P.v . Gorham

Filed 6/28/06 P.v . Gorham CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Loretta Murphy Begen, Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Michael P. Farrell, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant, Russell Dean Gorham, of transporting a controlled substance (Health & Saf. Code, § 11379, count one), possession of a controlled substance for sale (Health & Saf. Code, § 11378, count two), possession of a controlled substance while possessing a firearm (Health & Saf. Code, § 11370.1, count three), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a),^[1] count four).^[2] The jury also found true an enhancement alleged as to counts one and two that Gorham was armed with a firearm when he committed these offenses (§ 12022, subd. (c)). In a separate proceeding the trial court found true allegations that Gorham had four prior convictions within the meaning of the three strikes law.^[3]

On May 21, 2003, the court denied Gorham's Romero ^[4] motion and sentenced him to an aggregate term of 54 years to life as follows: 25 years to life on count one, a 4-year arming enhancement in that count, a consecutive indeterminate term of 25 years to life on count four, and stayed terms on the remaining counts and enhancement.

Following a timely appeal, on December 29, 2004, in an unpublished opinion this court found that the trial court misunderstood its sentencing discretion and remanded the matter for the limited purpose of allowing the trial court to consider whether to impose concurrent or consecutive indeterminate terms on counts one and four.

On May 13, 2004, the court, without Gorham being present, sentenced him to an aggregate term of 29 years to life as follows: an indeterminate term of 25 years to life on count one, a four-year arming enhancement in that count, a concurrent indeterminate term of 25 years on count four, and stayed terms on the remaining counts and enhancement. The court also ordered Gorham to provide DNA samples to the Department of Corrections. On this appeal Gorham contends: 1) the court prejudicially erred by sentencing him in absentia; 2) the court's order requiring him to provide a DNA sample is unauthorized; and 3) his abstract of judgment contains certain errors. We will find merit to Gorham's second and third contentions. We will also find that the court erred in calculating Gorham's credits and by its failure to impose a mandatory lab fine and applicable assessments. In all other respects, we will affirm.

FACTS

On September 23, 2002, Gorham and his girlfriend were arrested at a rest stop on Highway 99 after officers found a loaded gun, a rifle, bullets, and over 821.8 grams of methamphetamine in the car they were traveling in.

The Resentencing Issue

Gorham contends that his case did not involve a limited remand because his sentence was vacated. Thus, according to Gorham, his appeal resulted in returning him to the status of an unsentenced defendant who was â€