Filed 8/19/20 P. v. Wright CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                           2d Crim. No. B303503
                                                                    (Super. Ct. No. GA082955)
     Plaintiff and Respondent,                                        (Los Angeles County)

v.

STEVEN LAWRENCE
WRIGHT,

     Defendant and Appellant.


       This is appellant’s second appeal in this matter. Steven
Lawrence Wright appeals from the judgment entered after we
had remanded the matter to the trial court with directions to
exercise its discretion whether to strike sentencing
enhancements. Appellant does not claim that, on remand, the
trial court abused its discretion. He claims that the court’s
minute order and abstract of judgment do not correctly reflect its
oral pronouncement of judgment on remand.
       “In a criminal case, it is the oral pronouncement of
sentence that constitutes the judgment.” (People v. Scott (2012)
203 Cal.App.4th 1303, 1324.) “Where there is a discrepancy
between the oral pronouncement of judgment and the minute
order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
We direct the trial court to correct the minute order and abstract
of judgment so that they conform to the oral pronouncement of
judgment. In all other respects, we affirm.
                          Procedural History
       On count 1 appellant was convicted of first degree murder.
On count 2 he was convicted of attempted first degree murder.
As to each count, the jury found true allegations (1) that a
principal had intentionally discharged a firearm causing death or
great bodily injury within the meaning of Penal Code section
12022.53, subdivisions (d) and (e)(1),1 and (2) that the offense had
been committed for the benefit of a criminal street gang within
the meaning of section 186.22, subdivision (b)(1)(C). The trial
court found true allegations that appellant had been convicted of
a prior serious felony within the meaning of section 667,
subdivision (a)(1), and a prior serious or violent felony within the
meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d).) He was sentenced to prison for an
aggregate term of 130 years to life plus a consecutive five-year
term for the prior serious felony conviction.
       Appellant appealed from the judgment. In an unpublished
opinion, we remanded the matter to the trial court with
directions to exercise its discretion whether to strike in
furtherance of justice (§ 1385) the section 12022.53 firearm

      1Unless otherwise stated, all statutory references are to
the Penal Code.




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enhancements and the five-year enhancement for the prior
serious felony conviction (§ 667, subd. (a)(1)). In all other
respects, we affirmed the judgment. (People v. Wright (Dec. 19,
2018, B281115) pp. 16-17.)
       As to count 2 (attempted first degree murder), on remand
the trial court reduced the section 12022.53, subdivisions (d) and
(e)(1) firearm enhancement to a section 12022.53, subdivisions (c)
and (e)(1) enhancement. Because of this reduction, the
consecutive term imposed for the enhancement was shortened
from 25 years to life to a straight 20 years. The trial court
declined to strike the firearm enhancement on count 1 or the
prior serious felony conviction.
       Accordingly, on remand the new sentence was as follows:
count 1 – 25 years to life for first degree murder, doubled to 50
years to life because of the strike, plus a consecutive term of 25
years to life for the section 12022.53, subdivisions (d) and (e)(1)
firearm enhancement, for a total of 75 years to life; count 2 – a
consecutive term of 15 years to life for attempted first degree
murder, doubled to 30 years to life because of the strike, plus a
consecutive term of 20 years for the section 12022.53,
subdivisions (c) and (e)(1) firearm enhancement, plus a
consecutive term of 5 years for the prior serious felony. The
aggregate term on both counts was 105 years to life plus a
consecutive term of 25 years. The court ordered, “[A]ny
additional fines or fees that have not already been paid will be
stayed.”
                             Minute Order
       The trial court’s minute order correctly shows that
appellant was sentenced to a total of 75 years to life on count 1.
As to count 2, it also correctly shows that appellant was




