Filed 6/ 29/15 P. v. Tapp CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.

KE VIN TAPP,
Defendant and Appellant. B252643
(Los Angeles County Super. Ct. No. NA 0 89089)

APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur H. Jean , Jr., Judge. Affirmed as modified. Siri Shetty , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, M argaret E. Maxwell and Stephanie C. Brenan
, Supe rvising Deputy Attorney s General, for Plaintiff and Respondent.

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On September 28 , 2011, a jury convicted Kevin Tapp of assault with a deadly weapon, a car, or by force likely to produce great bodily injury, in violation of Penal
Code section 24 5, subdivision (a)(1), 1 and disobeying a domestic relations court order in
violation of s ection 273.6, s ubdivision (a). After a court trial, the trial court found true allegations of prior conviction s and prison term s , including allegations that Tapp had suffered two prior serious or violent felony convictions. One of those convictions was in 1993, for negligent discharge of a firearm, in violation of section 246.3 ; the other was in 1999, for willful infliction of corporeal injury on his spouse

. Tap p was sentenced to a third strike term of 25 years to life in state prison for the assault conviction, with a concurrent sentence of one year in count y jail for disobeying a domestic relations order

. Tapp appealed, and this court revers ed the trial court’ s true finding that his section
246.3 conviction was for a serious or violent felony, because there was not substantial
evidence that Tapp personally used a gun in the commission of h is neglige nt discharge
offense . We vacated Tapp’s sentence , and remanded for a retrial if the prosecutor elected to retry the allegation, and for resentencing. ( People v. Tapp (Dec. 21, 2012, B236715) [nonpub.opn.].) On remand, no retrial occurred. The trial court resentenced Tapp as a “second
striker” to 17 years in state prison: eight years on the assault conviction (th e four

- year high term, doubled), enhanced by nine years (five years for the serious felony enhancement under section 667, subdivision (a)(1), and four one

- year terms for prior prison term enhancements under section 667.5, subdivision (b) ) ; and a concurrent one

year jail sentence for disobeying the domestic relations order. The court also ordered the abstract of judgment to be revised to state that the conviction was for “assault with a deadly weapon, to wit, a car, or by force likely to produce great bodily injury.” The
amended a bstract of judgment filed June 18, 2013 , stated that Tapp had been convicted of

“ ASSAULT WITH A DEADLY WEAPON .”

1 All further statutory references are to the Penal Code unless otherwise indicated

.3

Tapp filed this appeal from the resentencing after we granted him permission to
file a belated notice. While the appeal was pending and before Tapp filed his opening
brief , the trial court held a hearing on June 9, 2014, and granted Tapp’s motion to correct
his sentence . The court awa rded credits to Tapp
, struck a one

- year prior prison term
enhancement imposed in addition to a five

- year serious fe lony conviction enhancement on his 1999 prior conviction , and ordered , as to the verdict on Tapp’s assault conviction, that the abstract of j udgment “reflect the actual verbi age on the verdict form,” stated in

court as “assault with deadly weapon, to wit, a car, or by force likely to produce great bodily injury.” A second amended abstract of judgment was filed on July 2, 2014
, reflecting a 16

- year sentence and stating t hat the ass a ult conviction was for “ ASSAULT
W/DEADLY WEAPON LIKELY TO PRODUCE GBI .” Tapp’s sole claim in the current appeal is that the second amend ed abstract of judgment should once again be corrected , and respondent concedes that further amendment is required. First, the second amended abstract imposes, rather than one five

year serious felony enhancement under section 667, subdivision (a)(1), five on e

- year terms for that enhancement. The abstract m ust be corrected to delete the five one

- year enhancements and insert one five

- year serious felony enhancement. Second, the language describing Tapp’s assault conviction must be changed to the language ordered by the trial court as reflected in the reporte r’s transcript: “Assault with deadly weapon, to wit, a car, or by force likely to produce great bodily injury.” (See People v. Mitchell (2001) 26 Cal.4th 181, 185. )4 DISPOSITION We direct the trial court to modify the abstract of judgment as follows : Th e five

one

- year enhancements under Penal Code section 667, subdivisio n (a)(1) shall be deleted,
and one five

- year serious felony e nhancement under Penal Code section 667,
subdivision (a)(1) shall be inserted in its place. T he description of Kevin Tapp’s

c onviction under Penal Code section 245, subdivision (a)(1) shall be modified so as to accurately reflect the language ordered by the trial court exactly as in the reporter’s transcript : “Assault with deadly weapon, to wit, a car, or by force likely to produce great bodily injury.” The superior court is directed to prepare an amended abstract of judgment reflecting these modifications and forward a copy to the Department of Corrections and
Rehabilitation. As modified, t he judgment of conviction is affi rmed.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J

. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.