Opinion
B309185
10-25-2021
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEE BERRY, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA027446, William C. Ryan, Judge. Modified and, as so modified, affirmed.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P.J.
In 1998, a jury convicted Kenneth Lee Berry of assault by means of force likely to produce great bodily injury, unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851, and misdemeanor battery. Sentenced to 50 years to life pursuant to the Three Strikes law, plus five years, in 2014 Berry petitioned for relief pursuant to Proposition 36, the Three Strikes Reform Act of 2012 (hereinafter Proposition 36). The trial court granted the Proposition 36 petition as to the Vehicle Code offense, but at resentencing, denied Berry's Romero motion to strike his two prior strike convictions pursuant to Penal Code section 1385. Berry appeals, arguing that the court's denial of his Romero motion was an abuse of discretion. He also asserts that the abstract of judgment must be corrected to reflect that the court struck, rather than stayed, five prior prison term enhancements. We order the abstract corrected as Berry requests, and otherwise affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the factual background in part from our earlier opinions in this matter, and from the record in Berry's direct appeal, of which we have taken judicial notice at Berry's request. (Evid. Code, §§ 451, 459.)
1. Berry's commitment offenses, sentence, and first appeal
In the early morning hours of June 17, 1997, Rene Dent was at her North Hills home with her 11-year-old daughter. Dent and Berry had known each other for approximately 25 years. According to Berry, they had been in a dating relationship for approximately the preceding two years. Just after midnight, Berry, uninvited, knocked on Dent's bedroom window and she let him in the house. He asked her for a check to repay money he had given or loaned her. Dent stated that she had no money. Berry kept asking for a check, and Dent asked him to leave.
Berry began searching the house for the presence of another man. When Dent attempted to call the police, Berry snatched the phone from her. He choked her with both hands and pushed her on the bed. Dent called out to her daughter, who told Berry to leave. Berry punched Dent in the face, knocking her to the floor. Then he repeatedly stomped on her head and torso with his boot. When Berry stopped kicking Dent, he stated, "I will kill you, bitch."
Berry then took Dent's car keys without her permission and drove away in her Honda Accord. When police apprehended him hours later, he said, "Man, I know I fucked up. I lost it. I went to her house, saw her with another guy. I got pissed and pushed her. I know I shouldn't have taken the car."
Berry testified in his own behalf, as follows. He admitted going to Dent's house and choking her, but stopped when she said he was hurting her. Dent grabbed him and attempted to kick him. In response, Berry hit Dent, causing her to fall. He decided to take her car, but intended to return it. He ran out to the car, but then realized he did not have the keys. He returned to the house and stumbled over Dent, who was lying on the floor. He accidentally stepped on her face. He did not kick or stomp her.
On March 31, 1998, the jury convicted Berry of assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1), count 1); unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 4), and misdemeanor battery, a lesser included offense of battery with serious bodily injury (§ 242, count 5). It acquitted Berry of robbery (§ 211), grand theft person (§ 487, subd. (c)), grand theft auto (§ 487, subd. (d)), and battery with serious bodily injury (§ 243, subd. (d)). The jury additionally found Berry had suffered two prior "strike" convictions for robbery and had served five prior prison terms within the meaning of section 667.5, subdivision (b).
The trial court sentenced Berry to a term of 50 years to life, plus five years, configured as follows: on count 1, 25 years to life pursuant to the Three Strikes law; on count 4, a consecutive term of 25 years to life pursuant to the Three Strikes law; and for each of the five section 667.5, subdivision (b) prior prison term enhancements, one additional year. Sentence on the simple battery offense was stayed pursuant to section 654.
A different panel of this Division affirmed the judgment. (People v. Berry (Aug. 5, 1999, B122476) [nonpub. opn.] (Berry I))
2. Proposition 36 petition for resentencing and appeal
In November 2012, California voters approved Proposition 36 which-in contrast to prior law-provided that a defendant is subject to a 25-years-to-life term under the Three Strikes law only if his or her current, third felony is itself serious or violent, or if certain exceptions apply. (People v. Valencia (2017) 3 Cal.5th 347, 350, 353-354.) Proposition 36 also enacted section 1170.126, which provides that eligible persons serving indeterminate life terms under the Three Strikes law may file a petition in the sentencing court seeking to be resentenced to a shorter term under the amended law. (People v. Frierson (2017) 4 Cal.5th 225, 231; People v. Estrada (2017) 3 Cal.5th 661, 667.)
