Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern CountySuper. Ct. No. SC084214A, James M. Stuart, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Cornell, J., and Gomes, J.
INTRODUCTION
In May 2002, a Kern County jury convicted appellant Jeffrey Robert Monroe of first degree burglary of a mobile home on October 13, 2000 (Pen. Code, §§ 459, 460, subd. (a)). A .380 semiautomatic handgun was missing from the mobile home. On October 17, 2000, Monroe discarded the handgun while fleeing a Los Angeles carjacking. Sheriff’s deputies recovered the weapon and arrested him. Fingerprints from inside the mobile home matched his. In February 2001, Monroe was convicted in Los Angeles County case number VA062082 of carjacking (§ 215) with a firearm enhancement, and sentenced to a total of 14 years in state prison.
All further statutory references are to the Penal Code.
At the bifurcated trial, the Kern County jury found 10 Pennsylvania burglary prior convictions true. The court found that three of those prior convictions qualified as both serious felony priors and “strike” priors, and sentenced Monroe to 40-years-to life, comprised of 25-to-life for first degree burglary consecutive to five years for each serious felony prior, to be served consecutively to his 14-year sentence on the Los Angeles carjacking.
Monroe appealed his conviction. In a prior opinion (People v. Monroe (Aug. 30, 2004, F042081) [nonpub. opn.]) we ordered stricken from the judgment two serious felony priors and two strike priors which arose from two of the Pennsylvania burglary convictions because the trial court improperly relied on inadmissible hearsay to establish the residential character of the convictions, but otherwise affirmed the judgment. We remanded the case for further proceedings consistent with our opinion.
On January 20, 2005, Monroe was resentenced. The court sentenced him on the Kern County conviction to a total of 17 years in prison, comprised of double the six-year upper term on the burglary conviction, plus five years for the prior serious felony. The court imposed this sentence consecutive to the 14-year sentence for the Los Angeles County case, which made his total term of imprisonment 31 years. Monroe received credits that included only time Monroe served when detained at the California Department of Corrections from February 20, 2002, to April 25, 2002, and at the Kern County jail from April 26, 2002 to December 3, 2002.
On his second appeal (People v. Monroe (May 10, 2006, F047261) [nonpub. opn.]), Monroe contended: (1) the trial court erred in failing to aggregate the Kern County and Los Angeles County convictions pursuant to section 1170.1, subdivision (a); (2) the trial court erred in failing to calculate and enter into the abstract of judgment his total actual custody credits earned while in the custody of the Department of Corrections; and (3) the remaining Pennsylvania burglary conviction had to be stricken. The People conceded the first two issues. We rejected the third argument based on binding precedent from the California Supreme Court. We accepted the People’s concessions on issues one and two and remanded for resentencing.
On October 11, 2006, during the new sentencing hearing, the court declined to reconsider prior rulings concerning the validity of the remaining prior serious felony conviction from Pennsylvania. The court found Monroe ineligible for probation and that aggravating sentencing factors outweighed factors in mitigation. Monroe was sentenced on the Kern County conviction to upper term of six years which was doubled pursuant to the three strikes law. The court made the Los Angeles carjacking conviction the subordinate term and sentenced Monroe to a consecutive term of one-third the midterm, or one year eight months, which it also doubled pursuant to the three strikes law to three years four months. The court imposed consecutive terms of one year four months for a gun use enhancement and five years for a prior serious felony conviction enhancement.
The trial court indicated it considered the original probation report as well as the supplemental probation report prepared for the third sentencing hearing. The original probation report is not part of the current record. During the second sentencing hearing on January 20, 2005, defense counsel noted the probation report stated as a mitigating factor that Monroe admitted culpability at an early stage of the proceedings. Counsel further argued Monroe committed his offense in such a way as to avoid harm to persons or damage to property. The trial court found as an aggravating sentencing factor that Monroe’s prior convictions as an adult, which were proved to a court or to a jury, to be numerous. The court noted Monroe served two prior prison terms in Pennsylvania and was still on parole when he committed the instant offense. The court found that the totality of the record, taken together as a single circumstance in aggravation, qualitatively outweighed the sentencing factor in mitigation. The same judge presided over all three sentencing hearings.
