Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA080841. Daniel J. Buckley, Judge.
James H. Barnes for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillett, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
James Allen Moorehead (defendant) appeals from the judgment entered upon his convictions by jury of two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b), counts 1 & 2), as lesser included offenses of assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)), and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 3). As to counts 1 and 2, the jury found to be true the firearm-use enhancement within the meaning of section 12022.5. Defendant admitted the prior prison term allegation within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of 22 years four months. Defendant contends that (1) he was deprived of his rights to due process and to a jury trial under the California and United States Constitutions when the trial court sentenced him for an offense other than the one of which he was convicted; (2) there was insufficient evidence to support defendant’s convictions of assault with a semiautomatic firearm; (3) the consecutive sentences imposed under section 12022.53 were improper and must be vacated because that enhancement is inapplicable to the offenses of which defendant was convicted and the jury did not return a true finding on that enhancement; and (4) the prior prison term enhancement imposed under section 667.5, subdivision (b) must be vacated because the elements of that enhancement were not admitted, proven, or found true by the jury or the trial court.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse in part and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2007, defendant was on parole under the supervision of Parole Agent Ray Duran (Duran), a sworn peace officer. At their first meeting, in February 2007, Duran said that if he found defendant violating parole, Duran “would be out there looking for him” to return him to custody. Problems arose when at the July meeting with Duran, defendant’s behavior was erratic, as if he was using drugs. In September 2007, he failed to report.
As a result, in September and early October 2007, Duran contacted defendant’s parents and brother, Brandon, advising them to have defendant report by specified dates or Duran would issue a “Parolee at Large” warrant for defendant’s arrest. Defendant still did not report. While Duran was on vacation, from October 6, 2007 through October 15, 2007, he received a call from Brandon stating that defendant was not doing well, was acting “erratically,” as if under the influence, and “possibly ha[d a small-caliber hand] gun on him.” Duran told Brandon that defendant had to report to the agent by October 15, 2007. Defendant again failed to report.
Thereafter, with Brandon’s assistance, Duran and Parole Agent Paul Martus (Martus) were able to locate defendant at his mother’s house and attempted to follow him as he drove away from there. After initially losing defendant, the agents came to a stoplight and were next to his truck. Martus was closer to defendant, on the passenger side of the agents’ car. Defendant looked at the agents, making eye contact for a moment. Both agents were wearing bullet-proof vests with a clip-on parole agent’s badge, but did not identify themselves to defendant as parole agents. When the light changed, defendant accelerated and drove away.
Since parole agents are not authorized, Duran contacted the California Highway Patrol to obtain assistance in making a felony stop.
Meanwhile, the agents again came up behind defendant’s truck at another stoplight. Because defendant appeared to be “maneuvering the vehicle to go back and follow” the agents, they felt unsafe and tried to get away from him. Defendant followed them through a series of U-turns and made eye contact with them on a second occasion.
While attempting to make a U-turn, Duran saw defendant get out of the truck with a small-caliber, chrome handgun in his hand, point the handgun at the agents’ car, and then heard a bang, and saw a flash. Duran was unable to say the direction in which the shot was fired and testified that the gun could have been pointed anywhere. The agents’ vehicle had no bullet holes, indentations or shattered glass, nor were any bullets, bullet holes or shell casings found at the scene.
On October 16, 2007, sheriff deputies went to an address on San Angelo Drive, in the City of Industry, where defendant’s pickup truck was observed in the driveway. A deputy spoke by phone to a female inside the house and asked her and anyone else inside to step outside. Defendant, another male and the woman complied. In the backyard of the residence, a tan colored bandana around a chrome, semiautomatic handgun with a live.380-caliber bullet in the chamber and another in the magazine, was found. Duran and Martus identified the handgun as the one they had seen defendant holding.