                                 3
sentenced to a term of 30 years to life for attempted first degree
murder. But it erroneously says that on count 2 the court
imposed a consecutive term of 25 years to life for the section
12022.53, subdivisions (d) and (e)(1) firearm enhancement. It
should have said that the court imposed a consecutive term of 20
years pursuant to section 12022.53, subdivisions (c) and (e)(1). It
also erroneously says that “count 01 shall run consecutive to
count 02.” The court ordered that count 2 shall run consecutively
to count 1. Finally, the minute order says that, as to count 2, the
court struck the section 667, subdivision (a)(1) prior serious
felony conviction enhancement. The court declined to strike this
enhancement. It imposed a consecutive five-year term for the
prior serious felony.
                        Abstract of Judgment
       The abstract of judgment is also erroneous. It shows that
on count 1 the trial court imposed a 50-year term for the firearm
enhancement pursuant to section 12022.53, subdivisions (d) and
(e)(1). The court imposed an enhancement of 25 years to life. It
also shows that the court imposed a sentence of 25 years to life
for the first degree murder conviction. Because of the prior
strike, the 25-year-to-life sentence was doubled to 50 years to life.
Item 1 on page 1 of the abstract of judgment fails to show that
the sentence on count 2 is consecutive to the sentence on count 1.
Also on page 1, the trial court failed to check the boxes in item 8
to show that appellant was sentenced pursuant to “PC 667(b)-(i)
or PC 1170.12,” i.e., the Three Strikes scheme. Finally, although
the court stayed any fines and fees that had not yet been paid,
item 9 on page 2 of the abstract of judgment shows that appellant




                                  4
is obligated to pay a restitution fine of $300, a court security fee
of $40, and a criminal conviction assessment of $30.2
                             Disposition
       The matter is remanded to the trial court with directions to
correct the minute order as follows: (1) the sentence on count 2
runs consecutively to the sentence on count 1, not the other way
round; (2) on count 2 the court imposed a consecutive term of 20
years pursuant to section 12022.53, subdivisions (c) and (e)(1),
not 25 years to life pursuant to section 12022.53, subdivisions (d)
and (e)(1); (3) on count 2 the court imposed a five-year
consecutive term for the prior serious felony (§ 667, subd. (a)(1);
and (4) the aggregate term on both counts 1 and 2 is 105 years to
life plus a consecutive term of 25 years.

      2  The court said it was staying fines and fees because
appellant “does not have the ability to pay based on his
incarceration.” The court’s minute order shows that the fines and
fees were stayed because of “defendant’s inability to pay per
authority of People v. Duenas (2019) 30 Cal.App.5th 1157.”
(Italics added.) The People do not contest the validity of the trial
court’s order staying fines and fees. They assert, “The abstract of
judgment should be corrected to reflect that these fines and fees
were stayed.”
       The trial court erroneously assumed that appellant’s
incarceration deprived him of the ability to pay fines and fees.
“[G]oing forward we know he will have the ability to earn prison
wages over a sustained period. (See People v. Hennessey (1995)
37 Cal.App.4th 1830, 1837 . . . [ability to pay includes a
defendant’s ability to obtain prison wages].) The idea that he
cannot afford to pay $370 while serving [a life] prison sentence is
unsustainable.” (People v. Johnson (2019) 35 Cal.App.5th 134,
139.) Because neither party has briefed the validity of the court’s
order staying fines and fees, we do not reverse the order. (See
Gov. Code, § 68081.)



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       The trial court is also directed to correct the abstract of
judgment as follows: (1) In item 1 on page 1, the sentence
imposed on count 2 (attempted first degree murder) is
consecutive to the sentence imposed on count 1 (first degree
murder). (2) In item 6 on page 1, for first degree murder in count
1 the trial court imposed a sentence of 50 years to life, not 25
years to life. (3) In item 2 on page 1, on count 1 the trial court
imposed a 25-year-to-life enhancement pursuant to section
12022.53, subdivisions (d) and (e)(1), not a 50-year enhancement.
(4) In item 8 on page 1, the appropriate boxes shall be checked to
show that appellant was sentenced pursuant to “PC 667(b)-(i) or
PC 1170.12.” (4) Item 9 on page 2 shall show that appellant is
not obligated to pay a restitution fine, court security fee, or
criminal conviction assessment.
       In all other respects, the judgment on remand is affirmed.
The trial court shall send a certified copy of the corrected abstract
of judgment to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED.




                                                  YEGAN, J.

We concur:


             GILBERT, P. J.


             PERREN, J.




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                   Michael D. Carter, Judge

             Superior Court County of Los Angeles

                ______________________________

      Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Kristen J. Inberg, Deputy Attorney
General, for Plaintiff and Respondent.
