1

Filed 2/25/14 P. v. De La Cruz CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ALFONSO VALERIANO DE LA CRUZ,

Defendant and Appellant.

C072690

(Super. Ct. No. 09F07147)

A jury found defendant Alfonso Valeriano De la Cruz guilty of six felonies and 

one misdemeanor. In a previous appeal, we reversed defendant’s conviction on one 

felony conviction -- assault with a deadly weapon on a peace officer (count seven) -- and 

remanded the matter to the trial court for resentencing. (People v. De la Cruz (July 27, 

2012, C067947) [nonpub. opn.].)

Following his resentencing on remand, defendant brings the instant appeal. He

contends that the abstract of judgment and minute order of sentencing must be amended 

to conform to the trial court’s oral pronouncement of sentence on resentencing. The 
2

People concede that the abstract of judgment and minute order of sentencing must be 

corrected and we agree that both should be corrected as urged by the parties. 

DISCUSSION

I

Correction is Required to Reflect that Sentences on Counts Three, Five and Six 

were Stayed

At the resentencing hearing, the trial court imposed sentences on counts three 

(assault with a deadly weapon), five (firing from a vehicle), and six (flight from officers) 

but ordered those sentences to be stayed pursuant to Penal Code section 654.1 The 

abstract of judgment fails to reflect the trial court’s order that the sentences for those 

three convictions be stayed. The minute order reflects the trial court’s order that the 

sentences on counts three and five be stayed, but not on count six. 

The parties agree the minute order and abstract of judgment should be corrected to 

reflect the court’s intention to stay the sentences imposed on counts three, five and six 

pursuant to Penal Code section 654.2 A discrepancy between the judgment as orally 

pronounced and as entered in the minutes is presumably the result of clerical error.

(People v. Mesa (1975) 14 Cal.3d 466, 471.) The act of entering the judgment is 

ministerial. If the judgment fails to reflect the court’s pronounced judgment, the record 

can be corrected at any time to reflect the actual oral judgment. (People v. Mitchell 

(2001) 26 Cal.4th 181, 185; People v. Hartsell (1973) 34 Cal. App.3d 8, 13.) 

We agree with the parties the court erred in imposing concurrent sentences on 

counts three, five and six before ordering the sentences stayed. “ ‘It has long been 

established that the imposition of concurrent sentences is precluded by section 654 

 

1 The court correctly noted that this court had reversed defendant’s conviction on 

count seven, and imposed no sentence on that count. 

2 Undesignated statutory references are to the Penal Code.
3

[citations] because [under such a sentence] the defendant is deemed to be subjected to the 

term of both sentences although they are served simultaneously.’ [Citations.]” (People v.

Duff (2010) 50 Cal.4th 787, 796, original italics; People v. Alford (2010) 180 Cal.App.4th 

1463, 1468 [“Imposition of concurrent sentences is not the correct method of 

implementing section 654, because a concurrent sentence is still punishment.”].) Rather 

than imposing concurrent sentences, when a court determines that a conviction falls 

within the meaning of section 654, it is necessary to impose sentence but to stay the 

execution of the duplicative sentence. (People v. Duff, supra, 50 Cal.4th at p. 796.) 

II

Correction is Required to Reflect the Date of the Resentencing Hearing

The parties also agree that the abstract of judgment should be corrected to reflect 

that the hearing on resentencing was conducted on December 7, 2012. It currently 

reflects a hearing date of April 15, 2011, the date of defendant’s original sentencing. 

III

Correction is Required to Reflect the Trial Court’s Calculation of Custody 

Credit

At resentencing, the trial court recalculated defendant’s custody credits as follows: 

“Up to the time of initial sentencing on April 15th, 2011, the defendant had time served 

and good time/work time credits totaling 657 days as reflected in the initial sentencing. 

From April 15th, 2011, to today, he has earned an additional 603 days[’] credit for a total 

credit of 1260 days through today. [¶] From this point forward, credits will be 

determined and awarded by the Department of Corrections.” 

DISPOSITION

The trial court shall prepare an amended minute order of the December 7, 2012, 

resentencing hearing to reflect that the sentence imposed on count six was stayed 

pursuant to section 654, and deleting any reference to the imposition of concurrent or 

consecutive sentences on counts three, five or six. 
4

The trial court shall also prepare an amended abstract of judgment to reflect the 

resentencing hearing at which defendant was sentenced occurred on December 7, 2012; 

to reflect box 13b is checked to note sentence was imposed at the resentencing hearing 

following a decision on appeal; the sentences imposed for defendant’s convictions on 

counts three, five and six were neither ordered to be served concurrently nor 

consecutively, but were ordered stayed pursuant to section 654; and the trial court 

awarded defendant a total of 1260 days’ custody credit through December 7, 2012.

As amended, the judgment is affirmed. The trial court shall transmit a copy of the 

amended abstract of judgment to the Department of Corrections and Rehabilitation.

 NICHOLSON , Acting P. J.

We concur:

 HULL , J.

 HOCH , J.