As a result of the foregoing, defendant was charged in an amended information with two counts of assault with a semiautomatic firearm on a peace officer under section 245, subdivision (d)(2), and one count of being a felon in possession of a firearm. In connection with the assault counts, firearm use was further alleged under sections 12022.53, subdivision (b), and 12022.5, subdivisions (a) and (d). That the firearm was discharged under section 12022.53, subdivision (c) was also alleged. Finally, a prior conviction with prison term under section 667.5, subdivision (b) was alleged.
At trial, the jury was instructed on assault on a peace officer with a semiautomatic firearm, with CALCRIM No. 860; assault with a semiautomatic firearm, with CALCRIM No. 875; and simple assault, with CALCRIM No. 915. The trial court also gave CALCRIM No. 3517, which provided that “[a]ssault with a semiautomatic firearm is a lesser crime of assault on a peace officer with a semiautomatic weapon charged in Count 1 and 2. Simple assault is a lesser crime of assault with a semiautomatic weapon.” The instruction explained to the jury how to consider these lesser offenses.
The jury found defendant guilty of two assault charges. The guilty verdict forms on those counts state that defendant was guilty of “ASSAULT WITH SEMIAUTOMATIC FIREARM... in violation of PENAL CODE SECTION 245(a)(2)” and that the firearm-use allegation under section 12022.5 is true. The minute order pertaining to the verdicts reflects these findings. The abstract of judgment, however, shows that defendant was convicted of “assault on peace officer,” under section “245(A)(2).” Defendant admitted his prior convictions.
While defendant’s sentencing memorandum referred to section 12022.5, the People’s sentencing memorandum requested imposition of the upper term for the assault conviction in section 245, subdivision (b) and that “[a]dded to that term should be an additional Ten Years pursuant to PC §12022.53 subsections (a)(4), (b), and (f) since the jury found true that Defendant used a firearm during the commission of the offense.”
At the sentencing hearing, defendant argued that there were mitigating factors that justified the trial court using its discretion to impose the low term on the assault convictions and “on the 12022.5.” Before imposing sentence, the trial court noted defendant’s persistent criminal conduct beginning at the age of 19, and concluded that a concurrent sentence was not appropriate.
The trial court then sentenced defendant as follows: On count 1, it imposed the midterm of six years plus 10 years for the firearm enhancement under “section 12022.53”; on count 2, a consecutive sentence of one-third the midterm, or two years, plus one-third of 10 years (three years four months) again stating “under section 12022.53”; on count 3, it imposed a concurrent midterm of two years. An additional one year was imposed for the prior conviction under section 667.5, subdivision (b), for an aggregate state prison sentence of 22 years four months. The minute order of the sentencing and the abstract of judgment indicate that the firearm enhancements were imposed under section 12022.5.
DISCUSSION
I. The trial court did not err in sentencing defendant for assault with a semiautomatic firearm
The guilty verdict forms for counts 1 and 2 state that defendant was guilty of assault with a semiautomatic firearm and refer to section 245, subdivision (a)(2). But that statute deals only with assault with a firearm and carries a sentence of two, three or four years in prison. The correct section for assault with a semiautomatic firearmis section 245, subdivision (b), which authorizes prison terms of three, six or nine years. The trial court sentenced defendant to the middle term of six years.
Defendant contends that he was deprived of his rights to due process and a jury trial under the California and United States Constitutions when he was sentenced to a term for an offense other than the one of which he was convicted. He argues that he was sentenced under section 245, subdivision (b), to the midterm of six years, though the verdict form states that he was convicted of section 245, subdivision (a)(2), which only authorizes a midterm sentence of three years.
Respondent contends that defendant waived this claim. Respondent argues that defense counsel specifically acknowledged in the trial court that the error he now asserts is a “technical error,” that should be ignored, as concluded in People v. Escarcega. Respondent further contends that even if defendant did not forfeit the claim, the jury verdict presents nothing more than a “mere clerical error.”
People v. Escarcega (1969) 273 Cal.App.2d 853 (Escarcega).
