Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA080685, Charles E. Horan, Judge. Reversed in part; affirmed in part with modifications.
Gideon Margolis, 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, Paul M. Roadarmel, Jr. and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Rodney Anthony Lewis, appeals from his convictions for: attempted carjacking (Pen. Code, §§ 215, subd. (a), 664); three counts of attempted kidnapping (§§ 207, subd. (a), 664); and four counts of second degree robbery. (§ 211.) The jury also found that defendant personally used a firearm in the commission of the robberies. (§ 12022.53, subd. (b).) The trial court found that defendant was previously convicted of a serious felony. (§§ 667, subds. (a)(1), (b)-(i), 1170.12.) Defendant argues: there was insufficient evidence to support his three attempted kidnapping convictions; instructional error occurred; there was sentencing error; and the abstract of judgment must be corrected. The Attorney General argues the sentence imposed as to count 1 should be modified and we have asked the parties to brief issues concerning the abstract of judgment and the section 1202.5, subdivision (a) fine. We affirm the judgment with sentencing modifications.
II. FACTUAL BACKGROUND
A. Counts 1-4 (September 27, 2007)
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Baldwin Park Police Detective Frank Segura was on patrol at approximately 9:50 p.m. on September 27, 2007. Detective Segura went to a Target store to purchase a wrist watch. Detective Segura drove into the parking lot in a black and white patrol car. Detective Segura was in uniform. Detective Segura saw defendant walking out of the Target store. Defendant was conversing with a woman who was walking seven or eight feet behind him.
Detective Segura stopped his patrol car. Detective Segura opened the driver’s side door and yelled out to defendant to stop and have a seat. Defendant placed his hand in his front waistband and ran. As will be noted, defendant had confronted Detective Segura with a replica handgun two weeks prior to the September 27, 2007 confrontation. Detective Segura radioed for assistance. Detective Segura used the patrol car’s loudspeaker to order defendant to stop. Defendant continued to run through the parking lot between cars. An officer identified only as Officer Cervantes arrived and joined in the pursuit with his patrol car.
Defendant ran toward a white car parked near the Target store doors. Defendant got into the right front passenger side of the car. Detective Segura heard women and children screaming. Detective Segura feared that defendant had a handgun and might harm those individuals. Both Detective Segura and Officer Cervantes drove toward the white car. Defendant then got out of the car and ran toward the front of Target store. Detective Segura drove toward defendant who fled back into the parking lot. Detective Segura and Officer Cervantes were able to contain defendant between cars. Defendant still had his right hand in his waistband and refused to follow the officers’ directions to stop and stand still.
Detective Segura then got out of his car and took chase on foot. Defendant stopped, extended both arms, and took a firing stance. Detective Segura could not see if defendant was holding a firearm. Detective Segura fired once or twice at defendant. Defendant moved and again brought his hands up while in a firing stance. Detective Segura fired two or three more shots in defendant’s direction. Defendant again ran. Detective Segura heard shots fired as defendant ran between cars. Detective Segura fired at defendant again. Defendant fell to the ground. After defendant was detained, an ambulance was summoned.
Two sisters, D.C. and K.C., were dropped off by their mother at the Target store on September 27, 2007, to purchase school supplies. Defendant had been in front of the girls at the register line. When D.C. and K.C. walked out of the Target store, they saw defendant being chased by two police cars. K.C. and D.C. ran to their mother’s car, which was parked 30 to 40 feet from the store entrance. K.C. and D.C. jumped in the right passenger door and slid over toward their mother, Elsa C., who was in the driver’s seat. Defendant also jumped into the car. Defendant was sitting on top of K.C. Defendant told Elsa C., “Drive, bitch, drive.” Elsa C. refused. Elsa C. got out of the car, taking the keys with her. Elsa C. told D.C. to get out of the car. Elsa C. opened the back door to remove her two-year old son. D.C. attempted to jump out of the car, but defendant held her right arm. D.C. was frightened. K.C. had managed to get out of the car on the passenger side. Elsa C. was very frightened for her children. Defendant then got out of the car and began running. Elsa C. and her daughters jumped back into the car and locked the doors. As Elsa C. drove away, she heard gunshots. Elsa C. and D.C. saw defendant with his hands clasped together and two index fingers pointed forward. They could not tell if defendant had a gun.
