Filed 2/24/14 P. v. Rodriguez CA
                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----
THE PEOPLE,                                                                                  C069866

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF112865A)

         v.

STEVEN REFUGIO RODRIGUEZ,

                   Defendant and Appellant.



         Late one evening officers stopped a vehicle driven by defendant Steven Refugio
Rodriguez, who admitted to drinking and sat next to an open container of malt liquor. A
search of the vehicle unearthed a duffle bag containing drugs, a weapon, and ammunition.
An information charged defendant with possession of a firearm by a convicted felon;
possession of a sawed-off shotgun; possession of ammunition by a convicted felon;
transportation of methamphetamine; and possession of a controlled substance while in
possession of a loaded, operable firearm. (Former Pen. Code, §§ 12021, subd. (a)(1),
12020, subd. (a)(1), 12316, subd. (b)(1); Health & Saf. Code, §§ 11379, 11370.1,
subd. (a).)1



1   All further statutory references are to the Penal Code unless otherwise specified.

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       A jury found defendant guilty on all counts, and the court sentenced him to
11 years four months in state prison. Defendant appeals, contending the court erred in
denying his motion to suppress, abused its discretion in denying his motion for disclosure
of peace officer personnel records, and committed sentencing error. We shall stay
defendant’s sentence on count 5 pursuant to section 654; in all other respects we shall
affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Two officers, James Nance and Kyle Pierce, stopped a vehicle driven by
defendant. Inside the vehicle officers found a duffle bag containing a loaded sawed-off
shotgun, ammunition, methamphetamine, and a glass pipe. An information charged
defendant with possession of a firearm by a convicted felon (count 1), possession of a
sawed-off shotgun (count 2), possession of ammunition by a convicted felon (count 3),
transportation of methamphetamine (count 4), and possession of a controlled substance
while in possession of a loaded, operable firearm (count 5). The information also alleged
defendant had previously been convicted of two serious felonies within the meaning of
sections 667, subdivision (d) and 1170.12, subdivision (b).
       A jury trial followed. Defendant represented himself at trial, and the following
evidence was introduced.
       Late one evening in September 2009 Officers Nance and Pierce noticed a white
Monte Carlo stopped on the roadway. As the officers pulled in behind the Monte Carlo,
it turned in to a gas station. Officer Nance activated the patrol car’s overhead lights as
soon as they got behind the Monte Carlo.
       Officer Nance saw defendant, the driver, lean forward and then sit back up as the
Monte Carlo stopped. Officer Pierce saw defendant “reach with his right shoulder lower,
like he was trying to reach for something or push something under the seat.”
       The officers asked defendant to put his hands out the window, defendant
complied, and the officers then approached the Monte Carlo. According to Officer

                                              2
Nance, defendant’s eyes were red and watery, and he smelled of alcohol. When Nance
looked into the car, he saw an open container of malt liquor in a brown paper bag next to
the center console on the passenger-side floorboard. Nance asked defendant if he had
been drinking, and defendant said he had a beer or a beer and a half earlier.
       At this point, California Highway Patrol (CHP) Officer John Pabst drove up.
Pabst had defendant perform field sobriety tests. Officer Nance used the mobile
computer in the patrol car to run the Monte Carlo’s license plate. The license plate
belonged to a 2000 Plymouth whose registration had expired. Defendant was the
registered owner of the Plymouth. Nance also ran the Monte Carlo’s VIN (vehicle
identification number). The Monte Carlo’s registration had expired in June 2006.
       Officer Nance asked defendant for his driver’s license, vehicle registration, and
proof of insurance. Although defendant had a valid driver’s license, he did not have
registration or insurance for the Monte Carlo.
       Officers Timothy Swails and Thomas Heslin assisted Officers Nance and Pierce
with the traffic stop. They arrived shortly after Nance and Pierce. Defendant was
already outside the car. Swails saw seven other people in the car, both adults and
children.
       Officer Swails searched the interior of the Monte Carlo and found a black duffle
bag on the floor between the driver’s and passenger’s seats. Inside the bag, Swails found
a sawed off, .12 gauge, double-barrel shotgun. The officer took two live shells out of the
gun.
       The duffle bag also contained a toiletry bag, inside of which were more shotgun
shells and a “piece of clear plastic wrapping that was twisted at the top that contained
several piece[s] of an off-white crystal substance that [he] recognized to be
methamphetamine.” Officer Swails also found a “glass drug pipe” that had stains
consistent with its having been used to smoke methamphetamine.