We agree with respondent that defense counsel waived this claim by conceding in the trial court that the discrepancy in the assault guilty verdicts between the specifically named offense and the statutory reference was technical and of no impact on the conviction. (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6 [forfeiture is the intentional relinquishment or abandonment of a known right].) Defense counsel acknowledged in response to questioning by the trial court that the Escarcega opinion addressed the technical error and that reference to the wrong statute had no impact on the guilty verdicts.
But even if not waived, this claim is utterly without merit. A verdict is to be given a reasonable intendment and construed in light of the issues submitted to the jury and the instructions of the court. (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) The form of the verdict is immaterial provided the intention to convict of the crime is unmistakably expressed. (Ibid.) If such intent is evidenced, technical defects may be disregarded. (Id. at p. 1273.) Courts may correct clerical errors even after juries have been discharged. (People v. Trotter (1992) 7 Cal.App.4th 363, 369-370.) In Escarcega, the jury verdict form contained the wrong Penal Code reference, but the jury was instructed on the correct offense. The Court of Appeal concluded that “[i]n giving effect to the manifest intention of the jury, the clerical error will be disregarded. [Citation.]” (Escarcega, supra, 273 Cal.App.2dat p. 858.)
We have no difficulty here in determining that the jury intended to find defendant guilty of assault with a semiautomatic firearm and that the reference to section 245, subdivision (a)(2), was inadvertent. First, the verdict forms specifically state that assault with a semiautomatic firearm is the offense of which defendant was found guilty. Though those forms refer to section 245, subdivision (a)(2), which is assault with any firearm, we think it far more likely that an inadvertent error will occur with the statute number than with the offense that is identified by name. The statute number has no meaning to jurors, who almost certainly consider only the name of the offense.
Second, as in Escarcega, the jury was instructed on the correct offense. With CALCRIM No. 875, it was instructed on assault with a semiautomatic firearm, and not assault with a firearm. CALCRIM No. 875, which can be used for any section 245 assault offense, identified as an element of the charged offense that, “The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person.” (Italics added.) The instruction goes on to define a “semiautomatic firearm.” Nowhere does it indicate that the offense can be committed with any other type of firearm.
Third, there was no evidence at trial that the firearm was anything other than a semiautomatic firearm.
Giving the verdict forms their reasonable intendment, they reflect verdicts of guilt of assault with a semiautomatic firearm. The trial court correctly sentenced defendant for that offense and therefore did not deny him his constitutional rights.
On remand, the trial court’s minute order and the abstract of judgment must be corrected to reflect the correct offense for which defendant was convicted and the correct statute number.
II. Defendant’s assault convictions are supported by substantial evidence
Defendant contends that even if the trial court properly considered the jury’s assault verdicts as assault with a semiautomatic firearm under section 245, subdivision (b), there was insufficient evidence to support those verdicts. He argues that a semiautomatic firearm is defined as a firearm, ‘“the operating mode of which uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger.”’ Deputy Glen Eads (Eads) testified that a person would have to physically pull the slide back to load a round from the magazine into the firing weapon, thereby failing to establish that the energy of the explosive fired a cartridge and chambered a fresh round. Defendant also argues that the deputy testified that he could not tell if the firearm was semiautomatic or fully automatic without test firing it, and he did not do so. This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Eads unequivocally testified that the firearm used by defendant was a semiautomatic. He described the differences between a revolver and a semiautomatic, stating that, “The difference between a revolver -- a revolver is going to have a cylinder where the bullets are kept. It’s going to rotate as each round is fired. It will keep the casing inside the revolver. A semiautomatic is a gun that’s designed to eject the shell casing each time it fires and to load the shell casing into the chamber you’re going to have to pull the slide back to physically put a round inside the chamber.” This testimony alone was sufficient to support the finding that the firearm was a semiautomatic. “‘[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]’” (People v. Rabanales (2008) 168 Cal.App.4th 494, 509-510, quoting People v. Young (2005) 34 Cal.4th 1149, 1181.)