Two weeks prior to the incident at the Target store, Detective Segura and Officer Cervantes were working together in a marked patrol car. Detective Segura saw defendant riding a bicycle on the sidewalk. Defendant rode in and out of the roadway and onto the sidewalk. Detective Segura activated his overhead red lights and approached defendant in order to perform a pedestrian stop. Detective Segura stopped the patrol car within 10 feet of defendant. Detective Segura got out of the car. Defendant then dropped his bicycle, reached into his waistband, and removed what appeared to be a black semiautomatic nine-millimeter or.40 caliber handgun. Defendant dropped the gun and ran away. Detective Segura and Officer Cervantes pursued defendant on foot. Defendant ran into the rear yard of a residence. Although Detective Segura requested assistance from other units, defendant got away. When Detective Segura picked up the firearm, he discovered that it was a replica.
B. Counts 5-6 (July 29, 2007)
Christine Sung and Linda Duong were working at a Starbucks restaurant in El Monte at approximately 7 p.m. on July 29, 2007. Ms. Sung was assigned to the drive-through window. Ms. Sung was summoned to the counter to wait on defendant. Ms. Sung repeated defendant’s order to collect his payment. Defendant pulled out a gun from his front pocket and waved it back and forth in Ms. Sung’s direction. Defendant said, “Give me the money.” Ms. Sung did not have a key to open the cash drawer and told defendant she did not know how to open it. Defendant said, “Press enter cash.” Ms. Sung did so. The cash register opened. Ms. Sung complied with defendant’s demands to open the cash register because he had a gun. Ms. Sung feared for her safety and the safety of other employees.
Ms. Duong came from the back of the store. Ms. Sung said defendant had a gun. Ms. Duong removed the cash drawer from the register and placed in on the counter. Defendant removed the larger bills and some rolls of quarters from the counter. Defendant then asked for the money from the other register. Ms. Duong opened the other register. Defendant took the cash from that register as well. Defendant put the money in his pocket and walked out of the store. Ms. Duong was afraid for her herself and everyone in the store. She complied with defendant’s demands because he had a gun. Defendant took approximately $300 to $400.
The surveillance videotape dated July 29, 2007 from the Starbucks store was shown to the jurors at trial. Ms. Sung identified defendant as the individual in the video. Ms. Sung also noted the gun in defendant’s hand as shown on the videotape. Defendant was also seen to be taking something out of the till in front of him and placing it into his pocket. Ms. Sung identified defendant from a photographic lineup shown to her by Detective Tim Siedentopp and in the courtroom at trial. Ms. Duong identified defendant at trial as the individual who held a gun and took the register money on July 29, 2007.
C. Count 7 (September 15, 2007)
At approximately 8:30 a.m. on September 15, 2007, Jonathan Alon was working at a Burger King restaurant in Covina. Defendant approached the counter and ordered a hamburger. Defendant gave Mr. Alon a $1 bill. Defendant was told he owed eight additional cents and reached into his pocket. Defendant then pointed a flat silver gun at Mr. Alon. Defendant demanded he be given the money. Mr. Alon gave defendant $192 from the register. Defendant then left the restaurant. Mr. Alon called the police. Mr. Alon turned over the $192 because he was afraid for his own safety and everyone in the building. A video recording from the Burger King surveillance camera was played at trial. Mr. Alon identified defendant as the individual depicted in the videotape.
