People v. Degante CA4/3

DISCUSSION

We begin by addressing the trial court’s failure to pronounce a sentence on the one-year prior prison term enhancement that is the basis for this appeal. Had the court, Degante, or the Attorney General in the underlying appeal been aware of the conflict between the oral pronouncement of judgment and the minute order and abstract of judgment, this court would

3 have remanded the matter to the trial court to resolve the conflict. Failure to impose or strike an enhancement results in a legally unauthorized sentence subject to correction. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432.) The abstract of judgment is not itself the judgment of conviction and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Initially, Degante argues remand is not appropriate and is unnecessary. He asserts the trial court has already ordered what the minute order and abstract reflect, and correction is unnecessary. Alternatively he argues, had this court caught the error in the underlying appeal, the judgment would have been corrected by modification then. Degante appears to be arguing against…