Opinion
C088683
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. DEMAREA FULBRIGHT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE002779)
A jury found defendant Demarea Fulbright guilty of attempted murder (Pen. Code, §§ 664/187, subd. (a); count one), assault with a firearm (§ 245, subd. (a)(2); count two), and two counts of first degree robbery at an inhabited dwelling by defendants acting in concert (§§ 211/213, subd. (a)(1)(A); counts three & four). The jury returned true findings on the following firearm enhancement allegations: section 12022.53, subdivisions (b) and (c) (counts one, three & four); section 12022.5, subdivision (a) (counts one through four), and section 12022.5, subdivision (d) (count two). On counts one and four, the jury returned true findings on enhancement allegations that defendant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). Defendant was sentenced to an aggregate determinate term of 13 years plus two consecutive 25-year-to-life indeterminate terms for great bodily injury enhancements on counts one and three.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) the court erred in denying his request for an alibi instruction; (2) his defense counsel was ineffective in failing to elicit additional evidence to support an alibi instruction; (3) the court violated section 654 by failing to stay the execution of sentence for either count one or count four; (4) the sentence imposed on count three is unauthorized because the jury never returned a true finding on a personal discharge of a firearm causing great bodily injury enhancement allegation for that count; and (5) there are clerical errors in the abstract of judgment. We conclude that the trial court should have stayed the execution of sentence on either count one or count four, including the attendant enhancement, and that the sentence imposed on count three is unauthorized. We shall vacate the sentence and remand for resentencing. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution's case-in-chief
On the evening of February 4, 2016, three armed intruders entered N.P.'s apartment to commit a robbery. At the time of the robbery, the apartment was occupied by seven people: N.P. and her three young children; N.P.'s mother; T.M. (the father of N.P.'s children); and T.M.'s friend. In the course of the robbery, there was a struggle between T.M. and one of the robbers and T.M. was shot multiple times. The robbers then grabbed items, including a laptop and jewelry, and fled out the back door. N.P. called 911 while a friend drove T.M. to the hospital.
A police officer spoke with T.M. at the hospital on the night of the shooting and asked T.M. if he knew who shot him. T.M. told the officer he knew who shot him, but refused to say who it was.
A few days after the shooting, a police detective had a telephone conversation with T.M.'s girlfriend about the shooting. During the call, the girlfriend relayed that T.M. told her the perpetrators were "D-Boy," "Boo," and Boo's cousin. The girlfriend also told the detective she knew the real name of the man who shot T.M., disclosing defendant's name and birthdate.
At trial, T.M.'s girlfriend denied talking to T.M. about the February 4 incident, and did not recall talking to the police. She was unable to identify defendant or codefendant Levon Hubbard in court, and claimed not to know anyone named Demarea Fulbright or Levon Hubbard or anyone with the nickname of D-Boy or Boo.
After the call with T.M.'s girlfriend, the detective spoke with T.M. T.M., who was still in the hospital, was in pain and self-administering morphine pain medication, but appeared coherent. T.M. told the detective that D-Boy, Boo, and Boo's cousin were responsible for the robbery and shooting. T.M. stated that he was shot—first by D-Boy and then by Boo—as he tussled with D-Boy during the robbery.
T.M. identified a photograph of Hubbard as "Boo," and identified a photograph of defendant as "D-Boy." N.P. identified defendant in a photographic lineup as the person who looked most like the person who shot T.M.
At trial, N.P. testified that she felt pressure to make an identification. She testified, "I didn't recognize any of the people in the photo, but they was making like I had to circle one and I had to sign one and I had to pick one." The detective denied pressuring N.P. and testified N.P. was admonished there was no obligation to make an identification.
Forensic phone record searches revealed that a short time before the robbery, T.M. received phone calls from phones linked to defendant and Hubbard. A search of defendant's phone revealed several Internet searches were made from the phone in late February 2016 with queries such as "Sacramento Fox 40 news downtown Sac shooting, Feb. 4, 2016."
Police searches of social media accounts also resulted in the discovery of photographs and videos of defendant, also known as D-Boy, and Hubbard, also known as Boo, together. In some photographs, defendant appeared to be holding a gun of a caliber similar to that used in the shooting.
Defendant was arrested on March 7, 2016, and interviewed by police that same day. During his police interview, defendant admitted that he used to be known as "D-Boy" and that he was familiar with the area where the crime occurred. Defendant also admitted that he knew Hubbard. But defendant denied any involvement in the February 4, 2016 robbery and shooting.
