Filed 6/29/15 P. v. Tapp CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B252643

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA089089)
         v.

KEVIN TAPP,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Arthur H. Jean, Jr., Judge. Affirmed as modified.
         Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and
Stephanie C. Brenan, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.
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       On September 28, 2011, a jury convicted Kevin Tapp of assault with a deadly
weapon, a car, or by force likely to produce great bodily injury, in violation of Penal
Code section 245, subdivision (a)(1),1 and disobeying a domestic relations court order in
violation of section 273.6, subdivision (a). After a court trial, the trial court found true
allegations of prior convictions and prison terms, including allegations that Tapp had
suffered two prior serious or violent felony convictions. One of those convictions was in
1993, for negligent discharge of a firearm, in violation of section 246.3; the other was in
1999, for willful infliction of corporeal injury on his spouse. Tapp was sentenced to a
third strike term of 25 years to life in state prison for the assault conviction, with a
concurrent sentence of one year in county jail for disobeying a domestic relations order.
       Tapp appealed, and this court reversed the trial court’s true finding that his section
246.3 conviction was for a serious or violent felony, because there was not substantial
evidence that Tapp personally used a gun in the commission of his negligent discharge
offense. We vacated Tapp’s sentence, and remanded for a retrial if the prosecutor elected
to retry the allegation, and for resentencing. (People v. Tapp (Dec. 21, 2012, B236715)
[nonpub.opn.].)
       On remand, no retrial occurred. The trial court resentenced Tapp as a “second
striker” to 17 years in state prison: eight years on the assault conviction (the four-year
high term, doubled), enhanced by nine years (five years for the serious felony
enhancement under section 667, subdivision (a)(1), and four one-year terms for prior
prison term enhancements under section 667.5, subdivision (b)); and a concurrent one-
year jail sentence for disobeying the domestic relations order. The court also ordered the
abstract of judgment to be revised to state that the conviction was for “assault with a
deadly weapon, to wit, a car, or by force likely to produce great bodily injury.” The
amended abstract of judgment filed June 18, 2013, stated that Tapp had been convicted of
“ASSAULT WITH A DEADLY WEAPON.”



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

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       Tapp filed this appeal from the resentencing after we granted him permission to
file a belated notice. While the appeal was pending and before Tapp filed his opening
brief, the trial court held a hearing on June 9, 2014, and granted Tapp’s motion to correct
his sentence. The court awarded credits to Tapp, struck a one-year prior prison term
enhancement imposed in addition to a five-year serious felony conviction enhancement
on his 1999 prior conviction, and ordered, as to the verdict on Tapp’s assault conviction,
that the abstract of judgment “reflect the actual verbiage on the verdict form,” stated in
court as “assault with deadly weapon, to wit, a car, or by force likely to produce great
bodily injury.” A second amended abstract of judgment was filed on July 2, 2014,
reflecting a 16-year sentence and stating that the assault conviction was for “ASSAULT
W/DEADLY WEAPON LIKELY TO PRODUCE GBI.”
       Tapp’s sole claim in the current appeal is that the second amended abstract of
judgment should once again be corrected, and respondent concedes that further
amendment is required. First, the second amended abstract imposes, rather than one five-
year serious felony enhancement under section 667, subdivision (a)(1), five one-year
terms for that enhancement. The abstract must be corrected to delete the five one-year
enhancements and insert one five-year serious felony enhancement. Second, the
language describing Tapp’s assault conviction must be changed to the language ordered
by the trial court as reflected in the reporter’s transcript: “Assault with deadly weapon, to
wit, a car, or by force likely to produce great bodily injury.” (See People v. Mitchell
(2001) 26 Cal.4th 181, 185.)




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                                      DISPOSITION
       We direct the trial court to modify the abstract of judgment as follows: The five
one-year enhancements under Penal Code section 667, subdivision (a)(1) shall be deleted,
and one five-year serious felony enhancement under Penal Code section 667,
subdivision (a)(1) shall be inserted in its place. The description of Kevin Tapp’s
conviction under Penal Code section 245, subdivision (a)(1) shall be modified so as to
accurately reflect the language ordered by the trial court exactly as in the reporter’s
transcript: “Assault with deadly weapon, to wit, a car, or by force likely to produce great
bodily injury.” The superior court is directed to prepare an amended abstract of judgment
reflecting these modifications and forward a copy to the Department of Corrections and
Rehabilitation. As modified, the judgment of conviction is affirmed.
       NOT TO BE PUBLISHED.


                                           JOHNSON, J.


We concur:


              ROTHSCHILD, P. J.


              BENDIX, J.*




       * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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