Monroe’s total sentence is 21 years eight months. The court imposed a restitution fine and granted custody credits of 2,205 days. Monroe filed a notice of appeal on October 13, 2006. After seeking leave of this court to do so, Monroe filed a request for probable cause with the trial court which was granted on May 4, 2007. On June 14, 2007, this court granted Monroe’s request for judicial notice that he filed with the trial court for it to recall its sentence based on the recent decision of the United States Supreme Court in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. A written order from the trial court denying Monroe’s request to recall his sentence, included in the request for judicial notice, was executed on February 15, 2007.
On August 6, 2007, Monroe’s appellate counsel filed a request to withdraw argument one from his opening brief and to submit the cause to our court for independent review pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On August 8, 2007, we granted Monroe’s request to withdraw argument one from his opening brief and to deem his opening brief to be a Wende brief. Monroe’s appointed appellate counsel submitted a declaration indicating that Monroe was advised he could file his own brief with this court. In our order of August 8, 2007, we invited Monroe to submit additional briefing stating any grounds on appeal he wishes this court to consider. To date he has not done so.
Argument one alleges various errors were made in the abstract of judgment.
Although Monroe’s appellate counsel abandoned argument one in the opening brief, after independent review it appears there are two remaining clerical errors in the abstract of judgment that we can correct on appeal. (See People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094, fn. 8; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332; People v. Ngaue (1992) 8 Cal.App.4th 896, 899, fn. 3.)
Appellant abandoned argument one, setting forth various clerical errors in the abstract of judgment after the trial court prepared and submitted an amended abstract of judgment on July 27, 2007 correcting the errors noted in appellant’s opening brief.
We note two problems with the trial court’s imposition of sentence on the gun-use enhancement. First, the proper sentence for the section 12022.5, subdivision (a)(2) gun use enhancement for the Los Angeles conviction was for one-third the midterm. The midterm for a violation of section 12022.5, subdivision (a)(2) is five years. The trial court expressly stated at the October 11, 2006 sentencing hearing that it was imposing one-third the midterm for this enhancement. Imposition of one-third the midterm of an enhancement associated with a subordinate offense is mandatory under section 1170.1, subdivision (a). One-third the low term of four years is one year four months, the length of the sentence announced by the court. One-third the midterm of five years is one year eight months. The trial court’s announcement of a sentence of one year four months for the enhancement is four months short of the total time appellant should have received for a sentence of one-third of a five-year midterm. Because the court intended to impose the midterm for the gun use enhancement and because the imposition of one-third the midterm is legally mandated, the imposition of a sentence of only one year four months, rather than one year eight months, appears to be clerical error that can be corrected on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187; People v. Hong (1998) 64 Cal.App.4th 1071, 1075-1076 [rendition of judgment to abstract of judgment a clerical function].) Second, the total length of appellant’s sentence with this correction should be 22 years, not 21 years eight months.
In 2001, section 12022.5, subdivision (a)(2) provided in relevant part that where a gun use enhancement is applied to a defendant who “has been convicted of carjacking or attempted carjacking, the additional term shall be 4, 5, or 10 years.” Section 12022.5 has been subsequently amended.
Pursuant to Government Code section 68081, we requested briefing from the parties on this point. In response to our request, appellant’s counsel filed a letter indicating that an amended abstract of judgment was prepared by the trial court on July 27, 2007. The parties have not otherwise responded to our invitation for further briefing on this issue.
After independent review of the record, we have concluded that other than the clerical errors noted above in the abstract of judgment, no reasonably arguable legal or factual argument exits.
DISPOSITION
The case is remanded to the trial court for it to amend the abstract of judgment to reflect the gun use enhancement is one-third the midterm of five years, or, one year eight months and Monroe’s total prison term is 22 years. The trial court shall forward the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.