P. v. Garcia
Filed 8/26/08 P. v. Garcia CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. LUIS GARCIA, Defendant and Appellant. | B203788 (Los Angeles County Super. Ct. Nos. NA064923 & NA064252) ORDER MODIFYING OPINION AND DENYING REHEARING PETITION [CHANGE IN JUDGMENT] |
THE COURT:*
It is ordered that the opinion filed herein on August 4, 2008, be modified as follows: on page 3, first paragraph, line 5, delete the text subdivisions (d) and (e)(1) as to counts 1 and 2 and insert the text subdivision (d) as to count 1, and pursuant to section 12022.53, subdivision (c) as to count 2.
On page 4, first paragraph, line 7, following the text fees shall be imposed., begin a new paragraph and add the text: The Attorney General argues that the abstract of judgment should be corrected to more accurately reflect the trial courts imposition of a 20-year consecutive section 12022.53, subdivision (c) enhancement as to count 2 rather than a concurrent term for the enhancement as indicated on the abstract of judgment. We agree. Moreover, section 12022.53, subdivision (c) mandates the imposition of a consecutive term for the 20-year enhancement. The California Supreme Court has held: [T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the courts oral pronouncement of judgment to the extent the two conflict. [Citations.] (People v. Delgado (2008) 43 Cal.4th 1059, 1070; see also 1213, 1213.5, People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Walz (2008) 160 Cal.App.4th 1364, 1367.) California Rules of Court, rule 8.155(c)(1) provides in pertinent part, [O]n its own motion, the reviewing court may order correction . . . of any part of the record. (See also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.)
On page 5, line 6, following the text Rehabilitation, add the text reflecting these modifications and the corrections indicated above.
The petition for rehearing is denied.
TURNER, P. J. ARMSTRONG, J. MOSK, J.
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