Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCS189535 of San Diego County, Raymond Edwards, Jr., Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)
HUFFMAN, J.
In July 2006, Jahaziel Fausto and a co-defendant were convicted of count 1, conspiracy to commit assault with a deadly weapon (Pen. Code, §§ 182, subd. (a)(1) & 245, subd. (a)(1)) and count 2, first degree murder (§ 187, subd. (a)(1)). As to each offense the jury found the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury also found firearm enhancements to be true within the meaning of sections 12022.53, subdivisions (b) and (e)(1); 12022.53, subdivisions (c) and (e)(1); and 12022.53, subdivisions (d) and (e)(1). Fausto was sentenced to an aggregate term of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
Fausto and the co-defendant appealed their convictions. In an unpublished opinion, we affirmed Fausto's convictions but remanded the case for resentencing. (People v. Cortez, et al. (Oct. 2, 2008, D049716) [nonpub. opn.].)
On remand the court again imposed a term of 50 years to life, composed of a 25-year-to-life term for count 2 with a consecutive 25-year-to-life term for the discharge of a firearm under section 12022.53, subdivisions (d) and (e)(1). On count 1, the court imposed a concurrent two-year term. The court struck the allegations under section 186.22, subdivision (b)(1) and stayed the remaining firearms enhancements under section 654.
Fausto again appeals raising technical challenges to the manner in which the sentence was imposed on remand. He does not challenge the 50-year-to-life term. Instead he contends the two-year sentence on count 1 should have been stayed pursuant to section 654 and that the firearm enhancements should not have been stayed pursuant to section 654. Instead, Fausto argues the enhancements should have been stayed under section 12022.53, subdivision (f). The Attorney General agrees with both contentions, but argues we should remand for the court to resentence correctly on the lesser firearms enhancements. Since we directed the trial court on remand to take the action, which the parties now concede should have happened, we decline to remand this case for yet another sentencing hearing to carry out our original directions. Plainly the error at resentencing was inadvertent and we can correct it on appeal. (People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579.) Accordingly, we direct that the judgment be modified to stay the sentence for count 1 pursuant to section 654. We also direct that the firearms enhancements under section 12022.53, subdivisions (b), (c) and (e)(1) be imposed and then stayed pursuant to section 12022.53, subdivision (f).
The trial court is also directed to prepare a new abstract of judgment reflecting the above changes to the sentence and forward the amended abstract to the Department of Corrections and Rehabilitation.
DISPOSITION
The trial court is directed to modify the judgment as to appellant Fausto as set forth in this opinion. In all other respects the judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.