Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF4238 Carla M. Singer, Judge.
Marcia R. Clark, 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, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Rylaarsdam, J., and Moore, J.
Appellant Ahmed Elghembri was found guilty by a jury of attempted murder, assault with a firearm, shooting from a motor vehicle, shooting at an occupied motor vehicle, and carrying a loaded firearm in public. In short, Elghembri was a taxi cab driver who went up to a fellow cab driver and accused him of having taken one of his fares. When the other driver tried to avoid a confrontation by driving his taxi across the street to another hotel, Elghembri followed him. Elghembri drove up along side the other vehicle and fired one shot through the window, narrowly missing the driver. The court sentenced appellant to 25 years in prison: five years on count 1 for attempted murder, and a consecutive term of 20 years for the firearm enhancement.
Elghembri does not challenge the conviction on appeal. Rather, he argues only that the trial court erred when it sentenced him to consecutive terms on counts 2 through 4 (assault with a firearm, shooting from a motor vehicle, and shooting at an occupied motor vehicle) and then stayed those sentences pursuant to Penal Code section 654. He insists no authority permits this. (See People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 [a term “cannot be both consecutive and stayed simultaneously because the two are mutually exclusive”].) He argues the shooting involved but one victim and one incident and that after imposing sentence on count one the trial court was required to sentence him to concurrent terms on the other counts. (Pen. Code, § 654, subd. (a) [“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision”].)
Count 5, carrying a loaded firearm in public, was a misdemeanor and the court ordered that sentence to run concurrently to the sentence on count one. That sentence is not challenged here.
The Attorney General takes the position that this is a “no harm, no foul” situation. Even if the trial court should have imposed concurrent rather than consecutive sentences on counts 2 through 4—a point he then vigorously disputes—the Attorney General argues that because “[t]he stay will become permanent upon his completion of the sentence imposed on count 1 [] any error is of no import, as the court stayed imposition of the terms.” But then he asks this court to correct the abstract of judgment (which we agree was not completed properly) to reflect the trial court’s “intended judgment” because it does not show the convictions, enhancements, or sentences on the other counts, or that the sentences as to counts 2 through 4 are stayed.
The time to correct sentencing error is now. We reject the Attorney General’s proposal to wait to see what happens, and we refuse to correct the abstract of judgment, as appellant asks, to state that the sentences are to run concurrent when it is unclear whether the trial court intended to impose consecutive or concurrent sentences here. The better course is to remand the matter for resentencing. If the trial court intended to run the terms consecutively it can on remand state its reasons for exercising its discretion in making that sentencing choice, something it failed to do here. (Cal. Rules of Court, rule 4.406(b)(5) [sentencing judge required to give reasons if imposing consecutive sentences]; see In re Spears (1984) 157 Cal.App.3d 1203, 1211 [remand for resentencing appropriate when reasons not stated].) If, on the other hand, the trial court misspoke and intended to impose concurrent terms, remand will give it an opportunity to correct the error, and correct the abstract of judgment at the same time.
The judgment of conviction is affirmed. The matter is remanded for resentencing only.