Automated Summary
Key Facts
Appellant Dashaun Donte Hunter was convicted of second degree murder with firearm use allegations found true under Penal Code sections 12022.5 and 12022.53. The trial court sentenced him to 15 years to life for murder plus a 10-year enhancement under section 12022.5(a), but mistakenly stayed rather than struck the 25 years to life enhancement under section 12022.53(d), which was unauthorized under section 12022.53(j). The appellate court modified the judgment to strike the 12022.53(d) enhancement and ordered an amended abstract of judgment to correctly reflect the 10-year determinate term imposed under section 12022.5(a).
Issues
- The court identified a clerical error where the abstract of judgment incorrectly reflected an indeterminate 10 years to life term for the section 12022.5 firearm enhancement, when the oral pronouncement was a 10-year determinate term. The court ordered the abstract of judgment to be amended to reflect the correct term.
- The court addressed whether the trial court had authority under section 12022.53, subdivision (j) to stay the 25-year-to-life punishment for the firearm enhancement rather than striking it. The court found this represented an unauthorized sentence and modified the judgment to strike the enhancement.
Holdings
- The abstract of judgment contained a clerical error reflecting an indeterminate term of 10 years to life for the firearm enhancement under section 12022.5, subdivision (a), when the trial court had actually imposed a determinate 10-year term. The court corrected this clerical error and ordered the trial court to issue an amended abstract of judgment correctly reflecting the 10-year determinate term imposed for the firearm enhancement under section 12022.5, subdivision (a).
- The court modified the judgment to strike the section 12022.53, subdivision (d), firearm enhancement because the trial court was not authorized to stay this sentence rather than strike it. The trial court had mistakenly believed it could stay execution of the punishment for the enhancement, but under section 12022.53, subdivision (j), when enhancement allegations under sections 12022.53, subdivision (d), and 12022.5, subdivision (a), have been pleaded and found true, if the trial court determines it is appropriate to impose punishment under section 12022.5, subdivision (a), rather than impose punishment under section 12022.53, subdivision (d), the trial court must first strike the section 12022.53, subdivision (d), enhancement under section 1385. The judgment is otherwise affirmed.
Remedies
- The trial court shall forward a copy of the amended abstract of judgment to the appropriate authorities.
- In all other respects, the judgment is affirmed.
- The judgment is modified by striking the section 12022.53, subdivision (d), firearm enhancement. The trial court shall issue an amended abstract of judgment reflecting the modification to the judgment, and to correctly reflect the 10-year determinate term imposed for the firearm enhancement under section 12022.5, subdivision (a).
Legal Principles
Section 12022.53, subdivision (j) requires courts to impose punishment for firearm enhancements admitted or found true rather than under other laws, unless another enhancement provides for a greater penalty. Section 12022.53, subdivision (f) prohibits imposing a section 12022.5 firearm enhancement in addition to a section 12022.53(d) enhancement for the same crime. When both enhancements are found true and the court elects to impose punishment under section 12022.5(a) rather than section 12022.53(d), the court must first strike the section 12022.53(d) enhancement under section 1385. Appellate courts have inherent power to correct clerical errors in abstracts of judgment that do not reflect the oral pronouncement of judgment.
Precedent Name
- People v. Mitchell
- People v. Bay
- People v. Jones
- People v. Tirado
- People v. Gonzalez
- People v. McDavid
- People v. Vizcarra
- People v. Lopez
Cited Statute
- Second degree murder
- Firearm use in commission of felony
- Firearm enhancement sentencing requirements
- Striking enhancement
- Premeditated and deliberate murder
- Firearm causing death or great bodily injury
Judge Name
- Acting Presiding Justice Levy
- Justice Meehan
- Justice Snauffer
Passage Text
- The trial court had no discretion to stay the enhancement under California Rules of Court, rule 4.447. When enhancement allegations under sections 12022.53, subdivision (d), and 12022.5, subdivision (a), have been pleaded and found true, if the trial court determines it is appropriate to impose punishment under section 12022.5, subdivision (a), rather than impose punishment under section 12022.53, subdivision (d), the trial court must first strike the section 12022.53, subdivision (d), enhancement under section 1385.
- The parties contend, and we agree, that the abstract of judgment does not reflect the oral pronouncement of judgment with respect to the firearm enhancement under section 12022.5, subdivision (a). The trial court imposed the upper term of 10 years determinate under section 12022.5, subdivision (a), but the abstract of judgment reflects a punishment of 10 years to life under section 12022.5, subdivision (a).
- The judgment is modified by striking the section 12022.53, subdivision (d), firearm enhancement. In all other respects, the judgment is affirmed. The trial court shall issue an amended abstract of judgment reflecting the modification to the judgment, and to correctly reflect the 10-year determinate term imposed for the firearm enhancement under section 12022.5, subdivision (a).