Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. Chung, Judge. Los Angeles County Super. Ct. No. MA029328
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Jerry Lee Kelly III, appeals from the judgment entered following remand for resentencing. Appellant previously had been convicted of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) with jury findings that he committed the crimes to benefit a criminal street gang (Pen. Code, § 186.22, subds. (b)(1)(A)) and that he personally discharged a firearm, thereby causing death (Pen. Code, § 12022.53, subds. (b)-(d)). In the previous appeal, this court reversed the criminal street gang enhancement based on insufficiency of the evidence and remanded the case for resentencing. Upon resentencing, appellant was sentenced to prison for 50 years to life. He now contends the abstract of judgment must be corrected to reflect the correct sentence.
FACTUAL AND PROCEDURAL SUMMARY
Pursuant to respondent’s request, judicial notice is taken of the contents of this Court’s files from Case No. B181975. As the issues raised on appeal do not relate to the facts, no statement of facts is provided.
Following remand, the trial court stated the matter was before it “simply to address the sentencing as to the [criminal street gang enhancement.] [¶] [The court continued ] to refresh everyone’s memory, on count 1, Penal Code section 187(a), the jury returned a verdict of guilty on first degree murder. They found true the 12022.53(d) allegation. A sentence of 25 to life consecutive as to both the counts and the firearm allegation was imposed. That does not change and is not affected. [¶] Count 2, Penal Code section 12021 (a)(1), jury having found a verdict of guilty, I had previously imposed the midterm of two years’ state prison and elected to run that concurrent. That sentence legally does not change. [¶] There was a -- consecutive to the two years a three-year sentence on the 186.22(b)(1) allegation. The total of five years was run concurrent. Consistent with the direction of the appellate court, they found insufficient evidence. That will be stricken. The sentence . . . remains otherwise unchanged.” Credits were reevaluated.
Appellant contends the minute order and the corresponding abstract of judgment do not reflect what occurred at the hearing. Appellant correctly observes the amended abstract of judgment erroneously includes on count 2 a three-year criminal street gang enhancement. The three-year sentence on the enhancement is inconsistent with the trial court’s oral order striking the enhancement. The abstract of judgment must be amended to accurately reflect that the trial court did not impose the three-year criminal street gang enhancement. (See People v. Mitchell (2001) 26 Cal.4th 181, 186.)
Appellant additionally claims the abstract of judgment erroneously includes a victim restitution fine of $5,344 and a restitution fine and a parole revocation fine of $10,000 each. This contention is without merit. Those fines were imposed in the original proceedings. Upon resentencing, when the trial court struck the criminal street gang enhancement, it stated the sentence “remains otherwise unchanged.” This statement indicates the trial court considered the remainder of the original sentence and elected not to change it.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to prepare a corrected abstract of judgment, omitting the gang enhancement and the three year term imposed by reason of the enhancement, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: WILLHITE, J., SUZUKAWA, J.