                                             3
       Officer Pierce collected and booked the items Officer Swails unearthed in the
Monte Carlo. According to Pierce there were 21 shotgun shells in the toiletry bag; when
added to the two shells from the shotgun, there were 23 shells. The shotgun barrel
measured 13-3/4 inches, for an overall length of 21 inches. An analysis of the substance
in the clear plastic wrap revealed it contained 0.3 gram of methamphetamine.
       Police Sergeant Richard Ridenour, on patrol that night, heard via the radio that
several officers were involved in a traffic stop. After Ridenour arrived at the scene he
went to speak with Officer Pierce. As the pair spoke, Ridenour heard someone call his
name. Ridenour went to the pulled-over vehicle and saw defendant sitting inside it.
       Defendant told Sergeant Ridenour his name and asked if the sergeant remembered
him. Ridenour replied, “ ‘No, I don’t really remember you.’ ” Defendant responded:
“ ‘Well, remember from [the] FBI task force.’ ” Ridenour recalled having arrested
defendant “at some point.” Fellow officers told Ridenour defendant was stopped because
the registration on his car was expired and he had an open alcoholic beverage container in
his car.
Defense
       Rosie Rangel
       Rosie Rangel was a passenger in defendant’s car the night of the traffic stop.
Rangel testified defendant picked her up in a white Monte Carlo. They drove to an
apartment building, where they picked up Darlene Orozco and her children.
       After defendant picked up Orozco and her children, officers pulled him over. He
pulled off the road into a gas station. Rangel testified several patrol cars “were all around
us.” According to Rangel, eight to 10 officers responded.
       After defendant got out of the Monte Carlo, an officer asked Rangel if there was
anything illegal in the car. She replied, “ ‘My beer.’ ” When the officer asked why this
was illegal, Rangel stated, “ ‘It’s open.’ ” According to Rangel, the officer then said,
“ ‘I’m not gonna go there with you. It’s his beer.’ ” Rangel testified there were two

                                              4
beers in the car. Rangel sat in the front passenger seat. An officer asked Rangel to get
out of the car. After she got out of the car, officers handcuffed her.
       Rangel denied seeing the black duffle bag in the Monte Carlo the night of the
traffic stop. She testified: “I’m positive. I was sitting right in front.” However, Rangel
did see Orozco’s pink diaper bag in the back seat.
       Darlene Orozco
       Darlene Orozco testified that the night of the traffic stop she called defendant and
asked for a ride. He picked her up, and after they drove some distance, officers pulled
over the car. According to Orozco, there were “a lot” of officers at the stop.
       As soon as defendant stopped the car, three officers surrounded it and ordered the
occupants out. Orozco sat in the back seat with her five children. She also had a diaper
bag with her in the back seat; she left it there when she got out of the car. As she exited
the car, officers handcuffed her. Two to four officers searched defendant’s car: “It
looked like a lot of them were just on top of it.” Orozco remained handcuffed for about
20 minutes. She did not know there was a gun or drugs in the car.
       Officer Heslin
       Officer Heslin participated in the traffic stop, arriving with his partner, Officer
Swails, a few minutes after the stop occurred. The traffic stop was conducted by
Stockton Police and a CHP unit. An officer took defendant to a patrol car; defendant was
not handcuffed. After the car was empty, Heslin went to the passenger side. As he
looked into the front passenger seat, Officer Swails “said there was a gun in the car.”
       Officer Pabst
       CHP Officer Pabst and his partner also responded to the traffic stop. Pabst
conducted a field sobriety test on defendant. He testified defendant had been drinking
but was not under the influence of alcohol.