On March 20, 2014, Berry, who was represented by counsel, petitioned for Proposition 36 resentencing on counts 1 and 4, the assault and Vehicle Code section 10851 offenses, respectively. As to the former, the resentencing court denied the petition on the ground that during commission of the assault, Berry "intended to inflict, and did inflict great bodily injury, making him ineligible" pursuant to section 1170.126, subdivision (e)(2). It did not separately rule on whether Berry was eligible for resentencing on the Vehicle Code section 10851 offense.
Berry appealed. In a nonpublished opinion, we reversed and remanded. (People v. Berry (Feb. 24, 2017, B264757) [nonpub. opn.] (Berry II).) We concluded that, in light of our Supreme Court's decision in People v. Johnson (2015) 61 Cal.4th 674, the trial court had erred by failing to consider whether Berry should be resentenced on the Vehicle Code offense. As to the assault charge, we concluded that there was ample evidence to prove, beyond a reasonable doubt, that Berry intended to inflict great bodily injury on Dent during the assault. However, it was unclear whether the trial court had applied the beyond a reasonable doubt or preponderance of the evidence standard. Accordingly, we reversed the denial of the petition and remanded for a further hearing on both the assault and the Vehicle Code convictions.
On May 10, 2017, our Supreme Court granted the People's petition for review and ordered briefing deferred pending resolution of People v. Frierson, supra, 4 Cal.5th 225 (concerning the correct standard of proof for an ineligibility finding) and People v. Estrada, supra, 3 Cal.5th 661 (concerning a trial court's reliance on the facts of a dismissed count in determining ineligibility). On May 16, 2018, after issuance of the opinions in Frierson and Estrada, the Supreme Court dismissed review in Berry.
3. 2018 Proposition 36 eligibility hearing and denial of Romero motion at resentencing
On December 3, 2018, the trial court conducted a new Proposition 36 hearing and concluded that Berry was eligible for relief on the Vehicle Code offense, but was ineligible on the assault conviction because, beyond a reasonable doubt, he intended to inflict great bodily injury on Dent during the assault.(See § 1170.126, subd. (e)(2).) The court scheduled a suitability hearing on the Vehicle Code count for a future date.
Berry appealed the trial court's order insofar as it found him ineligible for Proposition 36 relief on the assault offense, arguing that the evidence was insufficient to support the conclusion he intended to inflict great bodily injury. We rejected this claim and affirmed the order. (People v. Berry (Mar. 11, 2020, B294439 [nonpub. opn.] (Berry III).)
On May 13, 2019, before resentencing transpired, Berry filed a Romero motion requesting that the court strike one or both of his prior convictions as they pertained to the assault count. He argued that he fell outside the spirit of the Three Strikes law because the current offense and the prior strikes were remote in time; he had served over 20 years of his sentence on the current offense; the current offense occurred when he reacted "to an emotionally charged situation" and believed the victim was "cheating on him"; he did not use weapons in the assault and did not inflict serious bodily injury; the current offense, a domestic violence incident, was "distinguishable" from the prior "strike" robberies; he had exhibited "exemplary" conduct while in prison, including participating in prison programming; he was 63 years old, suffered from chronic health conditions, and had to use a walker; and he had good prospects if released from prison.
The People opposed the motion, arguing that granting it would not serve the interests of justice. They emphasized the brutal nature of the current offense; observed that Berry's criminal history was lengthy and serious, and there had been no significant period in his life during which he was free from incarceration; and while incarcerated, he displayed a "continued pattern of disobedience."
At a hearing on June 5, 2019, the court tentatively denied the Romero motion. It found Berry was suitable for Proposition 36 resentencing on the Vehicle Code offense. Resentencing would not pose an unreasonable danger to public safety because the life term remained in place on the assault offense; therefore, Berry would not actually be released unless the Board of Parole Hearings determined he was suitable. Defense counsel requested that resentencing be postponed until she determined whether Berry wished to waive his appearance. The trial court did not articulate its reasons for tentatively denying the Romero motion, and defense counsel did not offer any argument on the motion or request elaboration of the court's reasoning.
