Filed 10/30/26 P. v. Harmon CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B350975
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA030176)
v.
DERICK DARNELL HARMON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed with
directions.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jason C. Tran and Megan Moine, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________
In 1994, Derick Darnell Harmon was convicted of robbery
and sentenced to 50 years to life in prison, with three 1-year prior
prison term enhancements (Pen. Code,1 § 667.5, subd. (b)) run
concurrently with the rest of his sentence. He appeals from an
amended judgment entered in 2026 after a full resentencing on
the robbery conviction pursuant to section 1172.75, a statute
providing resentencing relief for custodial defendants with now-
invalid prior prison term enhancements due to an amendment to
section 667.5, subdivision (b). At the resentencing hearing, the
court struck the prior prison term enhancements and sentenced
Harmon to 45 years to life in prison, comprised of an
indeterminate term of 25 years to life for the robbery under the
“Three Strikes” law and a consecutive determinate term of 20
years for four prior serious felony conviction enhancements
(§ 667, subd. (a)).
Harmon contends the determinate portion of his sentence is
unauthorized and must be vacated because (1) it includes only
enhancements and no determinate term for an offense, and
(2) the Three Strikes law provision under which the court
imposed the indeterminate term (§ 667, subd. (e)(2)(A)(ii)) does
not provide for the imposition of enhancements. These
arguments are unsupported by applicable authority and lack
merit. We affirm with directions to the trial court to correct
clerical errors (described post), that appear in the 1994
sentencing minute order, judgment, and abstract of judgment
and the 2026 amended abstract of judgment.
1 Undesignated statutory references are to the Penal Code.
2
BACKGROUND
At Harmon’s original sentencing in December 1994, after
finding prior conviction allegations to be true, the court imposed
a third strike sentence of 25 years to life in prison under section
667, subdivision (e)(2)(A)(ii), for the second degree robbery
(§ 211), plus a consecutive determinate term of 25 years for five
prior serious felony enhancements under section 667, subdivision
(a)(1) (five years each), for a total of 50 years to life.2 The court
imposed three 1-year prior prison term enhancements under
section 667.5, subdivision (b), and ran the three-year term
concurrently with the rest of Harmon’s sentence.
At the time Harmon was sentenced in 1994, section 667.5,
subdivision (b), required a trial court, when sentencing a
defendant to prison for a felony, to impose a one-year term for
each prior prison term the defendant had served, unless the
defendant had remained free of custody for at least five years.
Effective January 1, 2020, Senate Bill No. 136 amended section
667.5, subdivision (b), to limit the enhancement to prior prison
2 The December 13, 1994 minute order and judgment and
the December 19, 1994 abstract of judgment indicate the court
sentenced Harmon to a 20-year determinate term for four prior
serious felony enhancements, plus a five-year term for the
robbery, in addition to 25 years to life for the same robbery. This
is clerical error, as the oral pronouncement of judgment reflected
in the reporter’s transcript of the sentencing shows that the court
imposed a 25-year determinate term for five prior serious felony
enhancements in addition to 25 years to life for the robbery, and
the court did not sentence Harmon twice for the same robbery by
imposing an additional five-year upper term for the robbery. As
set forth post, we will direct the superior court to correct the
clerical errors.
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terms served for sexually violent offenses. (Sen. Bill No. 136
(2019-2020 Reg. Sess.); Stats. 2019, ch. 590, § 1.) In 2021, the
Legislature enacted Senate Bill No. 483, which made Senate Bill
No. 136’s changes to the law retroactive and added former section
1171.1, later renumbered section 1172.75, to achieve this purpose
by providing resentencing relief for custodial defendants with
now-invalid prior prison term enhancements. (Sen. Bill No. 483
(2021-2022 Reg. Sess.); Stats. 2021, ch. 728, § 3; § 1172.75.)
In 2022, the California Department of Corrections and
Rehabilitation identified Harmon as someone who was
potentially eligible for relief under former section 1170.1 (now
section 1172.75) and so informed the superior court. Without
notifying the parties or having them present, on July 21, 2022,
the court (Judge Ricardo R. Ocampo) struck the three section
667.5, subdivision (b), prior prison term enhancements and
stated on the record that it was leaving the remainder of
Harmon’s sentence of 50 years to life unchanged. The court did
not afford Harmon a full resentencing under section 1172.75.
Harmon filed an untimely appeal, which we treated as a petition
for writ of habeas corpus and granted, with no objection from the
Attorney General, and we remanded the matter for a full
resentencing hearing. (People v. Harmon (Dec. 9, 2024, B335051
[nonpub. opn.], pp. 4-5, 7-8.)
Upon remand, Harmon filed a sentencing memorandum,
asking the court (1) to dismiss four of his five prior strike
convictions, in addition to striking the one-year prior prison term
enhancements, and (2) to resentence him to a determinate term
as a second strike offender. He also pointed out that at his
original sentencing, two of the five prior serious felony conviction
enhancements the court imposed were for convictions arising
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from the same case. (See § 667, subd. (a)(1) [“A person convicted
of a serious felony who previously has been convicted of a serious
felony in this state . . . shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought
and tried separately”], italics added.) He requested a sentence of
30 years: the upper term of five years for the robbery, doubled to
10 years because of one prior strike conviction, plus a consecutive
term of 20 years for four prior serious felony convictions on
charges brought and tried separately.