N.P. testified that she was washing dishes in the kitchen of her apartment when she heard a knock on the back door. When she opened the door, she saw three men. She recognized one of the men as "D Boy," who was friends with her neighbor back in 2008 or 2009. The men asked for "Memphis," which was T.M.'s nickname. N.P. called out to T.M., who was in the living room.
When T.M. came to the door, he greeted the men as though he knew them. N.P. thought everything was fine and returned to washing the dishes. At some point, however, N.P. heard a gun being cocked. She turned to see that all three intruders had guns. Defendant pointed a gun at N.P. and T.M. and demanded money.
T.M. threw some money at defendant and T.M. and defendant began to tussle. N.P. did not know if T.M. tried to knock the gun out of defendant's hand but, in the course of the struggle, she heard gunshots. N.P. saw defendant, who was standing, fire several shots at T.M., who was on the floor. N.P. testified that she thought defendant may have "had a chance to step back and then . . . start firing," but the shooting happened "quickly." After the first robber started shooting, one or more of the other robbers also fired shots in T.M.'s direction. The robbers then grabbed items and fled out the back door.
N.P. initially identified Hubbard as the person who struggled with T.M. and as the first shooter. However, N.P. later corrected herself and testified that the first shooter and the person who tussled with T.M. was "Demarea," or "D-Boy." N.P. admitted some confusion because Hubbard and defendant looked alike. In the end, she was "very confident" defendant was the first shooter, but clarified that both Hubbard and defendant fired their weapons at T.M.
T.M. testified at trial under a grant of immunity. T.M. made it clear during his testimony that he was not a "snitch." He testified that when he was in the hospital and didn't know if he was going to live or die, he wanted the people who shot him to get punished, but at trial he no longer felt that way.
T.M. testified that his memory was "blurry" as to events prior to the shooting and that he did not have any memory of events after the shooting. He did not recall talking with his girlfriend about the incident, speaking with law enforcement, or being shown any photographs of suspects. He did not remember who called him before the robbery. He did not recall letting people into N.P.'s apartment the night he was shot. He testified that he knew many people with the nicknames of D-Boy and Boo, but he was not friends with them and did not speak with them. He did not recognize defendant or Hubbard and was unable to identify them in court.
B. The defense
The sole defense theory at trial was misidentification. The defense argued that defendant was not in N.P.'s apartment on the date of the robbery. The defense relied on T.M.'s failure to identify defendant at trial, N.P.'s testimony that she felt pressured during the photo identification, N.P.'s confusion at trial between defendant and Hubbard, the testimony of T.M.'s girlfriend that was inconsistent with what she told police, and evidence that a description of the robbers given by N.P. and T.M.'s seven-year-old son did not match defendant. Defense counsel also reminded the jury that during his police interview defendant repeatedly denied being at the apartment when the robbery occurred.
C. Verdict and sentencing
The jury found defendant guilty of attempted murder of T.M. in count one (§§ 664/187, subd. (a)); assault with a firearm on N.P. in count two (§ 245, subd. (a)(2)); robbery at an inhabited dwelling of N.P. in count three (§§ 211/213, subd. (a)(1)(A)); and robbery at an inhabited dwelling of T.M. in count four (§§ 211/213, subd. (a)(1)(A)).
The jury returned true findings on all the firearm enhancements alleged as to counts one, two, and four. As to count three, the jury found true that appellant intentionally discharged a firearm and personally used a firearm, but the jury did not make a true finding-and was not instructed to make a true finding-on the allegation that defendant personally discharged a firearm causing great bodily injury. With regards to the attempted murder charge in count one, the jury did not find true that it was committed with deliberation and premeditation. The jury found codefendant Hubbard not guilty of all charges.
Specifically, the jury returned true findings on enhancement allegations for intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d) (counts one & four); intentional discharge of a firearm (§ 12022.53, subd. (c) (counts one, three & four); and personal use of a firearm (§§ 12022.53, subd. (b) (counts one, three & four); 12022.5, subd. (a) (counts one through four); 12022.5, subd. (d) (count two)).
The court sentenced defendant to an aggregate determinate state prison term of 13 years consisting of nine years (upper term) for the attempted murder (count one), with consecutive terms of two years each (one-third the midterm) for the robberies (counts three & four). The court further sentenced defendant to two consecutive 25-year-to-life indeterminate terms for great bodily injury enhancements (§12022.53, subd. (d)) on counts one and three. The court imposed a one-year term (one-third the midterm) on count two, and 16 months for the personal use of a firearm enhancement (§ 12022.5, subd. (a)), but stayed execution of those sentences pursuant to section 654. The court struck a section 12022.53, subdivision (d) great bodily injury enhancement on count four. Various fines and fees were imposed and defendant was awarded presentence custody credit. This appeal was filed on January 11, 2019.
