Filed 5/7/14 P. v. Spears CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,
                                                                                           F066551
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12904234)
                   v.

ANTHONY PAUL SPEARS,                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
         Linda Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
       Defendant Anthony Paul Spears pled no contest to carjacking (Pen. Code, § 215,
subd. (a); count 1) and participation in a criminal street gang (Pen. Code, § 186.22,
subd. (a), a misdemeanor; count 2) in exchange for dismissal of a third count and a
stipulated prison sentence of nine years. The trial court sentenced him to the upper term
of nine years on count 1, but failed to pronounce sentence on count 2. A corrected
minute order for the same hearing was produced, and it included a 180-day jail sentence
for count 2. Defendant’s sole claim on appeal is that the case must be remanded for
pronouncement of sentence on count 2.
       The People concede and we agree. “To be effective, a sentence must be
pronounced orally on the record and in defendant’s presence. [Citations.] Any later
attempt to modify the sentence in writing is invalid. [Citation.] The only exception is
where the error sought to be corrected is a clerical one [citation]; pronouncement of
sentence is, however, a judicial act. [Citations.]” (People v. McGahuey (1981) 121
Cal.App.3d 524, 530.)
                                     DISPOSITION
       The sentence is vacated and the matter remanded to the trial court. The trial court
shall orally pronounce sentence on both counts, and the clerk of the superior court shall
amend the minute order and abstract of judgment and forward them to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




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