On further direct examination, the prosecutor elicited testimony that the slide had to be pulled back to insert the initial bullet from the magazine into the firearm. Defendant argues that because Eads testified that a person would have to physically pull back the slide to load a round from the magazine into defendant’s firearm, it was not a semiautomatic which, according to section 12126, subdivision (e) “uses the energy of the explosive in a fixed cartridge to extract a fired cartridge and chamber a fresh cartridge with each single pull of the trigger.”
Construing the evidence most favorably to the verdict, as we must, we reject this argument. While Eads testified that the slide had to be pulled back to inject a bullet from the magazine into the gun, in an apparent clarification of that testimony, he testified that that had to be done in order to load a bullet when a magazine is first placed into the firearm. A jury could reasonably have concluded that the latter testimony clarified that only the initial bullet had to be inserted into the gun by pulling back the slide. Further, Eads did not testify that the firearm did not, or could not, inject the bullet into the gun by the energy of the firing and was not questioned on this point by defense counsel.
On cross-examination, when asked if the firearm was fully automatic, Eads testified, “Without me doing a test or from a crime lab actually doing a test on the weapon I couldn’t tell you that.” Eads added that he did not test fire the gun and thus could not conclude, based on a test fire, whether or not the gun was semiautomatic. On redirect examination, he reiterated that based on his examination of the gun and working it by hand, he concluded that it was a semiautomatic firearm. Defendant argues that because Eads failed to test fire the weapon, this negates his opinion that it was a semiautomatic. In the context of his entire testimony, the jury could reasonably have concluded that the deputy identified the gun as a semiautomatic, despite its not having been test fired.
III. The consecutive firearm enhancements on counts 1 and 2 must be vacated
The amended information alleges that defendant “used a firearm within the meaning of Penal Code sections 12022.53(b) and 12022.5(a) and (d).” As we concluded in part I, ante, defendant was convicted by the jury of two counts of assault with a semiautomatic firearm, the lesser included offense of assault with a semiautomatic firearm on a peace officer. The jury found to be true in connection with those counts the firearm-use enhancement contained in section 12022.5. Those verdict forms did not contain any reference to section 12022.53. Section 12022.5 authorizes sentences of three, four or 10 years, while section 12022.53, subdivision (b) authorizes a 10-year sentence.
The verdict forms for the charged offenses of assault with a semiautomatic firearm on a peace officer that were submitted to the jury did contain the section 12022.53, subdivisions (b) and (c) allegations.
The prosecution’s sentencing memorandum argued for a 10-year firearm sentence under section 12022.53, subdivision (b). It made no reference to section 12022.5. Defendant’s sentencing memorandum argued for the low term under section 12022.5. At the sentencing hearing, the trial court purported to impose the section 12022.53 enhancement, sentencing defendant to a consecutive 10-year term on count 1 and to three years four months (one-third of 10 years) on count 2. Both the minute order of that hearing and abstract of judgment nonetheless state that the firearm enhancement was imposed under section 12022.5.
Defendant contends that the trial court erred in imposing the firearm enhancement under section 12022.53, subdivision (b) on counts 1 and 2 on the grounds that (1) the lesser included charges of which defendant was convicted are not listed among the offenses that are subject to the section 12022.53, subdivision (b) enhancement; (2) the jury did not return a true finding as to that section; and (3) for the trial court to have imposed the high term of 10 years under section 12022.5 would have violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham), as no aggravating factors were articulated which were found by a jury beyond a reasonable doubt. Defendant asks us to vacate the consecutive 10-year term firearm enhancement on count 1 and the three-year four-month consecutive firearm enhancement imposed on count 2 pursuant to section 12022.53.
Respondent contends that the trial court merely misspoke when it said that it was imposing the section 12022.53 enhancement and that it properly imposed the upper term under the precepts of Cunningham.
