People v. Massey CA1/5 ( 2022 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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