People v. Hang CA2/5

Facts On June 5, 2012, Brent Bailey engaged in a losing fight with appellants. He was kicked, choked, knocked unconscious, lost two of his front teeth, sustained a broken nose, a bloody eyeball and a split lip requiring multiple stitches.

1 All further statutory references are to the Penal Code unless otherwise specified. 2 Sara Ealba watched the fight and screamed to Hernandez, “Stop, stop., leave [him] alone.” Hernandez confronted her saying, “Shut the fuck up, bitch. You and your friend are gonna die tonight.” She believed him and sustained fear.

Discussion 1. Sentence Hernandez contends the abstract of judgment must be corrected to reflect the sentence actually imposed by the trial court at sentencing for his count 3 criminal threats conviction. Respondent agrees. We agree as well. The trial court stated, “Count 3 . . . I will select the mid base term and run it concurrent. . . .” The mid-term for a violation of section 422 is two years in state prison. However, the minute order and abstract of judgment both show a concurrent term of three years for count 3. When there is a conflict between the oral pronouncement of judgment and the minute order or abstract of judgment, the…