Filed 7/31/17 P. v. Segura CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SALVADOR HIGAREDA SEGURA,

Defendant and Appellant.

F072749

(Super. Ct. No. MCR030500A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Salvador Higareda Segura contends on appeal that the trial court’s pronouncement of judgment did not accurately reflect the offense to which he pled guilty. The People concede and we agree. Accordingly, we vacate the sentence and remand for resentencing and correction of the record.
BACKGROUND
On December 17, 2007, defendant was charged with unlawfully “buying and receiving” a Chevy Astro van (Pen. Code, § 496d, subd. (a); count 1) and with unlawfully driving or taking a Chevy Astro van (Veh. Code, § 10851, subd. (a); count 2).
At the plea hearing on March 28, 2008, defense counsel informed the trial court that defendant would be pleading guilty to “violating Penal Code Section 496.” The court told defendant he “would be admitting a felony violation of Penal Code Section 496(a), that’s possession of stolen property, the Astro van.” When the court took defendant’s plea, it stated, “That’s the felony violation of Penal Code Section 496(b), Subdivision (a), possession of stolen property, the Chevy Astro van.” The plea form signed by defendant referred to the offense as a violation of “Penal Code section 496(a).” The clerk’s minute order recorded the plea as a no contest plea to “Count 1, felony PC 496d(a).”
On May 1, 2008, the trial court sentenced defendant to eight months for “a felony violation of Penal Code Section 496, subdivision (a),” to be served consecutively to the principal term in another case. The minute order referred to it as “section 496(a) PC,” and the abstract of judgment referred to it as “PC 496(a) Possession of Stolen Prop.”
On July 29, 2015, defendant filed a petition for resentencing pursuant to Proposition 47 (§ 1170.18). The petition referred to his conviction as “Poss of stolen property Cal Penal Code § [blank].” The trial court’s order setting a hearing on the matter referred to count 1 as a “violation of Poss of stolen Property PC 496(a).” On November 5, 2015, the trial court, noting the many conflicts in the record, dismissed the petition without prejudice.
On November 16, 2015, defendant filed a notice of appeal.
DISCUSSION
“ ‘It may be said … as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’ ” (People v. Smith (1983) 33 Cal.3d 596, 599.)
In this case, defendant maintains the matter should be remanded for pronouncement of judgment and correction of the record to reflect a conviction under section 496d, subdivision (a) for receiving a stolen vehicle, not section 496, subdivision (a) for receiving stolen property. The People agree. In light of the parties’ agreement, we will remand with directions.
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court for resentencing and correction of the record to reflect a conviction under Penal Code
section 496d, subdivision (a) for receiving a stolen vehicle. The court is directed to forward certified copies of the corrected minute order(s) and the abstract of judgment to the appropriate entities.