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People v. Andrews2/13/2004
Pursuant to the terms of a negotiated plea agreement, appellant Donald Andrews entered a plea of no contest to driving under the influence and causing great bodily injury, a violation of Vehicle Code section 23153, subdivision (b) (count 2 of the Information). He also admitted a prior serious felony conviction (Pen.Code, [FN1] § 1170.12, subd. (c)(1)), a prior prison term allegation (§ 667.5, subd. (b)); three priors limiting probation eligibility (§ 1203, subd. (e)(3)); and the infliction of great bodily injury causing brain injury and/or paralysis (§ 12022.7, subd. (b).) The terms of the plea agreement were that, in exchange for appellant's admissions, the court would dismiss count 1 of the Information (a violation of Veh.Code, § 23153, subd. (a), felony drunk driving with bodily injury), strike the section 12022.7, subdivision (b) and section 667.5, subdivision (b) allegations and sentence appellant to a term of seven years eight months. The charges were filed after a single car accident where Andrews was found to be driving with a blood alcohol level of .14 percent. Andrews's passenger, Rebecca Navarro, suffered serious injuries in the accident, including complete paralysis of her lower and upper extremities, caused by a severed spinal cord. [FN2]
FN1. All statutory references are to the Penal Code unless otherwise indicated.
FN2. Ms. Navarro died on January 14, 2003, just twelve weeks after the accident. Her cause of death cannot be determined by the appellate record.
DISCUSSION
The sole error alleged on appeal is a sentencing error, which has been conceded by the respondent and has been subsequently corrected by the trial court. The trial court initially sentenced Andrews to 16 months, doubled to 32 months plus three years pursuant to section 667, subdivision (a)(1), plus one year pursuant to section 667.5, subdivision (b) for a total of six years, eight months. (The abstract incorrectly totaled the term imposed at seven years, eight months.) This was not consistent with the indicated sentence, nor was it a sentence authorized by law. (See § 667, subd. (a) [imposes mandatory five-year terms]; People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413 [appellate court has authority to correct unauthorized sentence].)
After the briefs were filed in this case, the trial court issued an order dated September 8, 2003, amending the judgment as follows:
"The abstract shall be amended to reflect 32 months on the count 2 conviction of 23153(b) and 5 years consecutive on the 667(a)(1) for a total of 7 years 8 months."
The trial court's action renders the appeal moot. However, because the record does not establish that a new abstract has been prepared to reflect the amendment, we will order that a new abstract be prepared by the trial court. (People v. Mitchell (2001) 26 Cal.4th 181, 188 [corrected abstract should be ordered when inconsistent with minute order].)
DISPOSITION
The judgment, as amended by the trial court's minute order of September 8, 2003, is affirmed. The trial court is directed to have a new abstract of judgment prepared consistent with its September 8, 2003 minute order, and to correct the court minutes to reflect the amendment and also to reflect the dismissal of count 1 and the striking of the prior prison term and great bodily injury enhancement pursuant to Penal Code section 1385, subdivision (a)(1). The clerk of the superior court shall forward a copy of the amended abstract to the appropriate authorities.
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