The prosecution filed a sentencing memorandum, agreeing
with Harmon that the court should strike the prior prison term
enhancements as well as one of the two prior serious felony
enhancements that arose from the same case. The prosecution
disagreed with Harmon’s request for dismissal of prior strike
convictions and resentencing as a second strike offender, arguing
that it “would endanger public safety” based on Harmon’s
criminal history and prison conduct.
On November 21, 2025, the court (Judge Teresa P. Magno)
held a full resentencing hearing pursuant to section 1172.75.
Harmon conceded he had five prior strike convictions for
purposes of the Three Strikes law. After reviewing Harmon’s
criminal history and prison conduct, and hearing argument from
the parties, the court denied Harmon’s request to dismiss four of
the five prior strike convictions or any of them, finding Harmon
was within “the spirit of the Three Strikes law.” The court
explained: “I do find that deviating from the original term may
endanger public safety, and I find that there is clear and
convincing evidence that defendant’s age, time served have not
reduced his risk for future violence. And I don’t believe
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circumstances have changed since the original sentencing so that
continued incarceration is no longer in the interest of justice.”
The court struck the three prior prison term enhancements and
one of the prior serious felony conviction enhancements and
sentenced Harmon to 45 years to life in prison: an indeterminate
third strike term of 25 years to life for the robbery, plus a
consecutive determinate term of 20 years for four 5-year prior
serious felony conviction enhancements, resulting in a five-year
reduction from his original sentence.
On March 5, 2026, the court entered a new abstract of
judgment, which reflects the indeterminate term of 25 years to
life for the robbery that the court imposed. However, this
abstract of judgment incorrectly indicates that the court also
imposed the upper term of five years for the same robbery, and
that the court imposed only three prior serious felony conviction
enhancements totaling 15 years, rather than four of these
enhancements totaling 20 years. As set forth post, we will direct
the superior court to correct these clerical errors.
Harmon filed a timely notice of appeal.
DISCUSSION
A. Harmon’s Sentence is Authorized
Harmon contends the determinate portion of his sentence is
“unauthorized” and “must be vacated,” arguing (1) a court may
not impose an enhancement when the sentence does not include a
determinate term for a substantive offense because a determinate
sentence may not “consist[] solely of enhancements,” and (2) the
Three Strikes law provision under which the court imposed the
indeterminate term of 25 years to life (§ 667, subd. (e)(2)(A)(ii))
does not provide for the imposition of enhancements. These
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arguments are unsupported by applicable authority and lack
merit.
In support of his argument that a determinate term may
not consist solely of enhancements, Harmon notes that section
1170.1, subdivision (d)(1), permits imposition of an additional
term for an enhancement when “the court imposes a
[determinate] sentence for a felony pursuant to section 1170.”
His citation of section 1170.1 is inapposite as this provision does
not apply to his indeterminate sentence. (See People v. Williams
(2004) 34 Cal.4th 397, 402 (Williams) [“Section 1170.1, however,
applies only to determinate sentences”].) As he acknowledges, he
was sentenced to an indeterminate term of 25 years to life for the
robbery pursuant to section 667, subdivision (e)(2)(A)(ii).
Next, he argues that a court may not enhance a sentence
imposed under section 667, subdivision (e)(2)(A)(ii), because this
provision does not mention imposition of enhancements. Section
667, subdivision (e)(2)(A), states, in full:
“Except as provided in subparagraph (C), if a defendant has
two or more prior serious or violent felony convictions as defined
in subdivision (d) that have been pled and proved, the term for
the current felony conviction shall be an indeterminate term of
life imprisonment with a minimum term of the indeterminate
sentence calculated as the greatest of:
“(i) Three times the term otherwise provided as
punishment for each current felony conviction subsequent to the
two or more prior serious or violent felony convictions.
“(ii) Imprisonment in the state prison for 25 years.
“(iii) The term determined by the court pursuant to Section
1170 for the underlying conviction, including any enhancement
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applicable under Chapter 4.5 (commencing with Section 1170) of
Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”
Section 667, subdivision (e)(2)(A) speaks to calculation of
the minimum indeterminate term. It includes no language
precluding imposition of enhancements on an indeterminate
sentence of 25 years to life.
Section 667, subdivision (a)(1), which describes the prior
serious felony conviction enhancement imposed here, includes no
limitation precluding its imposition on an indeterminate sentence
of 25 years to life. On the contrary, it expressly allows it: “A
person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense
committed in another jurisdiction that includes all of the
elements of any serious felony, shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought
and tried separately. The terms of the present offense and each
enhancement shall run consecutively.” (Ibid., italics added.)