DISCUSSION
I
Request for Alibi Instruction
Defendant contends that the trial court committed prejudicial error in refusing to give a requested jury instruction on an alibi defense. We conclude the court did not err and, in any event, any error was harmless.
A. Additional background
During a jury instruction conference, defense counsel requested the court instruct the jury with CALCRIM No. 3400 pertaining to an alibi defense. As tailored to the crimes alleged against defendant, the requested instruction would have stated, in relevant part: "The People must prove that the defendant committed attempted murder, assault with a firearm, and robbery. The defendant contends he did not commit these crimes and that he was somewhere else when the crimes were committed. The People must prove that the defendant was present and committed the crimes with which he is charged. The defendant does not need to prove he was elsewhere at the time of the crime. [¶] If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find him not guilty." Concluding that defendant's alibi defense was not supported by substantial evidence, the trial court refused to give the requested instruction.
B. Analysis
Upon request, a defendant has a right to an instruction pinpointing a theory of defense if it is supported by substantial evidence. (People v. Jo (2017) 15 Cal.App.5th 1128, 1174.) "Evidence is '[s]ubstantial' for this purpose if it is 'sufficient to "deserve consideration by the jury . . . ." ' " (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) Doubts as to the sufficiency of the evidence should be resolved in favor of the accused. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) However, substantial evidence does not mean " ' " 'any evidence . . . no matter how weak.' " ' " (People v. Wilson (2005) 36 Cal.4th 309, 331.) It must be evidence that a reasonable jury could find persuasive. (Ross, supra, 155 Cal.App.4th at pp. 1049-1050.) Defendant claims there was substantial evidence to support an alibi instruction based on statements he made during his police interview. We disagree. Although defendant repeatedly denied being at the scene of the crime, there was no evidence presented to support a contention that defendant was somewhere else at the time of the robbery.
Defendant argues that an alibi defense does not require a defendant to prove where he was at the time of the robbery. Perhaps, but there still must be some evidence that he was somewhere other than at the scene of the crime. (See People v. Bradley (1945) 71 Cal.App.2d 114, 119.) Here, the evidence shows defendant did not remember where he was at the time of the robbery. He essentially told police, "I don't remember where I was, but I wasn't there." This, standing alone, is not an alibi. (People v. Le Beau (1955) 136 Cal.App.2d 69, 70 [defendant denied the crime, but was unable to remember where he was when it occurred; "[t]here was, therefore, no basis in the evidence for an instruction on alibi"].) The trial court thus did not err in refusing the requested alibi instruction.
Further, even if the evidence afforded some basis for an alibi instruction, defendant has failed to show the trial court's failure to give such an instruction was prejudicial. An erroneous failure to give a pinpoint alibi instruction is reviewed for prejudice under the standard in People v. Watson (1956) 46 Cal.2d 818. (People v. Ratliff (1986) 41 Cal.3d 675, 694.) Here, there is no reasonable probability that defendant would have received a more favorable result had an alibi instruction been given.
" 'An alibi is not a separate or affirmative defense but merely negatives the proposition required to be proven by the prosecution . . . that the defendant was personally present at the place when the offense was committed. [Citation.]' " (People v. Bradley, supra, 71 Cal.App.2d at p. 119; see also People v. Alexander (1947) 78 Cal.App.2d 954, 957-958.) Evidence of an alibi cannot be considered by itself, but must be considered in connection with all other evidence in the case. (People v. Freeman (1978) 22 Cal.3d 434, 438.) Accordingly, courts have no sua sponte duty to give an alibi instruction even if there is substantial evidence to support an alibi defense. (Ibid.) In the absence of a request, "it is sufficient that the jury be instructed generally to consider all the evidence, and to acquit the defendant in the event it entertains a reasonable doubt regarding his or her guilt." (People v. Alcala (1992) 4 Cal.4th 742, 804.)
Here, the court instructed the jury regarding the presumption of innocence, reasonable doubt, and the burden of proof (CALCRIM No. 220); evaluating witness credibility (CALCRIM No. 226); the sufficiency of testimony of one witness (CALCRIM No. 301); weighing conflicting evidence (CALCRIM No. 302); eyewitness identifications (CALCRIM No. 315); evidence of defendant's statements (CALCRIM No. 358); and corpus delicti (CALCRIM No. 359), among other instructions.
