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Filed 2/25/14 P. v. De La Cruz CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 fou nd defendant Alfonso Valeriano D e l a 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 i nstant appeal . H e

conten d s 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. The2

People concede that the abstract of judgment and minute order of s entencing 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 judgmen t 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.)

W e agree with the parties the court erred in imposing c oncurrent 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 de emed to be subjected to the

term of both sentences although they are served simultaneously. ’ [Citations.] ” ( People v. Duff (2010) 50 Cal. 4 th 787
, 7 96 , 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. ” ].) R ather than imposing concurrent sentences, when a court determines that a conviction falls within the meaning of section 654, it is nec essary to impose sentence but to stay the
execution of the duplicative sentence . ( People v. Duff, supra, 50 Cal. 4 th at p. 796.)

II

Correction is Required to Reflect the Date of the Resentencing Hearing The parties also agree that the abstract of judgme nt 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 Co urt ’ 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 15 th , 2011, the defendant had time served and good time/work time credits totaling 657 days as reflected in the initial sent encing. From April 15 th , 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 D epartment 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 t o 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 ;

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

f ollowing 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

consecu tively, 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.