Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 148555A
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Donal Hendrix argues, and the People agree, that the minute order of Hendrix’s sentencing hearing incorrectly states the total term for his convictions. We direct the trial court to correct the order.
Background
Hendrix was charged in an amended information with first degree murder (Pen. Code, § 187, subd. (a); count 1), three counts of attempted murder committed willfully, deliberately and with premeditation (§§ 187, subd. (a), 664, subd. (f); counts 2-4), possession of a firearm by a convicted felon (§ 12021, subd. (a)(1); count 5); and possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 7). Numerous firearm-related allegations were charged as to the first four counts and count 7. It was further alleged that Hendrix had a prior conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), served a prior prison term (667.5, subd. (b)), had a prior controlled substance conviction (Health & Saf. Code, § 11370.2, subd. (a)), as well as a prior narcotic conviction (Health & Saf. Code, § 11370, subds. (a), (c)).
All statutory references are to the Penal Code unless otherwise noted.
While a jury trial was underway, Hendrix agreed to a negotiated disposition. He pled no contest to count 1 with an admission he personally used a firearm (§§ 187, subd. (a), 12022.53, subd. (b)), and count 2 with an admission he personally discharged a firearm and inflicted great bodily injury (§§ 187, subd. (a), 664, 12022.53, subd. (d)). He entered these pleas with the understanding he would receive a prison sentence of 35 years to life, comprised of a 35-years-to-life term (25 years to life for the offense plus a ten-year enhancement) for the murder conviction and a concurrent 34-years-to-life term (an upper term of nine years for the offense plus 25 years to life for the enhancement) for the attempted murder conviction. The trial court granted the People’s motion to dismiss the remaining charges and allegations, and on March 2, 2007, he was sentenced to 35 years to life consistent with the negotiated disposition.
Discussion
The only issue Hendrix raises on appeal is that the minute order of his sentencing hearing contains an error. The order correctly states that Hendrix’s 34-year sentence for the attempted murder conviction was to run concurrently with the 35-year sentence for the murder conviction. However, the order incorrectly states that the total term was 69 years to life. The abstract of judgment correctly reflects a total term of 35 years to life. The People concede that the minute order is incorrect and join in Hendrix’s request that it be corrected.
The transcript of the sentencing hearing clearly indicates that the court imposed a total term of 35 years to life. Because a trial court’s oral pronouncement of judgment controls over an inconsistent clerk’s minute order (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2), and the pronouncement is consistent with the negotiated plea, we grant Hendrix’s request for correction of the minute order.
Disposition
The judgment is affirmed. The matter is remanded to the trial court for correction of the minute order of the March 2, 2007 sentencing hearing to reflect a total term for Hendrix’s murder and attempted murder convictions of 35 years to life in prison.
We concur. JONES, P.J. NEEDHAM, J.