D. Counts 8-9 (September 18, 2007)
Elizabeth Varela was working at a Jack in the Box restaurant at approximately 9 p.m. on September 18, 2007. Defendant ordered a hamburger. Defendant had two dollars in his left hand. However, defendant took a gun from under his jacket with his right hand and said, “Give me all the money.” Ms. Varela opened the register and gave defendant approximately $200. Defendant then demanded the money from the drive-through register. As Ms. Varela began to open the second register, defendant came around the counter. Defendant produced a second small handgun. Defendant ordered the supervisor, Marvin Blanco, to get down on the floor. Defendant pointed one gun at Ms. Varela and the other at Mr. Blanco. Mr. Blanco got down on the floor. Ms. Varela removed the cash from the second register and handed it to defendant. Defendant then told Ms. Varela to give him the money under the register. Ms. Varela told defendant there was no money under the register. Defendant ordered Ms. Varela to remove the drawer to show him there was nothing there. Defendant then walked out the door. Ms. Varela called the police. Ms. Varela complied with defendant’s orders because she was afraid she would die.
Still photos taken from the surveillance video at Jack in the Box on September 18, 2007, depicted defendant while he was at the counter and when Ms. Varela handed him the money. Ms. Varela identified defendant at trial as the individual in the photos. Ms. Varela had previously identified defendant from a photographic lineup. Detective Tim Siedentopp prepared a map depicting the location of the Target store and the three robberies in this case. Defendant’s residence was located in the center of the four locations.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues there was insufficient evidence to support his attempted kidnapping convictions. We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Elliot, supra, 37 Cal.4th at p. 466; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1044; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Section 207, subdivision (a) provides in relevant part: “Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (See People v. Martinez (1999) 20 Cal.4th 225, 231, fn. 3; People v. Rayford (1994) 9 Cal.4th 1, 9, fn. 3.) In People v. Medina (2007) 41 Cal.4th 685, 694, the California Supreme Court held: “An attempt to commit a crime is comprised of ‘two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ (§ 21a; see § 664 [prescribing punishment].) Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. (See People v. Superior Court (Decker) (2007) 41 Cal.4th 1; see also People v. Dillon (1983) 34 Cal.3d 441, 453-454[abrogated by statute on different points stated in People v. Chun (2009) 45 Cal.4th 1172, 1186]; [People v.] Jones[(1999)] 75 Cal.App.4th [616,] 627.) We have explained that ‘under California law, “[a]n attempt to commit a crime is itself a crime and [is] subject to punishment that bears some relation to the completed offense.” [Citaton.]... [¶]... “One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.” [Citation.]’ ([People v.] Toledo[ (2001)] 26 Cal.4th [221,] 229-230.)” (Footnote omitted.) In Medina, our Supreme Court concluded that a completed carjacking is not required for an attempt to violate section 209.5, subdivision (a), kidnapping during commission of carjacking. (People v. Medina, supra, 41 Cal.4th at p. 694.) Although the Medina case involved section 209.5, subdivision (a), it is relevant here.
In this case, defendant: pushed both D.C. and K.C. further into the car; sat on top of K.C.; and held D.C. Defendant then told Elisa C., “Drive, bitch, drive!” These acts served to demonstrate that defendant was attempting to move D.C. and K.C. a substantial distance for the purpose of carjacking their mother’s car. Defendant need not have actually moved the children a substantial distance for the attempted offense to occur because asportation is not an element of the offense. (See People v. Cole (1985) 165 Cal.App.3d 41, 50; People v. Fields (1976) 56 Cal.App.3d 954, 956-957.) In Fields, the defendant attempted to force a young girl into a car. The defendant abandoned his efforts when the girl screamed. In Fields, the defendant was convicted of attempted kidnapping even though he never physically moved the victim. Our colleagues in Division Two of this appellate district upheld the defendant’s attempted kidnapping convictions. In People v. Medina, supra, 41 Cal.4th at page 699, the defendant, while running from police, jumped into the driver’s seat of an occupied van. The victim yelled at the defendant to get out because her children were in the van. The defendant attempted to start the van, but ran away when a police officer approached. In Medina, our Supreme Court held there was a reasonable inference that the defendant intended to take the van in order to escape from the police and his direct but ineffectual acts demonstrated an attempt to kidnap the occupants. The same is true here. Defendant’s actions provided substantial circumstantial evidence of an intent to kidnap K.C. and D.C. to facilitate the carjacking of their mother’s car.