                                              5
       Pabst impounded defendant’s car “due to the registration being expired and also
[he] had been arrested.” During the course of inventorying the car’s contents, Pabst
found in the trunk the license plates that belonged on the Monte Carlo.
       Evidence Technicians
       A field evidence technician arrived on the scene of the stop that evening. She took
numerous photographs of the items found in the car. Most of the items she photographed
were on the trunk of the car.
       Another evidence technician processed the shotgun for fingerprints. She did not
find any prints. The technician testified that, in her experience, latent prints are
obtainable about 10 percent of the time.
       Nancy Rodriguez
       Nancy Rodriguez works with ex-offenders in the San Joaquin County Worknet
program. Nancy knew defendant for about three years. She and defendant bought the
Monte Carlo together in 2009 from a “tow yard.” Sometime after the traffic stop, Nancy
went to the impound yard to recover the Monte Carlo. After presenting documentation,
Nancy retrieved the car and found the glove box was open and the registration and proof
of insurance were strewn about.
       Stephanie Rodriguez
       Defendant’s sister, Stephanie Rodriguez, testified that she spoke with Rangel after
defendant’s arrest. Rangel said she claimed to be the owner of the shotgun the night of
the traffic stop. Later Stephanie tried to get Rangel to come to court to testify she owned
the shotgun, but she could not locate Rangel.
       After Rangel’s trial testimony, Stephanie asked her why she had not admitted
owning the shotgun. Rangel told Stephanie, “ ‘I got scared. I been clean for 15 months,
and I have a baby now, and I have to get my life in order.’ ” Stephanie told Rangel that
defendant’s life was at stake, but Rangel had nothing else to say. Rangel also told
Stephanie that the black duffle bag with the shotgun belonged to her boyfriend.

                                              6
       According to Stephanie, she and defendant were staying at a motel on the day of
the traffic stop. The only things defendant put into the Monte Carlo that day were
Stephanie’s belongings, since she was moving from the motel into a house.
Verdict and Sentencing
       The jury found defendant guilty on all counts. In addition, the jury found the prior
conviction allegations true. The trial court granted defendant’s request for appointment
of counsel. Defense counsel filed a request to have one or more strikes dismissed. The
court granted the request and dismissed one of the prior strikes.
       The trial court ultimately sentenced defendant to 11 years four months in prison:
the upper term of six years (three years, doubled, pursuant to section 667,
subdivision (e)(1)) on count 1; plus 16 months (one-third of the middle term pursuant to
section 1170.1, subdivision (a), doubled pursuant to section 667, subdivision (e)(1)) on
count 3; plus two years (one-third of the middle term pursuant to section 1170.1,
subdivision (a), doubled pursuant to section 667, subdivision (e)(1)), to be served
consecutively, on count 4; plus two years (one-third of the middle term pursuant to
section 1170.1, subdivision (a), doubled pursuant to section 667, subdivision (e)(1)), to
be served consecutively, on count 5. The court ordered defendant to serve the middle
term of four years (two years, doubled, pursuant to section 667, subdivision (e)(1)) on
count 2 but stayed the sentence under section 654. The court also imposed fines and fees.
Defendant filed a timely notice of appeal.
                                      DISCUSSION
                                   Motion to Suppress
       Defendant contends the trial court erred in denying his motion to suppress.
Defendant argues: “The traffic stop in the instant case was not based on reasonable and
articulated suspicions.”
Background
       Defendant moved to suppress evidence. The court held a hearing on the motion.

                                             7
       Officer Pierce testified he and Officer Nance were part of a special operation with
the CHP, patrolling different high-crime areas. As they drove down Clover Street, Pierce
saw a “white vehicle traveling eastbound in the number two lane of Bianchi [Road]; and
there [were] two cars behind it. And the white vehicle was just stopped.”
       Officer Pierce testified he “looked to [his] left and didn’t see any other cars in
front of it,” and he “found it kind of odd that it stopped in the roadway for no apparent
reason.” As Pierce sat stopped at a stop sign, the other car “started moving slowly, and it
turned into the west side of the Chevron parking lot.”
       The officers pulled over the car; Officer Pierce approached the passenger side and
Officer Nance approached the driver’s side. Nance told Pierce he had seen “an open
bottle of beer between the driver and the passenger, like on the floorboard in the front
seat.” Nance also told Pierce that the driver had red, watery eyes. Officers later
determined that the license plates on the vehicle belonged on a 2000 Plymouth Breeze
registered to defendant.
       Officer Swails testified that on the evening of the traffic stop he went to the
Chevron station to assist Officers Nance and Pierce “with a traffic stop they had made in
the parking lot.” Nance directed Swails to search the white Monte Carlo that had been
stopped. Swails stated Nance had said that “he found open containers in the vehicle.”
       Officer Swails’ search unearthed the sawed-off shotgun, loaded with two live
shells. He found the shotgun inside a black duffle bag in front of the bench seat on the
front floorboard of the car. Inside the duffle bag was a toiletry bag, inside of which
Swails found “a glass drug smoking pipe and a piece of clear plastic that contained
several pieces of off-white crystal-like substance.” Swails gave his finds to Officers
Pierce and Nance.
       Officer Swails interviewed Orozco at the scene. He asked her about the gun in the
vehicle. Orozco told Swails that she did not know the gun and drugs were in the car.