On November 5, 2020, Berry filed supplemental exhibits in support of his Romero motion, including updated health records.
The resentencing hearing transpired on November 10, 2020. Before imposing the new sentence, the court asked defense counsel whether there was anything she "want[ed] to add." Defense counsel noted that at the June 5, 2019 hearing, the court had indicated it would deny the Romero motion, but she did not know whether it had been "officially ruled on." The court replied, "I've ruled on the Romero, [we've] done that. You don't get another bite at the apple. You've had your chance." Defense counsel did not object. The court then recalled and vacated sentence on count 4, the Vehicle Code offense. It resentenced Berry to the high term of three years, doubled pursuant to the Three Strikes law, to run concurrently with the 25-years-to-life term on count 1. It ordered the five section 667.5 one-year priors stricken.
DISCUSSION
1. The resentencing court did not abuse its discretion by denying Berry's Romero motion
Berry argues that the denial of his Romero motion was an abuse of discretion. We disagree.
a. Applicable legal principles
In furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 504.) When considering whether to do so, it considers "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161; People v. Bernal (2019) 42 Cal.App.5th 1160, 1170; People v. Solis (2015) 232 Cal.App.4th 1108, 1124.) The court must also consider the defendant's constitutional rights and society's interest in the prosecution of crimes. (People v. Johnson, supra, 61 Cal.4th at pp. 688-689.)
We review the court's ruling under the deferential abuse of discretion standard. The"' "burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) It is" 'not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations." (Id. at p. 378.) The Three Strikes law "not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm . . . . [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Ibid.) Thus, a court abuses its discretion when it was unaware of its discretion to strike, considered impermissible factors, failed to consider relevant factors, or rendered a ruling that is arbitrary, capricious or patently absurd under the specific facts of the particular case. (Ibid.; People v. Avila (2020) 57 Cal.App.5th 1134, 1141.) We presume the court considered all the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310; People v. Pearson (2008) 165 Cal.App.4th 740, 749.)
Our Supreme Court has explained that only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 378.) Therefore, "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Ibid.) " '" 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'" '" (Id. at p. 377.) However, not every recidivist falls within the spirit of the Three Strikes law. The fact that only extraordinary circumstances justify deviating from the Three Strikes sentencing scheme does not mean such cases do not exist. (People v. Avila, supra, 57 Cal.App.5th at p. 1140.)
When part of a sentence is modified pursuant to Proposition 36, a full resentencing as to all counts is appropriate. (People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand" 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "]; People v. Hubbard (2018) 27 Cal.App.5th 9, 13.) Thus, when a defendant's sentence is recalled pursuant to Proposition 36, the trial court has jurisdiction to consider a request for discretionary relief under section 1385 and Romero. (People v. Hubbard, at pp. 12-13.)
b. Application here
Berry has not met his burden to show the trial court's sentencing decision was an abuse of discretion. The record gives no hint that the court considered impermissible factors, or failed to consider those that were relevant. The court was obviously aware it had discretion to grant the Romero motion; Berry's memorandum of points and authorities so argued, and the court's denial of the motion ipso facto demonstrates its awareness of its discretion. In his briefs below, Berry brought to the court's attention the circumstances of the current and prior crimes, his prison behavior and programming, and his age and medical condition. He incorporated by reference numerous exhibits related to these issues that had been earlier filed in conjunction with his Proposition 36 petition. When ruling on the Proposition 36 petition, the court indicated its ruling was based on the pleadings, exhibits, and the arguments of counsel; and its minute order for June 5, 2019-the date it tentatively denied the Romero motion-likewise noted that it had received the pleadings and attached exhibits. Thus, it is clear the court had before it and considered information pertaining to all factors Berry contends were relevant. (See People v. Myers, supra, 69 Cal.App.4th at p. 310 [court "is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary."].) Nor is there any indication the court failed to engage in an "individualized consideration" of Berry's background and circumstances. The record does not indicate the court based its ruling on improper considerations, and counsel did not object or request further clarification of the bases for the ruling.