The jury specifically was instructed that defendant was presumed innocent and that it was the prosecution's burden to prove beyond a reasonable doubt that defendant committed the crimes charged against him. Among the allegations the prosecution was required to prove were that defendant was at the scene of the crime and committed the acts of which he was accused, including assault with a firearm and attempted murder.
We are "obligated to regard the jurors as intelligent and capable of understanding and correlating all instructions they are given." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1155; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The trial court's instructions were sufficient to inform the jury that the prosecution bore the burden of establishing defendant's guilt beyond a reasonable doubt and that defendant should be acquitted if the jury harbored a reasonable doubt on the issue of defendant's presence at the scene of the crime. Defense counsel also emphasized this point during his opening and closing arguments, specifically telling the jury that "if you have any reasonable doubt that [defendant] was there, you have to acquit him." Implicit in the jury's verdict is that the jury believed the evidence against defendant and did not believe defendant's theory that he was not involved in the crimes. (People v. Bagley (1955) 133 Cal.App.2d 481, 486.)
Under these circumstances, we cannot conclude that an additional instruction pinpointing an alibi theory of defense would have added anything material to the jury's understanding of its duty. Any error in failing to give the requested alibi instruction was harmless.
II
Ineffective Assistance of Counsel
To counter the lack of substantial evidence to support an alibi defense, defendant raises a claim of ineffective assistance of counsel. Specifically, defendant argues his counsel was ineffective in failing to elicit additional statements from defendant's interview to support an alibi instruction. Defendant points to portions of the police interview where defendant stated he was with his family on the date of the crime. Defendant argues his counsel's failure to elicit such evidence is reversible error because, if the evidence had been admitted, there was a reasonable probability the court would have given the requested alibi instruction and, if the instruction had been given, a reasonable probability that the outcome of the trial would have been more favorable to defendant.
To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence both that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and that (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692, 694 [80 L.Ed.2d 674, 693, 696, 698]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) If an ineffective assistance of counsel claim can be resolved on lack of prejudice alone, a reviewing court may reject the claim without determining whether counsel's performance was deficient. (Strickland, supra, 466 U.S. at p. 697; People v. Kipp (2001) 26 Cal.4th 1100, 1123.)
For purposes of an ineffective assistance of counsel claim, prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) This is substantially the same as the Watson standard for harmless error. (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4; accord, Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051.)
Having already concluded that there is no reasonable probability the result in this case would have been different if the court had provided the requested alibi instruction, we conclude that counsel's failure to elicit additional testimony to support the requested instruction likewise was not prejudicial. Thus, we find no ineffective assistance.
III
Section 654 Claim
Defendant next contends that the court violated section 654 by imposing punishment both on count one, the attempted murder of T.M., and count four, the robbery of T.M., because those crimes were part of a continuous course of conduct with a single criminal intent or objective. We agree.
Section 654 provides in pertinent part: "(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. . . ." (§ 654, subd. (a).) By its terms, section 654 prohibits multiple punishments based on the same "act or omission," which has been construed to include not only a single discrete physical act but also a course of conduct encompassing several acts pursued with the same criminal intent or objective. (People v. Corpening (2016) 2 Cal.5th 307, 311.) If a defendant suffers two convictions, and punishment for one is precluded by section 654, the proper procedure is to stay execution of sentence on one of the convictions. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.)
"In any section 654 inquiry, the court must initially ascertain the defendant's objective and intent. [Citation.]" (People v. Tom (2018) 22 Cal.App.5th 250, 260.) If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore punished only once. (People v. Harrison (1989) 48 Cal.3d 321, 335.) But if the defendant harbored multiple criminal objectives independent of one another, he may be punished for each statutory violation even if they were part of an indivisible course of conduct. (Ibid.) To permit multiple punishments, there must be evidence to support a finding the defendant formed a separate intent and objective for each offense. (People v. Adams (1982) 137 Cal.App.3d 346, 355.)
Where, as here, a trial court sentences a defendant to separate terms without an express finding that the defendant entertained separate objectives, the trial court is deemed to have made an implied finding that each offense had a separate objective. (People v. Islas (2012) 210 Cal.App.4th 116, 129.) An implied finding that the defendant harbored a separate intent and objective will be upheld on appeal if supported by substantial evidence. (Ibid.)
