Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF109266, Robert George Spitzer, Judge.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. FACTS AND PROCEDURAL HISTORY
Defendant, codefendant Carlos Alvarado, victim David Martinez, and a group of other men totaling between 15 and 40 individuals were incarcerated in the same jail cell. Deputies heard a tussle erupt in the cell and arrived to find Martinez bleeding from facial wounds inflicted by razor blades attached to a toothbrush. Martinez received between 12 to 13 stitches to his face. A deputy found defendant and Daniel Noriega, another inmate, at the back of the cell wiping blood off their faces and hands with a T-shirt. During a later search of the cell, a deputy found a bloody jail-issued T-shirt on the floor. Defendant and Noriega were the only occupants of the cell who did not have their T-shirts.
Martinez initially and at trial declined requests to identify who cut him; however, during an intermediate interview, a recording of which was played to the jury, he identified defendant and Alvarado as his assailants. A deputy’s search of Alvarado’s property box revealed a police report mentioning Martinez’s cooperation with the police in a prior case against an East Side Riva gang member. A search of defendant’s property box uncovered a couple of pages from the same report. Detective Joe Miera testified that defendant and Alvarado were active members of East Side Riva. The resultant scar on defendant’s face constituted a “snitch mark.”
The jury convicted defendant of assault with a deadly weapon, other than a firearm, by force likely to produce great bodily injury (count 1—Pen. Code, § 245, subd. (a)(1)) and aggravated mayhem (count 2—§ 205). Additionally, the jury found true gang enhancements attached to both counts (§ 186.22, subd. (b)); however, it found that defendant did not personally inflict great bodily injury in his commission of the count 1 offense (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code unless otherwise indicated.
Prior to sentencing, the court noted that it was inclined to sentence defendant under count 2 and “with respect to the findings under Count 1, to stay and strike those pursuant to Penal Code Section 654.” The People submitted on the court’s indicated sentence. Defense counsel noted, “I agree with the Court. I believe Count 1 must be stricken under [section] 654.” Thereafter, the court imposed a life term on count 2 pursuant to which defendant would be ineligible for parole until his service of at least 15 years (§§ 205, 186.22, subd. (b)(5)); however, the court never actually imposed, struck, or stayed sentence on count 1 or its enhancement. Nevertheless, the sentencing minute order and abstract of judgment reflect that the court imposed the midterm of three years on count 1 and a consecutive 10 years on the gang enhancement, but stayed imposition of those terms pursuant to the dictates of section 654.
II. DISCUSSION
Defendant contends the court erred in imposing a 10-year stayed term for the count 1 gang enhancement because the jury failed to find defendant guilty of a violent felony in that it explicitly found that he had not personally inflicted great bodily injury in his commission of the assault. (§§ 186.22, subd. (b)(1)(C), 667.5, subd. (c)(8), 12022.7, subd. (a).) Rather, he maintains the court was limited to imposing a five-year term on the enhancement because, as found by the jury, his commission of the count 1 offense amounted only to a serious felony. (§§ 186.22, subd. (b)(1)(B), 1192.7, subd. (c)(13).) The People argue the matter must be remanded for resentencing because the court never actually orally pronounced sentence on count 1 or its enhancement. We agree with the People.
Failure to impose or strike sentence on a count or enhancement is an unauthorized sentence and is subject to correction on remand. (People v. Irvin (1991) 230 Cal.App.3d 180, 188-193.) The trial court clerk is limited to preparing a minute order and abstract of judgment which accurately reflect the oral pronouncements of the trial court. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-389.) The clerk cannot modify a minute order or abstract of judgment even to the extent that such modifications may “correct” the sentence actually imposed by the trial court. (Ibid.)
We agree with defendant that remand would appear to be a waste of judicial resources, particularly as the court’s indicated sentence on count 1 was virtually stipulated to by both parties, and the legally authorized sentence on the count 1 gang enhancement is crystal clear. Nevertheless, defendant has provided us with no authority for this court’s power to dictate to the trial court the sentence for a count upon which the trial court has never pronounced sentence. This is a reviewing court; hence, we cannot review that which has not occurred. Thus, the matter must be remanded to the trial court for an explicit pronouncement of sentence on the count 1 offense and the attached gang enhancement.
III. DISPOSITION
The matter is remanded to the trial court with directions to pronounce sentence on the count 1 offense and the attached gang enhancement. In all other respects, the judgment is affirmed.
We concur: Ramirez, P.J., Gaut, J.