A trial court is not required to state its reasons for denying a Romero motion. (In re Large (2007) 41 Cal.4th 538, 550.)
The court's apparent determination that the circumstances of the instant offenses, coupled with Berry's criminal history, showed he fell within the spirit of the Three Strikes law was neither arbitrary nor capricious. In the commitment offense, Berry arrived uninvited at the victim's residence in the middle of the night. He prevented her from calling police and refused to leave when she asked him to. He brutally attacked Dent in the presence of her young daughter. He choked her, punched her in the face, knocked her to the floor, and repeatedly stomped on her head and torso with his boot. He threatened to kill her. He then took her car without her permission. Nothing about the circumstances of the current offenses suggests Berry falls outside the law's spirit.
Berry makes several arguments aimed at minimizing the significance of these facts, but none is persuasive. That he did not succeed in inflicting serious bodily injury on Dent was merely fortuitous, and not attributable to any restraint on his part. The jury's verdict on the assault charge demonstrates his actions were likely to result in great bodily injury. Contrary to Berry's implicit suggestion, we do not think that a domestic abuser is less culpable because his jealously and suspicions-here, apparently unfounded-impelled him to engage in violence. The fact he did not assault Dent earlier, during their 25-year friendship, is of no moment: according to Berry's testimony, for approximately the first 23 years of that time they were close friends, but not involved in a romantic relationship. Thus, the absence of prior domestic violence does not suggest this instance was an aberration. And the fact the assault was a different type of crime than the strike offenses is immaterial. While a defendant's repetition of similar crimes may show he has failed or refused to learn his lesson (People v. Williams, supra, 17 Cal.4th at p. 163), the fact a defendant has committed a variety of offenses does not conversely suggest he falls outside the Three Strikes law's spirit. Instead, this circumstance indicates that Berry is capable of committing a wide variety of serious offenses. Three Strikes sentencing is not limited to situations in which a defendant exclusively pursues a particular species of criminal conduct. Moreover, Berry had suffered prior convictions for unlawfully driving or taking a vehicle, one of the current offenses.
Berry's criminal history is extensive. According to a 1981 probation report, Berry's juvenile history includes, among other things, a 1970 sustained petition for assault with intent to commit robbery; a 1971 sustained petition for attempted robbery; and a 1972 sustained petition for assault with intent to commit murder and armed robbery. According to the jury's findings on the section 667.5 prior prison term allegations in the instant case and a probation report, Berry's adult criminal history began decades ago and continued unabated whenever he was not incarcerated. In November 1976, he was convicted of unlawfully driving or taking a vehicle. In July 1977, he was convicted of possession of a controlled substance. In December 1977, he was convicted of assault with a deadly weapon and battery in Nevada. For each of these offenses, he served time in jail. In 1978, he was convicted of his first "strike" offense, robbery, and was sentenced to three years in prison. In 1981, he was convicted of his second strike offense, robbery with a firearm, and was sentenced to a four-year prison term. In 1986, he was convicted of being a felon in possession of a firearm, and again sentenced to prison. In 1989 he was convicted of giving false identification to a peace officer, and sentenced to jail. In 1990, he was convicted of unlawfully driving or taking a vehicle and sentenced to two years in prison. In 1993, he was convicted of the sale or transport of a controlled substance, and sentenced to four years in prison. While released on parole, he repeatedly violated parole and was returned to custody numerous times. In June 1997, he committed the instant offenses. The bulk of his crimes were serious, and resulted in prison sentences. They did not arise from a single period of aberrant behavior. In short, Berry's criminal history demonstrates he is "the kind of revolving-door career criminal for whom the Three Strikes law was devised." (People v. Gaston (1999) 74 Cal.App.4th 310, 320; People v. Pearson, supra, 165 Cal.App.4th at p. 749; People v. Bernal, supra, 42 Cal.App.5th at p. 1170 [trial court "acted within the applicable standards when it declined, based on defendant's 'unrelenting' criminal behavior, to find that he [fell] outside the spirit of the three strikes law"]; People v. Gillispie (1997) 60 Cal.App.4th 429, 434 [trial court may rely on the record of conviction to justify denial of relief under section 1385].)
