Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVI022374 Margaret Powers, Judge. Affirmed with directions.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
King J.
A jury convicted defendant Derrick Anthony Smith of one count of the sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and one count of the sale of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). In a bifurcated court trial, the court found true allegations that defendant had four prior convictions under Penal Code section 667.5, subdivision (b). At a sentencing hearing held on December 16, 2005, defendant was sentenced to state prison for an aggravated term of five years on count 1 and a concurrent three-year term on count 2. The court imposed consecutive one-year terms for each of the four prior convictions, resulting in an aggregate sentence of nine years. Defendant was given custody credits of 170 days.
In an appeal from the original judgment, defendant argued (among other arguments) that the court erred by making a dual use of defendant’s prior record to both aggravate the principal term and impose the four enhancement terms. In an unpublished opinion, we affirmed the judgment as to the conviction, but reversed the sentence and directed that a new sentencing hearing be held because we could not determine from the record whether the trial court made an improper dual use of defendant’s four prior felony convictions. (People v. Smith (Oct. 9, 2007, E040604) [nonpub. opn.].)
A new sentencing hearing was held on February 15, 2008. The trial court sentenced defendant to the middle term of four years on count 1, plus a one-year term (one-third of the midterm) on count 2 to be served consecutive to the term on count 1. The court imposed consecutive one-year terms for each of the four prior convictions, resulting in an aggregate sentence of nine years. The court stated that “[t]he credits would be the same, but we will make it all nunc pro tunc to the original sentencing date of 12/16/05.” The amended abstract of judgment, like the original abstract, sets forth 170 days of credit for time served; however, instead of referring to the original sentencing date, the amended abstract states that the sentence was pronounced on February 15, 2008.
In this appeal, defendant argues that the reference to the February 15, 2008, sentencing hearing on the amended abstract of judgment must be corrected to reflect the court’s order that the sentence be made nunc pro tunc to the original sentencing date. The People do not dispute the contention and expressly agree that the abstract of judgment should be corrected to reflect that the sentence and credits be calculated as of the original sentencing date of December 16, 2005. We agree.
An appellate court may correct errors in an abstract of judgment that do not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) By referring only to the sentencing hearing on February 15, 2008, the amended abstract erroneously fails to accurately reflect the court’s oral pronouncement. Accordingly, a new abstract of judgment must be prepared to correctly state that sentence and credits are to be calculated based upon the original sentencing date of December 16, 2005.
DISPOSITION
The judgment is affirmed. Upon remand, the trial court shall direct that an amended abstract of judgment be prepared to reflect that defendant’s sentence and credits for time served are ordered nunc pro tunc to the original sentencing date of December 16, 2005. The trial court is directed to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: Hollenhorst Acting P.J., McKinster J.