                                              8
       The trial court denied the motion to suppress. Defendant later moved to set aside
the information. He argued the officers seized the evidence in violation of his Fourth
Amendment rights. The court denied the motion.
Discussion
       The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. A detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific facts that, when considered
in light of the totality of the circumstances, provide some objective manifestation that the
person detained may be involved in criminal activity. Traffic stops are investigatory
detentions for which the officer must be able to provide specific facts justifying the
suspicion that a law is being violated. (People v. Dotson (2009) 179 Cal.App.4th 1045,
1049 (Dotson); People v. Rogers (2009) 46 Cal.4th 1136, 1156.)
       An officer may stop and detain a motorist on reasonable suspicion that the driver
has violated the law. The guiding principle in determining the propriety of an
investigatory detention is the reasonableness in all the circumstances of the particular
governmental invasion of an individual’s person or property. Reasonable suspicion is a
less stringent standard than probable cause and can be based on less reliable information
than that required for probable cause. However, to be reasonable, an officer’s suspicion
must be supported by some specific, articulable facts that are reasonably consistent with
criminal activity. (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
       On appeal, when considering a trial court’s ruling on a motion to suppress, we
defer to the court’s express or implied factual findings where they are supported by
substantial evidence. However, we exercise our independent judgment in determining
whether the search or seizure was reasonable under the Fourth Amendment. (Dotson,
supra, 179 Cal.App.4th at p. 1049.) We are limited to the facts presented at the
suppression hearing. (People v. McKim (1989) 214 Cal.App.3d 766, 768, fn. 1.)



                                             9
       Here, defendant argues the traffic stop was not based on reasonable or articulated
suspicions: “Officers Pierce and Nance had no prior information about any purported
criminal activity in the area. The officers were not actively searching for a suspect
vehicle or a person involved in a crime. The officers stopped [defendant] merely because
they thought it was odd that he was stopped without an apparent reason.”
       In support, defendant cites People v. Perrusquia (2007) 150 Cal.App.4th 228
(Perrusquia). In Perrusquia, police officers were briefed by detectives about a series of
armed robberies of 7-Eleven stores in the area. The detectives provided a description of
the suspect and requested the officers do patrol checks and keep 7-Eleven stores under
observation because of the frequent robberies. Officer Tisdale, based on his experience,
knew the area around one of the 7-Eleven stores was a high-crime area. The officer had
contacts in the area relating to assault with a deadly weapon and drug complaints.
Tisdale also knew that numerous gangs had ties to the area. (Id. at pp. 230-231.)
       Tisdale entered the 7-Eleven parking lot and noticed the defendant’s car. The car
was occupied and parked, with the engine running, next to an exit and facing the street.
This caught the officer’s attention because there were other spots available closer to the
7-Eleven’s entrance. Tisdale stood behind the car, watching the defendant, who was
crouched low in the driver’s seat and leaning against the glass. The officer found this
suspicious. After about 45 seconds another officer arrived on scene and the two
continued to observe the defendant. The two officers began to approach and as they
reached the rear of the car, Tisdale heard “ ‘kind of like a fumbling.’ ” He then heard
something drop to the floor of the car with a thud. (Perrusquia, supra, 150 Cal.App.4th
at p. 231.)
       The defendant glanced at the officer in the car’s mirror and turned off the engine.
The defendant got out of the car and “ ‘aggressively, quickly’ ” tried to pass Tisdale. The
defendant wore baggy jeans and an untucked, long-sleeved baggy shirt. The defendant
told Tisdale he was going to the store. When Tisdale asked for identification, the