B. Lesser included offense instructions.
1. Attempted false imprisonment
Defendant argues that the trial court improperly failed to sua sponte instruct on attempted false imprisonment as a lesser included offense of attempted kidnapping. A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Grant (1988) 45 Cal.3d 829, 847; People v. Melton (1988) 44 Cal.3d 713, 746; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Bunyard (1988) 45 Cal.3d 1189, 1232; People v. Flannel, supra, 25 Cal.3d at p. 684; People v. Mayberry (1975) 15 Cal.3d 143, 151.) A lesser offense has been defined by the California Supreme Court: “‘Under California law, a lesser offense is necessarily included in a great offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 154, fn 5, quoting People v. Birks (1998) 19 Cal.4th 108, 117.) In Breverman, our Supreme Court reiterated: “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed.” (People v. Breverman, supra, 19 Cal.4th at p. 162, quoting People v. Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12, original italics, and People v. Carr (1972) 8 Cal.3d 287, 294; see also People v. Medina, supra, 41 Cal.4th at p. 701; People v. Haley (2004) 34 Cal.4th 283, 312.)
Penal Code section 236 defines false imprisonment as, “the unlawful violation of the personal liberty” of another person. Several courts have held that false imprisonment is a lesser included offense of kidnapping. (People v. Shadden (2001) 93 Cal.App.4th 164, 171; People v. Chacon (1995) 37 Cal.App.4th 52, 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121.) As a result, attempted false imprisonment is also a lesser included offense of attempted kidnapping. However, the evidence presented did not demonstrate that the lesser offense occurred. The trial court need not give the lesser included instruction. As set forth in detail above, the evidence in this case demonstrated that defendant intended to kidnap K.C. and D.C. His attempt to do so went beyond what constitutes a mere unlawful detention or violation of their personal liberty. Defendant demanded that Elisa C. drive away. It was only when she refused that defendant ran away. In any event, even if the trial court should have given the lesser included instruction, any error was harmless. (People v. Randle (2005) 35 Cal.4th 987, 1003; overruled on a different point in People v. Chun, supra, 45 Cal.4th at p. 1201; People v. Russell (2006) 144 Cal.App.4th 1415, 1431-1432; People v. Watson (1956) 46 Cal.2d 818, 836.) It is not reasonably probable that defendant would have realized a more favorable result had the instruction been given.
2. Battery
Defendant further argues that the trial court should have instructed the jurors on battery as a lesser included offense of attempted kidnapping. As set forth above, the trial court need not instruct on a lesser offense absent a showing that the less serious crime, but not the greater, was committed. In People v. Lopez (1998) 19 Cal.4th 282, 288-289, the California Supreme Court held: “To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met. The elements test is satisfied when ‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘”if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (See also People v. Rundle (2008) 43 Cal.4th 76, 143, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 416, 421, fn. 22; People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Section 242 defines battery as, “any willful and unlawful use of force or violence upon the person” of another person. Battery had been found to require a touching. (People v. Marshall (1997) 15 Cal.4th 1, 38; People v. Thomas (2007) 146 Cal.App.4th 1278, 1293; People v. Longoria (1995) 34 Cal.App.4th 12, 16.) On the other hand, an attempted kidnapping need not involve a touching. As a result battery is not a lesser included offense of attempted kidnapping.
Nor does the accusatory pleading test require a lesser included instruction on battery. In this case, the information alleged as to counts 3 and 4: “On or about September 27, 2007, in the County of Los Angeles, the crime of attempted kidnapping, in violation of Penal Code section 664/207(a), a Felony, was committed by Rodney Anthony Lewis, who did unlawfully, attempted to forcibly and by instilling fear, steal, take, hold, detain and arrest [D.C. or K.C.] in Los Angeles County, California, and did take the said [D.C. or K.C.] into another country, state, county and another part of Los Angeles County.” Defendant argues that the prosecutor’s use of the terms “forcibly and by instilling fear” rather than the statutory term of “or” resulted in an allegation that defendant physically touched the victim. Defendant argues this language made battery a necessarily included offense of attempted kidnapping. We disagree.