Here, defendant argues the evidence showed that the sole objective of the intruders was to commit a robbery and that the shooting was incidental to accomplishing that crime. Defendant argues the evidence showed T.M. was shot only because he " 'fought back' " and resisted the robbers' demands. The People, on the other hand, contend that the shooting was a " 'gratuitous' " act of violence, not incidental to the robbery, because the evidence showed that defendant was angry and shot T.M. multiple times. We are not persuaded by the People's argument.
"It has long been recognized that where a defendant is convicted of robbery and other crimes incidental to the robbery such as assault, section 654 precludes punishment for both crimes. [Citations.]" (People v. Mitchell (2016) 4 Cal.App.5th 349, 354 [assault of store clerk with scissors was incidental to robbery]; accord, People v. Hensley (2014) 59 Cal.4th 788, 793, 828 [shooting incidental to robbery where defendant shot victim in back and stole her purse]; People v. Martinez (1968) 264 Cal.App.2d 906, 908-909, 913-914 [shooting incidental to robbery where, during scuffle, victim reached for gun]; People v. Logan (1966) 244 Cal.App.2d 795, 797, 798 [shooting incidental to robbery where defendant shot recalcitrant restaurant owner to persuade him to open safe], overruled in part on other grounds by People v. Collie (1981) 30 Cal.3d 43, 62, fn. 16; People v. Ridley (1965) 63 Cal.2d 671, 673, 677-678 [shooting incidental to robbery where store proprietor was shot after attempting to knock gun from robber's hand and ducking behind counter].) These cases show that where a robbery victim is recalcitrant, application of additional force is generally considered incidental to the robbery.
In contrast, courts have held that section 654 does not bar double punishment when a separate act of violence is committed after the fruits of the robbery have been obtained, or where it represents a "gratuitous" act of violence going far beyond what was needed to accomplish the robbery. (See, e.g., People v. Nguyen (1988) 204 Cal.App.3d 181, 190 [perpetrator first stole victim's valuables, then forced the unresisting victim to the floor and shot him]; People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [defendant repeatedly hit the unresisting victim with a two-by-four board until the board broke and left the victim unconscious]; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300 [victim shot after attempted robbery completed]; People v. Coleman (1989) 48 Cal.3d 112, 162 [assault after robbery completed]; People v. Massie (1967) 66 Cal.2d 899, 908 [shooting, after robbery completed, where victim looked at defendant, angering him].)
In this case, substantial evidence does not support a finding that the shooting of T.M. was a separate, "gratuitous" act of violence. T.M. was not a helpless, unresisting victim shot after the fruits of the robbery were secured. Rather, the shooting happened quickly, nearly contemporaneously with the demand for money, and only after T.M. "fought back" and tussled with defendant. Notably, defendant and the other assailants only completed the robbery after T.M. was shot and immobile.
If defendant was angry with T.M., it was only because T.M. was defiant and uncooperative with the robbers' demands, and the fact that defendant shot at T.M. multiple times in rapid succession reflects nothing more than a panicked attempt to gain control of T.M. when he began to struggle with defendant. As the jury found, the shooting (attempted murder) was not committed with deliberation and premeditation.
Based on these uncontradicted facts, we cannot conclude that the shooting was a gratuitous act of violence going " 'far beyond' " what was needed to accomplish the robbery. (People v. Cleveland, supra, 87 Cal.App.4th at p. 272.) We conclude instead that defendant's objective was to commit a robbery and that the shooting of T.M. was an incidental act to facilitate that robbery.
Accordingly, we agree with defendant that section 654 prohibits punishment for both the attempted murder (count one) and the robbery (count four). Because the maximum length of punishment is identical, execution of the punishment for either count one or count four must be stayed, together with the attendant enhancement. (§ 654; People v. Bracamonte (2003) 106 Cal.App.4th 704, 709, disapproved on other grounds by People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.) We shall reverse defendant's sentence and remand for resentencing with directions to stay execution of the sentence imposed on either count one or count four, along with the attendant enhancement, pursuant to section 654.
IV
Unauthorized Sentence
In sentencing defendant, the trial court assumed that the jury returned a "true" finding for the section 12022.53, subdivision (d) enhancement on count three. However, the jury never made a true finding on that enhancement because it was omitted from the jury instructions and verdict form. Because there is no jury finding to support the enhancement, defendant contends the sentence imposed on count three is unauthorized and that we must modify the judgment by striking the enhancement. The People concede the sentencing error, but argue the matter should be remanded for resentencing. We agree with the People.