                                             10
defendant appeared agitated but retrieved it from the car. The defendant said he had no
weapons and refused a quick pat-down search for weapons. The defendant began to walk
away, toward the adjacent street. The officers detained him and found two loaded
weapons and drugs. (Perrusquia, supra, 150 Cal.App.4th at pp. 231-232.)
       The appellate court affirmed the trial court’s order granting the defendant’s motion
to suppress evidence. The court reasoned: “The officer in this case had a hunch that
something was amiss with defendant, and he turned out to be right. That he was right,
however, cannot be used to retroactively justify a detention. As the trial court noted at
the hearing’s conclusion: ‘[T]his is why police work is difficult, complex and
challenging[,] because it’s difficult from a moral or practical standpoint to criticize the
officer’s actions.’ We agree, yet at the same time we also agree with the trial court that
the facts did not meet the legal standard for a detention. The officer must have ‘specific
and articulable facts causing him to suspect that (1) some activity relating to crime has
taken place or is occurring or about to occur, and (2) the person he intends to stop or
detain is involved in that activity. [Citation.].” (Perrusquia, supra, 150 Cal.App.4th at
p. 234.)
       Defendant argues the circumstances surrounding his traffic stop were even less
persuasive than those found insufficient in Perrusquia. According to defendant, there
was no prior information about specific crimes, defendant’s vehicle was not poised to
effect a hurried departure, defendant did not make any furtive movements or resist
contact with the officers, and defendant did not attempt to flee or appear nervous. When
defendant was detained he was no longer in a traffic lane but inside the parking lot of the
gas station. Defendant contends: “The only reason for stopping [defendant], other than
the fact it occurred in a high crime area, was that the officers found it ‘odd’ that
[defendant] was stopped for no apparent reason.”
       In addition, defendant argues there was insufficient evidence that he impeded the
flow of traffic in violation of Vehicle Code section 22400, subdivision (a) so as to justify

                                              11
the traffic stop. Section 22400, subdivision (a) states, in part: “No person shall bring a
vehicle to a complete stop upon a highway so as to impede or block the normal and
reasonable movement of traffic unless the stop is necessary for safe operation or in
compliance with law.”
        Contrary to defendant’s assertion, Officer Pierce testified defendant’s Monte Carlo
stopped in the middle of the roadway with two cars behind it and none in front.
Defendant’s vehicle was at a complete stop in the road, impeding the flow of traffic as
evidenced by the two cars stopped behind the Monte Carlo. Unlike the vehicle in
Perrusquia, which was parked outside a 7-Eleven store, defendant’s car was inexplicably
stopped on a roadway, leading to the reasonable suspicion that defendant was committing
a traffic infraction by blocking traffic. Under the totality of the circumstances considered
by the trial court, Officers Nance and Pierce reasonably suspected defendant had
committed or was about to commit a crime. Therefore the court did not err in denying
defendant’s motion to suppress.
              Motion for Disclosure of Peace Officer’s Personnel Records
        Defendant filed a motion prior to trial seeking discovery of the personnel files of
Sergeant Ridenour, including all complaints regarding police misconduct under
Pitchess v. Superior Court (1974) 11 Cal.3d 531. Defendant argues the court abused its
discretion by denying his motion.
Background
        In his motion, defendant stated that in a previous case in 2001, Sergeant Ridenour
lied in court, falsified his report, and violated defendant’s Miranda rights.2 In an
amended declaration, defendant alleged police reports by Officers Pierce, Nance, and
Swails and technician Andre Chelli “fabricated, or mischaracterized the statements