In People v. Lopez (2005) 129 Cal.App.4th 1508, 15322-1533, our colleagues in the Court of Appeal for the Sixth Appellate District, held: “When a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. (In re Bushman (1970) 1 Cal.3d 767, 775, disapproved on other grounds by People v. Lent (1975) 15 Cal.3d 481, 486, fn.1.)... ‘When... the accusatory pleading describes a crime in the statutory language, an offense is necessarily included in the greater offense when the great offense cannot be committed without necessarily committing the lesser offense.’ (People v. Marshall[,supra, ] 15 Cal.4th [at p.] 38; People v. Wolcott (1983) 34 Cal.3d 92, 99.) The statutory elements test is the only one relevant here. The trial court need not have instructed the jury [on the lesser included offense].” Our colleagues in the Fourth Appellate District recently agreed with that conclusion in People v. Moussabeck (2007) 157 Cal.App.4th 975, 981, holding, “[W]hen the accusatory pleading describes the crime in its statutory language, but in the conjunctive [], the allegation is treated as being in its statutory disjunctive.”
In People v. Licas (2007) 41 Cal.4th 362, 366, the California Supreme Court held where the allegations in the information track the statutory language, only the elements test applies. (See also People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986.) The same is true here. The statutory elements test is the only one relevant here. The trial court need not have instructed on battery as a lesser included offense.
C. Sentencing
1. Count 9 firearm enhancement
Defendant argues that the trial court improperly imposed the upper term on the count 9 section 12022.5, subdivision (a) gun-use enhancement. Count 9 involved the assault with a deadly weapon on Mr. Blanco during the September 18, 2007 robbery of the Jack in the Box restaurant. A concurrent 13-year term was imposed as to count 9. Citing to Cunningham v. California (2007) 549 U.S. 270, 293, defendant argues that the trial court improperly imposed the upper term because it relied upon factors not decided by the jury. At the April 2, 2008 sentencing hearing, the trial court imposed a 10 year section 12022.5, subdivision (a) enhancement as to count 9, noting: “I agree with the People’s assessment that there is no ban or no bar to a sentence – to a consecutive sentence, and it’s true that he did point the gun at Mr. Blanco on the Eighteenth, during the robbery of the eighteenth in an attempt to keep him out of the picture. Nonetheless, the court feels it would be appropriate and therefore will impose a concurrent sentence on that one. This will be the mid-term of three years, 245(a)(2). Enhanced by ten years for the use of the firearm. Ten years being justified easily by the fact that the defendant was a convicted felon and was not entitled to possess a firearm in any manner. That makes it an aggravated gun use, in the court’s opinion, so that’s 13 years on count 9. That will run concurrent with the time imposed on count 5, and that’s all I need to say on that one.” The trial court had previously found that defendant had previously been convicted of a serious felony.
In People v. Black (2007) 41Cal.4th 799, 805-824, our Supreme Court examined the imposition of an upper term under the determinate sentencing law in light of Cunningham v. California, supra, 549 U.S. at page 281: “‘[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.’” (See People v. Landaverde (2007) 157 Cal.App.4th 28, 34.) In Black, our Supreme Court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41Cal.4th at p. 816; accord People v. Sandoval (2007) 41 Cal.4th 825, 836-837.) Here, the upper term was imposed because defendant’s prior record made it a crime to possess the handgun under any circumstances.
2. Presentence credits
Defendant argues and the Attorney General agrees that he was entitled to three days additional presentence conduct credits pursuant to section 2933.1. We agree. The failure to award a proper amount of credits is a jurisdictional error, which may be raised at any time. (People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; see also People v. Guillen (1994) 25 Cal.App.4th 756, 764.) Defendant received an incorrect award of presentence credits. He should have received not only the 189 days of actual custody credit awarded by the trial court, but also 28 days conduct credit for a total of 214 days. (§ 2933.1; People v. Nunez (2008) 167 Cal.App.4th 761, 765.)
