P. v. Webber
Filed 4/13/07 P. v. Webber CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. KRYSTEN WEBBER, Defendant and Appellant. | G035946 (Super. Ct. No. 04ZF0055) ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; CHANGE IN JUDGMENT |
It is ordered that the opinion filed herein on March 14, 2007, be modified as follows:
1. On page 1, in the first editorial paragraph, change Affirmed to Affirmed with directions.
2. On page 2, last sentence of the second full paragraph, beginning Finding no basis is deleted and the following sentence is inserted in its place:
Finding no basis to overturn the judgment, we affirm, but with directions to modify the abstract of judgment and the July 29, 2005 minute order as described herein.
3. At the end of the last paragraph on page 25, after the sentence ending singly or in combination, add as footnote 3 the following footnote:
3The Attorney General concedes the abstract of judgment and the trial courts minute order entered after sentencing on July 29, 2005, do not fully reflect the courts oral rendition of judgment, which controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The record transcript shows the abstract of judgment and the minute order accurately reflect a sentence of life in prison without the possibility of parole plus a 10-year firearm use enhancement ( 12022.53, subd. (b)) on count 1 (first degree murder with robbery special circumstance). But the abstract of judgment and the minute order must each be modified to show that by imposing the aggravated term on count 3 (first degree robbery), the court imposed the upper term of six years ( 213, subd. (a)(1)(B)). Count 3 must also be modified to show the court imposed a 10-year firearm use enhancement ( 12022.53, subd. (b)), for a total term of 16 years on count 3, to be served consecutive to the sentence in count 1, but which the court stayed pursuant to section 654. Finally, count 4 (felon-in-possession) must be modified to show the court imposed the midterm sentence of two years, to run concurrent to the sentences on counts 1 and 3. These clerical modifications do not change the judgment but rather reflect the sentence actually imposed. (In re Roberts (1962) 200 Cal.App.2d 95, 97.)
4. On page 25, in the disposition, delete Judgment affirmed and substitute the following:
The trial court is directed to modify the abstract of judgment and the minute order entered July 29, 2005, in the following manner: Count 3 must show an upper term of six years plus a 10-year firearm use enhancement ( 12022.53, subd. (b)), for a total term of 16 years, to run consecutive to the sentence in count 1, but imposition of which the trial court stayed ( 654); count 4 must show a midterm sentence of two years, to run concurrent with the sentences on counts 1 and 3. The sentence shown for count 1 is accurate and needs no modification. The trial court is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. ( 1260.) In all other respects, the judgment is affirmed.
These modifications effect a change in the judgment. The petition for rehearing is DENIED.
ARONSON, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
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