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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

KEVIN TAPP,

Defendant and Appellant.

 B252643

 (Los Angeles County

 Super. Ct. No. NA089089)

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, Margaret E. Maxwell and 

Stephanie C. Brenan, Supervising Deputy Attorneys General, for Plaintiff and 

Respondent.

——————————
2

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 245, subdivision (a)(1),1 and disobeying a domestic relations court order in 

violation of section 273.6, subdivision (a). After a court trial, the trial court found true 

allegations of prior convictions and prison terms, 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. Tapp 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 county jail for disobeying a domestic relations order.

Tapp appealed, and this court reversed 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 his negligent 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 (the 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 oneyear 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 abstract 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 awarded credits to Tapp, struck a one-year prior prison term 

enhancement imposed in addition to a five-year serious felony conviction enhancement 

on his 1999 prior conviction, and ordered, as to the verdict on Tapp’s assault conviction, 

that the abstract of judgment “reflect the actual verbiage 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 that the assault conviction was for “ASSAULT 

W/DEADLY WEAPON LIKELY TO PRODUCE GBI.”

Tapp’s sole claim in the current appeal is that the second amended 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 fiveyear serious felony enhancement under section 667, subdivision (a)(1), five one-year 

terms for that enhancement. The abstract must 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 reporter’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: The five 

one-year enhancements under Penal Code section 667, subdivision (a)(1) shall be deleted, 

and one five-year serious felony enhancement under Penal Code section 667, 

subdivision (a)(1) shall be inserted in its place. The description of Kevin Tapp’s 

conviction 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, the judgment of conviction is affirmed.

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.