It is clear that the trial court lacked jurisdiction to impose the firearm enhancement in section 12022.53, subdivision (b). That section applies only to the felonies enumerated in subdivision (a). Assault with a semiautomatic firearm under section 245, subdivision (b) is not included in that list. Thus, while section 12022.53 would have been applicable to the charged offense of assault on a peace officer with a semiautomatic firearm under section 245, subdivision (d)(2), it is inapplicable to the lesser included offense of which defendant was convicted, assault with a semiautomatic firearm under section 245, subdivision (b).
The question remains whether the trial court simply misspoke in imposing the firearm-use enhancement under section 12022.53, actually intending to impose the upper term for the firearm-use enhancement in section 12022.5, or whether it was operating under a misconception as to which enhancement was applicable. It is impossible on the record before us to confidently conclude that the trial court merely misspoke. The trial court was faced with an information that referred to both section 12022.53 and section 12022.5, counsel argued both enhancements, and some of the verdict forms submitted to the jury included the section 12022.53, subdivision (b) firearm enhancement and some the section 12022.5 enhancement.
As previously stated, section 12022.53, subdivision (b) imposes a 10-year term for the use of a firearm in connection with the underlying offenses specified in subdivision (a) of that section. Section 12022.5, imposes a three, four or 10-year term for firearm use in connection with any felony. The trial court’s comments provide no clue as to whether it was aware that it was sentencing under section 12022.5. It made no reference to the fact that it had to select among three sentencing choices available to it under section 12022.5 and stated no findings to support the upper term sentence, if it was sentencing under that section. It referred to only one aggravating factor, defendant’s recidivism, and that in connection with imposing sentence on counts 1 and 2 consecutively, rather than concurrently. That single factor could not be used to both sentence consecutively and impose the upper term. (People v. Kozel (1982) 133 Cal.App.3d 507, 540; § 1170, subd. (b).)
Also telling is that the prosecutor argued for the upper term on the assault convictions in both his sentencing memorandum and at the sentencing hearing, yet the trial court chose the middle term. This leaves it uncertain whether the trial court would have imposed the upper term on the firearm enhancement under section 12022.5, if it was aware that it was sentencing under that section.
The fact that the minute order of the sentencing hearing and the abstract of judgment reflect that the section 12022.5 enhancement was imposed provides no assurance that those entries were not inadvertently made or that the trial court was aware that it was imposing that enhancement at the time that it made the oral pronouncement.
Therefore, because the trial court lacked jurisdiction to impose the firearm enhancement under section 12022.53, and it is unclear whether it intended to sentence under section 12022.5 and was aware of the sentencing choices under that section, we modify the judgment to strike the firearm enhancement under section 12022.53 and remand to the trial court to resentence defendant under section 12022.5.
In light of this disposition, we need not consider defendant’s other arguments in support of this contention.
IV. Sufficiency of evidence of prior prison term enhancement
Defendant was charged with a prior conviction involving a prison term within the meaning of section 667.5, subdivision (b). Before jury selection, at defendant’s request, the trial court bifurcated the allegation of prior convictions. The prosecutor then asked if defendant wanted to stipulate to the convictions with respect to count 3, the felon in possession of a gun charge. The defendant agreed. The trial court took defendant’s waiver of his right to a jury trial on the prior convictions for purposes of count 3, and defendant admitted the two priors for purposes of that count.
After the jury verdicts were recorded, the trial court inquired whether counsel had anything left to raise before the jury was excused. Both counsel responded that there was nothing, and the jury was discharged. When the trial court inquired as to scheduling, defense counsel stated that “we have the issue of the bifurcation.” Defendant was willing to stipulate to the priors and counsel suggested that the trial court take a waiver on that and an admission “that those [two prior] convictions occurred.”
Defendant now contends that there was insufficient evidence to support the prior prison term enhancement because all of the elements of that enhancement were not found true by a jury or a judge. He argues that his admission of prior convictions did not admit all of the elements necessary to sustain the section 667.5, subdivision (b) enhancement. This contention is without merit.