2   Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

                                             12
regarding reasonable suspicion and probable cause to search [his] vehicle.” He argued
the information sought was relevant to his defense because the officers’ propensities for
dishonesty, discriminatory practices, and unlawful arrests were indicative of their
dishonesty in the present case. The court denied the motion.
Discussion
       A defendant is entitled to discovery from an officer’s confidential personnel
records if those files contain information potentially relevant to the defense. In order to
obtain those records, the defendant must file a motion demonstrating good cause for the
discovery. If the motion is granted, the court reviews the records in camera, with a
subsequent disclosure to the defendant of information relevant to the subject matter in the
pending litigation. (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1048.)
We review the trial court’s decision for an abuse of discretion. (Alford v. Superior Court
(2003) 29 Cal.4th 1033, 1039.)
       There is a relatively low threshold for establishing the good cause triggering an in
camera review by the court. Defendant must present a specific factual scenario of officer
misconduct that is plausible when read in light of the pertinent documents. (Warrick v.
Superior Court (2005) 35 Cal.4th 1011, 1019.) Defendant argues he demonstrated good
cause and the trial court should have conducted an in camera review to determine what
information should be disclosed.
       In his motion, defendant sought the personnel records of Sergeant Ridenour,
alleging that in a previous case against him, in 2001, Ridenour lied in court, falsified
police reports, and violated defendant’s Miranda rights. In an amended declaration in
support of the motion defendant alleged that the police reports authored by Officers
Pierce, Nance, and Swails and techinician Chelli “fabricated, or mischaracterized the
statements regarding reasonable suspicion and probable cause to search [his] vehicle.”
Defendant also requested the records of these personnel.



                                             13
       However, nothing in defendant’s motion connects his encounter with Ridenour
years earlier with the traffic stop at issue in the present case. Ridenour arrived on the
scene at least several minutes after the traffic stop took place. Defendant provides no
specific factual scenario of officer misconduct involving Officers Nance, Pierce, or
Swails or technician Chelli. Instead, defendant alleges that the officers and Chelli
planted the gun and drugs in his car and ignored Orozco’s statements that the gun and
drugs belonged to her. Defendant has not established good cause for the production of
the officers’ personnel files, and the court did not err in denying the motion.
                                     Sentencing Error
       Finally, defendant contends the sentence imposed on count 5 should have been
stayed pursuant to section 654. The People agree the court improperly sentenced
defendant on count 5 and argue the case should be remanded and defendant resentenced.
       Defendant points out that the trial court imposed a doubled two-year sentence in
count 2 and stayed that sentence pursuant to section 654. However, the court sentenced
defendant to a consecutive term in count 5. The sentence on count 5, defendant argues,
violates section 654, which proscribes double punishment for multiple violations of the
Penal Code based on the same act or omission.
       According to defendant: “[Defendant’s] conduct in counts 1 and 2 (which the trial
court here found to be subject to Penal Code section 654) is the same ‘single physical act’
that resulted in his conviction in count 5, possessing a controlled substance while in
possession of a weapon. Under the facts of the case, [defendant] could not be convicted
of violating Health and Safety Code section 11370.1, subdivision (a) if he did not also
violate [former] Penal Code section 12020, subdivision (a)(1) because the same act of
possessing the same gun was necessary for both counts.” Since there was no evidence
that defendant possessed the shotgun in question in counts 1 and 2 with an intent different
from his possessing it in count 5, the trial court erred in sentencing him on count 5.



                                             14
       The People agree the court’s sentence on count 5 ran afoul of section 654 and
should be corrected. Accordingly, we shall order defendant’s sentence on count 5 to be
stayed pursuant to section 654.
       In addition, the People contend the trial court erred in imposing sentence on
count 5: “The court then purported to impose a consecutive, subordinate term of sixteen
months in prison on Count 5 (possession of a controlled substance while in possession of
a loaded, operable firearm [Health & Saf. Code, § 11370.1, subd. (a)]). [Citation.]
But . . . the middle term for a violation of Health and Safety Code section 11370.1,
subdivision (a) is three years — not two years. Thus, one-third of the middle term
doubled should have been two years in prison — not sixteen months. The trial court’s
sentence on Count 5 was unauthorized and therefore should be corrected on remand.”
       As defendant points out, the abstract of judgment states defendant was sentenced
under section 11370.1, subdivision (a) to a doubled one-third the middle term, or two
years. The People rely on the clerk’s minutes, which show the court sentenced defendant
in count 5 to one-third the midterm of 16 months. The reporter’s transcript also shows a
sentence of 16 months on count 5. However, in a later minute order, an out-of-court
entry by the court clerk shows a correct two-year sentence for both counts 4 and 5.
Therefore, remand on count 5 is not required.
                                     DISPOSITION
       Defendant’s sentence in count 5 is stayed. In all other respects, the judgment is
affirmed.

                                                           RAYE              , P. J.
We concur:


            BUTZ            , J.


            HOCH            , J.


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