As our Supreme Court stated in Williams, supra, 34
Cal.4th at pages 401 and 403, in reference to a defendant’s
aggregate sentence of 35 years to life, comprised of an
indeterminate term of 25 years to life pursuant to section 667,
subdivision (e)(2)(A)(ii), plus a consecutive determinate term of
10 years for two prior serious felony conviction enhancements
under section 667, subdivision (a)(1): “In third strike cases, the
Three Strikes law uses enhancements in two distinct ways: to
calculate the minimum term of the indeterminate life sentence
[under section 667, subdivision (e)(2)(A)(iii)] and to add an
additional, determinate term to be served before the indeterminate
life sentence.” (Williams, at p. 403, italics added.) The Court
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explained that in the latter scenario, applicable here, the
“determinate term must be consecutive to the minimum term of
the indeterminate life sentence, and it is imposed whether or not
the minimum term was established under option” (i), (ii), or (iii)
of section 667, subdivision (e)(2)(A). (Ibid.) In other words, the
Supreme Court made clear that a court may impose a section
667, subdivision (a)(1) enhancement on an indeterminate
sentence of 25 years to life imposed pursuant to section 667,
subdivision (e)(2)(A)(ii). Harmon’s challenge to his sentence fails.
B. Correction of Clerical Errors
An abstract of judgment or minute order “is not the
judgment of conviction; it does not control if different from the
trial court’s oral judgment and may not add to or modify the
judgment it purports to digest or summarize.” (People v. Mitchell
(2001) 26 Cal.4th 181, 185.) “The trial court is generally required
to include all aspects of a judgment in its oral pronouncement of
judgment. [Citation.] Any discrepancy between the judgment as
orally pronounced and as recorded in the clerk’s minutes or
abstract of judgment is presumed to be the result of clerical
error.” (People v. Leon (2020) 8 Cal.5th 831, 855.) “ ‘[A] court has
the inherent power to correct clerical errors in its records so as to
make these records reflect the true facts.’ ” (People v. Baker
(2021) 10 Cal.5th 1044, 1109.) A trial court may do so at any
time, and an appellate court that has “properly assumed
jurisdiction” of a case may order a trial court to correct clerical
errors in its records. (Mitchell, at p. 185.)
As reflected in the reporter’s transcript of the original
sentencing hearing on December 13, 1994 (and as the parties
confirmed at the November 21, 2025 resentencing hearing), the
court originally sentenced Harmon to 50 years to life in prison,
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comprised of an indeterminate term of 25 years to life for the
robbery pursuant to section 667, subdivision (e)(2)(A) and a
consecutive determinate term of 25 years for five prior serious
felony conviction enhancements (five years for each) under
section 667, subdivision (a)(1). The December 13, 1994 minute
order and judgment and the December 19, 1994 abstract of
judgment, however, erroneously state that the court imposed a
five-year upper term sentence for the robbery (in addition to the
indeterminate term of 25 years to life imposed for the same
robbery), plus four prior serious felony conviction enhancements
(totaling 20 years) instead of five. We direct the trial court to
correct these clerical errors to reflect Harmon’s sentence as orally
pronounced on December 13, 1994.
As reflected in the reporter’s transcript of the resentencing
hearing on November 21, 2025, and as the parties agree, the
court resentenced Harmon to 45 years to life in prison: an
indeterminate third strike term of 25 years to life for the robbery
(§ 667, subd. (e)(2)(A)(ii)), plus a consecutive determinate term of
20 years for four 5-year prior serious felony conviction
enhancements (§ 667, subd. (a)(1)). The March 5, 2026 abstract
of judgment, however, erroneously states that the court imposed
a five-year upper term sentence for the robbery (in addition to the
indeterminate term of 25 years to life imposed for the same
robbery), plus three prior serious felony conviction enhancements
(totaling 15 years) instead of four. We direct the trial court to
correct these clerical errors to reflect Harmon’s sentence as orally
pronounced on November 21, 2025.
DISPOSITION
The judgment is affirmed with directions to the superior
court (1) to correct the December 13, 1994 minute order and
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judgment and the December 19, 1994 abstract of judgment to
reflect that on December 13, 1994, Harmon was sentenced to 25
years to life in prison for the robbery (§ 667, subd. (e)(2)(A)(ii)),
plus a consecutive term of 25 years for five prior serious felony
conviction enhancements (five years each per § 667, subd. (a)(1)),3
and (2) to correct the March 5, 2026 abstract of judgment to
reflect that on November 21, 2025, Harmon was sentenced to 25
years to life for the robbery (§ 667, subd. (e)(2)(A)(ii)), plus a
consecutive term of 20 years for four prior serious felony
conviction enhancements (five years each per § 667, subd. (a)(1)).
The court is to forward a copy of the current amended abstract of
judgment (that amends the March 5, 2026 abstract of judgment)
to the California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J.
3 These December 1994 documents show a three-year
concurrent term for three 1-year prior prison term enhancements
pursuant to section 667.5, subdivision (b). This accurately
reflects the oral pronouncement of judgment on December 13,
1994, and should not be removed when the documents are
corrected.
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