P. v. Craig

Filed 9/28/06 P. v. Craig CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Modoc)

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Following an altercation with an acquaintance, in which he punched the victim several times in the face, defendant Robert Craig, Sr., was charged with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); further undesignated statutory references are to this code), and battery with serious bodily injury (§ 243, subd. (d)). As to both offenses, it was alleged defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), and it was also alleged defendant had been convicted of two prior strike offenses (§ 1170.12/667, subds. (b)-(i)) and had served a prior prison term (§ 667.5, subd.(b)).

In a negotiated plea bargain, defendant agreed to plead no contest to the battery charge, and to admit one prior strike conviction (the consequence of which would be to double the term of the underlying offense), and one prior prison term, in exchange for dismissal of the remaining charge and the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). After defendant’s plea was entered, the court granted the district attorney’s motion to dismiss the assault charge, the great bodily injury enhancement, and the second strike allegation.

At sentencing, the trial court announced the imposition of a three-year midterm sentence on the battery offense, doubled by virtue of defendant’s prior strike conviction, plus a one-year enhancement attributable to defendant’s having served a prior prison term, for a total aggregate prison sentence of seven years.

The abstract of judgment correctly reflects the seven-year prison sentence, but it inexplicably indicates that it is comprised of the following components: a three-year midterm for the battery conviction, plus a three-year great bodily injury enhancement pursuant to Penal Code section 12022.7, subdivision (a), plus a one-year enhancement attributable to defendant’s having served a prior prison term.

On appeal, defendant asks us to order the abstract corrected to reflect sentence components actually imposed by the trial court; i.e., to show that his mid-term sentence was doubled by virtue of defendant’s prior strike conviction, and to eliminate the reference to a great bodily injury enhancement. The Attorney General concedes the error. We agree that the abstract of judgment must be corrected.

The record of the oral pronouncement of the court controls over the minute order; any discrepancy between the two is presumed to be the result of clerical error. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Price (2004) 120 Cal.App.4th 224, 242; cf. People v. Mitchell (2001) 26 Cal.4th 181, 185 [where an abstract of judgment differs from the sentencing court’s oral judgment, the abstract does not control].) Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. (People v. Price, supra, at p. 242.)

DISPOSITION

The clerk of the superior court is ordered to correct the abstract to reflect that defendant’s three-year midterm sentence was doubled by virtue of his prior conviction of a strike offense, replacing the incorrect notation that a three-year enhancement was imposed pursuant to Penal Code section 12022.7, subdivision (a). The clerk must then send a copy to the California Department of Corrections and Rehabilitation. With this correction, the judgment is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

RAYE , J.

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