People v. De La Cruz CA3

Filed 2/25/14 P. v. De La Cruz CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072690

Plaintiff and Respondent, (Super. Ct. No. 09F07147)

v.

ALFONSO VALERIANO DE LA CRUZ,

Defendant and Appellant.

A jury found defendant Alfonso Valeriano De la Cruz guilty of six felonies and one misdemeanor. In a previous appeal, we reversed defendant’s conviction on one felony conviction -- assault with a deadly weapon on a peace officer (count seven) -- and remanded the matter to the trial court for resentencing. (People v. De la Cruz (July 27, 2012, C067947) [nonpub. opn.].) Following his resentencing on remand, defendant brings the instant appeal. He contends that the abstract of judgment and minute order of sentencing must be amended to conform to the trial court’s oral pronouncement of sentence on resentencing. The

1

People concede that the abstract of judgment and minute order of sentencing must be corrected and we agree that both should be corrected as urged by the parties. DISCUSSION I Correction is Required to Reflect that Sentences on Counts Three, Five and Six were Stayed At the resentencing hearing, the trial court imposed sentences on counts three (assault with a deadly weapon), five (firing from a vehicle), and six (flight from officers) but ordered those sentences to be stayed pursuant to Penal Code section 654.1 The abstract of judgment fails to reflect the trial court’s order that the sentences for those three convictions be stayed. The minute order reflects the trial court’s order that the sentences on counts three and five be stayed, but not on count six. The parties agree the minute order and abstract of judgment should be corrected to reflect the court’s intention to stay the sentences imposed on counts three, five and six pursuant to Penal Code section 654.2 A discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The act of entering the judgment is ministerial. If the judgment fails to reflect the court’s pronounced judgment, the record can be corrected at any time to reflect the actual oral judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Hartsell (1973) 34 Cal. App.3d 8, 13.) We agree with the parties the court erred in imposing concurrent sentences on counts three, five and six before ordering the sentences stayed. “ ‘It has long been established that the imposition of concurrent sentences is precluded by section 654