3. Correction of count 1 sentence
The Attorney General argues that the trial court miscalculated the sentence imposed as to count 1. The Attorney General argues the court should have imposed a 20-month sentence rather than a 5-year sentence as to count 1. We agree. At the sentencing hearing, the trial court stated: “The completed carjack is worth three, five or nine years. I would assume that the attempt to commit that crime is one-half that so the court will select one-third the mid-term doubled, which equals five years on that count. That is to run consecutive with the time imposed on counts 5, 6, 7 and 8. So, in essence, it’s a two and a half year mid-term due to the fact it’s an attempt to carjack. That is doubled under the Three Strikes Law, and that once again is mandatory consecutive sentence because the crime occurred on a separate occasion, separate date than the other crimes.”
The trial court properly determined that the attempted carjacking should be sentenced at half the term prescribed for carjacking pursuant to section 664, subdivision (a). The trial court also ordered the sentence should be imposed consecutively at one-third the midterm pursuant to sections 1170.1, subdivision (a) and 667, subdivision (c)(6). However, the trial court neglected to reduce the 30-month term (one-half the midterm of 5 years) to one third prior to doubling it. One-half of five years is 30 months. One-third of that term is 10 months. Therefore, the trial court should have imposed a 10-month sentence as to count 1 and then doubled it pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). We therefore modify the 5-year sentence as to count 1 and impose a 20-month sentence instead. The trial court must insure the abstract of judgment is corrected to accurately comport with this order. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
4. Additional assessments and penalties
The trial court orally imposed a $10 section 1202.5, subdivision (a) theft related fine and a $2 Penal Code section 1465.7, subdivision (a) state surcharge. The trial court did not orally impose other jurisdictionally mandated assessments and penalties: a $10 section 1464, subdivision (a)(2) penalty assessment; a $7 Government Code section 76000, subdivision (a) penalty assessment; a $3 Government Code section 70372, subdivision (a) state court construction penalty; a $2 Government Code section 76104.6, subdivision (a)(1) deoxyribonucleic acid penalty; and a Government Code section 76104.7 state only deoxyribonucleic acid penalty. The judgment must be modified to add these additional assessments and penalties. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1254; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) This will not require a modification of the abstract of judgment because the deputy clerk correctly inserted the total amount due on the section 1202.5, subdivision (a) theft related fine—$36.
5. Correction of abstract of judgment
First, the California Supreme Court has held: “[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. [Citations.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also §§ 1213, 1213.5, People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Walz (2008) 160 Cal.App.4th 1364, 1367.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, “[O]n its own motion, the reviewing court may order the correction... of any part of the record.” (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.)
Second, defendant argues and the Attorney General concedes the abstract of judgment should be corrected to more accurately reflect the true finding for the section 12022.5, subdivision (a) enhancement as to count 9. We agree. Here, the jury found the section 12022.5, subdivision (a) allegation true as to count 9. Thereafter, the trial court selected the upper term of 10 years as to the related enhancement. However, the abstract of judgment inaccurately reflects the imposition of a section 12022.53, subdivision (b) enhancement. The abstract of judgment is corrected to reflect the imposition of a 10-year section 12022.5, subdivision (a) enhancement as to count 9.
Third, defendant received a 5 year term as to count 2, the attempted kidnapping of Elisa C. which was stayed pursuant to section 654, subdivision (a). Yet the abstract of judgment incorrectly states no term of any duration was imposed as a result of defendant’s conviction for the attempted kidnapping charged in count 2. Thus, the abstract of judgment must be corrected to state that a five year term was imposed on count 2 which is stayed pursuant to section 654, subdivision (a).
IV. DISPOSITION
The sentence as to count 1 is reversed. A 20-month consecutive sentence is imposed as to count 1. The abstract of judgment is modified to reflect the award of 214 days presentence custody credits and the Penal Code section 12022.5, subdivision (a) enhancement as to count 9. The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J. MOSK, J.