People v. Massey CA1/5 ( 2022 )


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  • Filed 12/9/22 P. v. Massey CA1/5
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
    been certified for publication or ordered published for purposes of rule 8.1115.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
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,
    Plaintiff and Respondent,
    A163744
    v.
    GERALD MASSEY,                                                         (Contra Costa County
    Super. Ct. No. 51408889)
    Defendant and Appellant.
    In November 2014, pursuant to a negotiated disposition,
    defendant and appellant Gerald Massey (appellant) pleaded
    guilty to gross vehicular manslaughter (Pen. Code, § 191.5, subd.
    (d))1 and driving under the influence (DUI) with two prior
    convictions (Veh. Code, §§ 23153, subd. (a), 23566, subd. (b)).
    Appellant also admitted a great bodily injury (GBI) enhancement
    (§ 12022.7, subd. (a)) associated with the DUI charge. Pursuant
    to the plea bargain, the trial court sentenced appellant to prison
    for a term of 15 years to life on the manslaughter charge. The
    All section references are to the Penal Code unless
    1
    otherwise indicated.
    1
    trial court stayed a seven-year term on the DUI charge and the
    GBI enhancement under section 654.
    In November 2014, two abstracts of judgment were filed,
    one for the determinate sentence and one for the indeterminate
    sentence. The determinate sentence abstract on page one
    properly indicates that the seven-year term on the DUI charge
    and enhancement was stayed under section 654, but on page two
    the abstract erroneously states the stays were under “PC 664.”
    The indeterminate sentence abstract on the first page
    erroneously indicates with an “X” that the 15-years-to-life term is
    a consecutive term.
    In August 2020, appellant filed a petition for resentencing
    under section 1170.91, subdivision (b). The trial court denied the
    petition.
    On appeal, appellant does not contend the trial court erred
    in denying his resentencing petition. On that issue, appellant
    concedes that section 1170.91 does not apply to indeterminate
    sentences. (See People v. Estrada (2020) 
    58 Cal.App.5th 839
    ,
    842–843.) But appellant requests that this court direct the trial
    court to correct the November 2014 abstracts of judgment
    because the court below was under the misimpression that
    appellant had been sentenced to seven years on the DUI charge
    and GBI enhancement, plus a consecutive term of 15 years to life
    on the manslaughter charge. He asks that the abstracts of
    judgment be corrected to make clear that “the only operative
    sentence is the 15 years to life indeterminate sentence.”
    2
    Respondent agrees the 2014 negotiated disposition
    provided that the trial court would impose a 15-years-to-life
    indeterminate sentence and stay the sentence on the DUI charge
    and GBI enhancement, and that the 2014 trial court sentenced
    appellant accordingly. Respondent suggests the following
    corrections to the abstracts of judgment to properly reflect the
    sentence imposed: (1) in the abstract of judgment for the
    determinate term, change two improper references to “PC 664” to
    “PC 654;” and (2) in the abstract of judgment for the
    indeterminate term, remove the “X” mark indicating the sentence
    is “consecutive.”
    Respondent’s suggested changes are appropriate and
    adequate; appellant did not file a reply brief arguing to the
    contrary. This court will direct the trial court to make the
    corrections suggested by respondent.
    DISPOSITION
    The trial court’s order denying appellant’s petition for
    resentencing is affirmed. The matter is remanded and the trial
    court is directed to (1) correct the November 2014 abstract of
    judgment of the determinate sentence by changing the two
    references to “PC 664” on the second page to “PC 654,” and (2)
    correct the November 2014 abstract of judgment of the
    indeterminate sentence by removing the “X” mark on the first
    page indicating that the sentence is “consecutive.”
    3
    SIMONS, J.
    We concur.
    JACKSON, P. J.
    WISEMAN, J.*
    (A163744)
    * Retired Associate Justice of the Court of Appeal, Fifth
    Appellate District, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    4
    

Document Info

Docket Number: A163744

Filed Date: 12/9/2022

Precedential Status: Non-Precedential

Modified Date: 12/9/2022