indicated sentence of 31 years. He pled no contest to the three counts and the enhancement allegations.
Appellant requested immediate sentencing. The proceedings recessed while the court checked its computations. After the recess, the court announced that there had been a miscalculation of the minimum statutory sentence; it was actually 34 years four months. Even so, the People agreed to the 31-year sentence specified in the plea. The court construed the plea as a negotiated plea, to a sentence that was less than the statutory minimum. It then imposed a 31-year sentence, based on this computation: on count 2, appellant received the low term of two years, doubled to four years for one strike; plus 20 years for firearms discharge (§ 12022.53, subd. (c)), resulting in a total of 24 years. On count 1, he received a consecutive sentence of two years, derived from one year (one-third of the midterm), doubled for one strike. The court struck “all punishment and all reference to the 12022.53(b) [finding] in count one.” Appellant’s sentence at that point was 26 years. The court added five years for the prior serious felony allegation of section 667, subdivision (a)(1). The court stayed all punishment on count 3 and on the section 667.5, subdivision (b) prior prison term allegations. It thereby arrived at a total sentence of 31 years.
The abstract of judgment and minute order of the sentencing hearing also show a total sentence of 31 years, but arrive at that total by a different computation than the one the court used at the sentencing hearing.
Both sides agree that the abstract of judgment must be corrected to conform to the oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Appellant’s concern in his own brief is that the stricken firearm enhancement on count 1 might be added to his sentence in the future. Counsel for both sides agree that the firearms enhancement cannot be added to appellant’s sentence in the future, as it was stricken as part of the plea bargain, which neither side seeks to avoid.
We therefore order the correction of the abstract of judgment, and otherwise affirm.
DISPOSITION
The trial court is ordered to correct the abstract of judgment to reflect imposition of a total sentence of 31 years, based on the computation in the oral pronouncement of judgment. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.