Section 12022.53, subdivision (j) provides that the existence of any fact required under section 12022.53, subdivisions (b), (c), or (d) "shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 12022.53, subd. (j).) In this case, the section 12022.53, subdivision (d) enhancement on count three required the jury to find true that defendant personally and intentionally discharged a firearm causing great bodily injury to N.P. (§ 12022.53, subd. (d).) As the People concede, the jury failed to return a true finding for that allegation. Accordingly, the trial court imposed an unauthorized sentence when it imposed the sentence enhancement. (People v. Nguyen (2017) 18 Cal.App.5th 260, 271 [court imposed unauthorized sentence when applying enhancement not included in accusatory pleading]; People v. Garcia (2017) 7 Cal.App.5th 941, 948 [court imposed unauthorized sentence when it imposed enhancement under § 12022.7, subd. (a) in addition to an enhancement imposed under § 12022.53, subd. (d)].) The section 12022.53, subdivision (d) enhancement on count three must be stricken and the sentence imposed thereon vacated.
Our Supreme Court has held that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (People v. Buycks (2018) 5 Cal.5th 857, 893.) Pursuant to Buycks, we remand this matter to the trial court for resentencing with directions to strike the section 12022.53, subdivision (d) enhancement on count three. We take no position on how the trial court should exercise its discretion on remand.
V
Correction of Abstract of Judgment
At sentencing, the court imposed a one-year term on count two with an additional 16 months for the firearm enhancement. The court stayed punishment on count two pursuant to section 654. The court also ordered defendant to pay a restitution fine in the amount of $10,000 under section 1202.4, subdivision (b), and a like amount (stayed) under section 1202.45. As to the remainder of the fees and fines, the court stated that it was imposing the minimum mandatory fees and fines without specifying any amounts or statutory bases. The court did not orally impose any penalty assessments.
The abstract of judgment shows the stayed base term on count two as two years instead of one, and fails to show the stayed enhancement. The abstract of judgment also provides that defendant was fined $20 pursuant to section 1202.5, $120 pursuant to section 1465.8, and $160 pursuant to Government Code section 70373.
On appeal, defendant argues we must modify the abstract to (1) correct the length of the punishment imposed (and stayed) on count two, (2) correct the dollar amounts for the section 1465.8 (court operations) and section 70373 (criminal conviction) assessments, and (3) delete the "unknown" $20 fine. The People agree that the abstract should be corrected to show that the stayed sentence on count two was only one year and that the amounts for the court operations and criminal conviction assessments should be swapped. The People also agree that the base fine imposed under section 1202.5 is incorrect—it should have been $10 rather than $20—but the People argue the base fine should be increased to include penalty assessments under sections 1464, subdivision (a)(1), and 1465.7, subdivision (a), and Government Code sections 76000, subdivision (a)(1), 76000.5, subdivision (a)(1), 70372, subdivision (a)(1), 76104.6, and 76104.7. (See People v. Hamed (2013) 221 Cal.App.4th 928, 935; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1109.)
It is the oral imposition of sentence that constitutes the judgment in an action. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) Where there is a discrepancy between the oral pronouncement and the abstract of judgment, the oral pronouncement controls. (Id. at p. 385.) An appellate court may order correction of the abstract of judgment to correct such errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Because the abstract of judgment is inconsistent with the oral pronouncement of judgment, we agree that the abstract of judgment contains errors and must be corrected to conform to the judgment. However, because we are reversing defendant's sentence and remanding for a full resentencing, including imposition of fines, fees, assessments, and penalties, we conclude it is premature for us to rule on these issues as the judgment may change. Accordingly, we conclude these issues can and should be addressed by the trial court on remand. To avoid confusion, we shall direct the court to specify each fine, fee, assessment, and penalty imposed, and the statute upon which each is based, in the oral pronouncement of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)
DISPOSITION
Defendant's sentence is vacated and this matter is remanded to the trial court for resentencing with directions to (1) stay execution of the sentence imposed on either count one or four, in addition to the attendant enhancement, pursuant to section 654, (2) strike the enhancement under section 12022.53, subdivision (d) as to count three, and (3) specify each fine, fee, assessment, and penalty imposed and the statute upon which each is based. The trial court is further directed to prepare an amended abstract of judgment in accordance with the judgment, and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
KRAUSE, J. We concur: ROBIE, Acting P. J. BUTZ, J.