Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM028078
NICHOLSON, Acting P. J.
Following an incident in which he brought a gun to school intending to confront a romantic rival, defendant Gregory Dean Wright entered a no contest plea to two counts of discharging a firearm in a school zone (Pen. Code, § 626.9, subd. (d) -- counts 3 and 4) and seven counts of felony false imprisonment (Pen. Code, § 236 -- counts 6 through 12, inclusive), and admitted he personally used a firearm in the commission of the false imprisonments (Pen. Code § 12022.5, subds. (a) & (d)).
At sentencing, the trial court designated count 3 as the principal offense, and sentenced him to the upper term of seven years on count 3.
At issue on appeal are the sentences it imposed on the subordinate terms. At first, the court announced it was “imposing” the upper term as a “base term” on each of the remaining eight counts, although it appeared thereafter to sentence defendant to consecutive sentences of one-third the midterm for each of the subordinate offenses -- counts 4 and 6 through 12 -- plus a midterm sentence on each of the gun use enhancement allegations.
The minute order of the sentencing hearing seems to explain the disparity by indicating that an upper term sentence was imposed on each subordinate count, “with all but 1/3 the middle term stayed.”
The abstract of judgment, though it correctly identifies the period of imprisonment imposed on each count, mistakenly indicates by use of the initial “U” that the imprisonment period represents an upper term sentence, rather than one-third the midterm.
On appeal, defendant correctly contends -- and the People properly concede -- that one-third the middle term is the only proper sentence on a consecutive subordinate term.
We agree that trial court here erred when it (1) stated at sentencing that it was imposing an upper term sentence for each subordinate term offense, and (2) indicated in the minute order that it had imposed an upper term sentence, but was “staying” all but one-third the midterm of that sentence.
Penal Code section 1170.1, subdivision (a) directs that when, as here, a defendant is convicted of multiple felonies, “[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed . . . .” Nothing in the statute suggests the court may impose an upper term sentence for a subordinate consecutive term and then purport to mitigate its effect by “staying” a portion of the upper term sentence.
DISPOSITION
The judgment is affirmed. The abstract of judgment shall be amended to reflect that the incarceration period imposed for each subordinate term represents a sentence of one-third the midterm on each count. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
We concur: MORRISON, J., ROBIE, J.