“All enhancements 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.” (§ 1170.1, subd. (e).) Due process requires that the prosecution prove beyond a reasonable doubt every element of a sentencing enhancement allegation. (People v. Tenner (1993) 6 Cal.4th 559, 566.) In order to prove a section 667.5, subdivision (b) enhancement, the prosecution must prove that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed the term of imprisonment, and (4) did not remain free of both prison custody and commission of a new offense resulting in a felony conviction for a period of five years. (People v. Tenner, supra, at p. 563.) “Felony convictions are not the same as felony prison terms. [Citation.] ‘The distinction between a prior felony conviction and a separate prison term served for such felony is obvious. A prior felony conviction could well have resulted in something less than confinement in the state prison, in which event no enhancement would be called for under section 667.5, subdivision (b).’ [Citations.]” (People v. Maki (1984) 161 Cal.App.3d 697, 700.) Absent an admission or proof of these elements, the prosecution did not carry its burden of proving the elements of the section 667.5, subdivision (b) allegations beyond a reasonable doubt. (See People v. Lopez (1985) 163 Cal.App.3d 946, 951.)
Viewing defendant’s posttrial admissions in the context of the entire proceedings (cf. People v. Mosby (2004) 33 Cal.4th 353, 356 [court to evaluate totality of circumstances surrounding admission of sentencing enhancement allegations to determine if admission voluntary and intelligent]), it is clear that defendant was admitting the allegations set forth in the information, which included all elements necessary to support an enhancement under section 667.5, subdivision (b). (See People v. Ebner (1966) 64 Cal.2d 297, 303 [“[d]efendant’s admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information”]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served”]; see also People v. Welge (1980) 101 Cal.App.3d 616, 623 [“admission of prior convictions cannot be construed as an admission that separate terms were served therefor, in the absence of an allegation in the information or complaint that the defendant served separate terms on the prior convictions”].)
The information alleged the elements of the prior prison term enhancement. After discharge of the jury, defense counsel stated that they still had the “issue of the bifurcation.” Counsel said defendant was willing to stipulate to the prior convictions, making clear that it was defendant’s intent to admit the prior prison term allegation, as he stated, “We can take a waiver on that and an admission, and then that would only leave the issue of motions and sentencing..., if any.” (Italics added.) Immediately after defense counsel’s statement, the trial court told defendant that he had a right to a trial on “whether or not these prior convictions occurred as to how it impacts sentencing.” (Italics added.) Defendant then admitted the prior convictions.
These comments demonstrate that defendant knew and intended that this stipulation would resolve all of the allegations leaving only “motions and sentencing.” Defendant had admitted his alleged prior convictions for purposes of the felon in possession of a firearm charge in count 3. The only remaining purposes of those convictions after the jury verdict was on the bifurcated prior prison term enhancement and eligibility for probation allegations. It is apparent that the stipulation was entered into “in order to avoid trial on the only remaining issue, i.e., the applicability of Penal Code section 667.5, subdivision (b).” This conclusion is buttressed by the fact that there was no colorable defense to the prior prison term allegation, as defendant was charged in this matter with shooting at his parole officer, thereby establishing that he was not free from custody for more than five years before committing the charged acts.
DISPOSITION
The firearm enhancement under section 12022.53 is stricken and the matter is remanded to the trial court to resentence defendant under the firearm enhancement in section 12022.5. The judgment is otherwise affirmed. On remand the trial court is also directed to correct the minute order of June 12, 2008, to reflect that defendant was convicted on counts 1 and 2 of assault with a semiautomatic firearm under section 245, subdivision (b), to correct the abstract of judgment to reflect that defendant was convicted of that offense on those counts, and to modify the abstract of judgment to reflect the trial court’s sentencing on remand.
We concur: BOREN, P. J., DOI TODD, J.