Berry attempts to minimize the significance of his prior record in two ways. He argues that the prior strikes were remote, having been suffered in 1978 and 1981. Remoteness is a factor in mitigation but is insufficient, by itself, to remove a defendant from the spirit of the Three Strikes law. (People v. Avila, supra, 57 Cal.App.5th at p. 1141.) It is a mitigating factor where it "carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813; People v. Gaston, supra, 74 Cal.App.4th at p. 321 [leading a crime-free life between the strike priors and current crimes "would give significance to the remoteness in time of those strikes."].) But remoteness has little mitigating force "where, as here, the defendant has led a continuous life of crime." (People v. Pearson, supra, 165 Cal.App.4th at p. 749; People v. Humphrey, at p. 813 [a trial court should not "simply consult the Gregorian calendar with blinders on."].) Berry's criminal record contains no significant period of time when he was out of custody and leading a crime-free life. While incarcerated, presumably his opportunity to commit crimes was curtailed. The passage of time, therefore, is not a significant mitigating circumstance here.
Berry also urges that he committed the strike priors when he was still a youthful offender. He was not quite 22 when he committed the first robbery, and was 24 when he committed the second. He argues, correctly, that under current penological approaches, his age at the time he committed the strikes is a mitigating factor. (See O.G. v. Superior Court (2021) 11 Cal.5th 82, 88; People v. Avila, supra, 57 Cal.App.5th at p. 1142 [noting the "increasing recognition that young adults are constitutionally different from adults for sentencing purposes because of their diminished culpability and greater prospects for reform."].) But, nothing in the record suggests the trial court declined to take this factor into account. Moreover, Berry's record is not limited to the two offenses committed when he was a youthful offender. To the contrary, as we have set forth above, his crimes continued through his 30's, and the current offenses were committed when he was 41 years old.
Berry argues additional mitigating factors exist. He is now 65 years old, and has served 21 years on his current crime. Medical records indicate that while incarcerated he underwent back surgery in 2011. In March 2018, he was treated for a bacterial infection that caused partial paralysis; he subsequently went into respiratory failure and was intubated. He has carpal tunnel syndrome and cubital tunnel syndrome. He also suffers from well-controlled Diabetes type II and coronary artery disease, which is stable. Berry asserts that since 2018 he has been housed at the California Health Care Facility in Stockton due to his medical issues, and at the time of the Romero motion, was still required to use a walker. Medical records show he was using the walker at least as late as June and July 2020.
Berry also asserts that his prison record has been "exemplary," with only a single serious rules violation during his incarceration. In that incident, which occurred in February 2002, a "CDC-115" issued after he asked a prison staff member if he could call her after work. It appears he suffered a second rules violation in February 2009, when he refused to sign for copies that had been made for him. Between February 1999 and July 2010, he received six "CDC-128A Custodial Counseling Chronos."
A "CDC-115" "is a rules violation report issued when 'misconduct is believed to be a violation of law or is not minor in nature.'" (In re Perez (2016) 7 Cal.App.5th 65, 74, fn. 5.)
A CDC-128A Custodial Counseling Chrono is "issued when 'minor misconduct recurs after verbal counseling or if documentation of minor misconduct is needed.'" (In re Perez, supra, 7 Cal.App.5th at p. 75, fn. 6.) Berry received the following CDC-128A's: In February 1999, he delayed lock up by failing to go to his assigned cell. In March 1999, he refused to shave his beard, a breach of prison rules. In September 1999, he failed to return to his housing unit from the yard as required. In June 2001, he engaged in disruptive behavior, refused to comply with instructions, and incited others to commit violence toward staff. In May 2010, he was found out of bounds in a vocational electronics class. In July 2010, he failed to report to his job assignment.
Berry also argues that he maintained a positive prison record during his incarceration. At the time of the Romero motion, his classification score was 19 and his California Static Risk Assessment score was 1, which he avers were the lowest scores available to him as a life prisoner. He also contends his prison programming demonstrates his rehabilitation and acceptance of responsibility for his offenses.
The record indicates Berry attended Narcotics Anonymous meetings and "Lifer" group meetings between 1999 and 2002. In 2009, he took a vocational typing class that covered Word software. In 2013 he attended a 12-week program entitled "Making Good: How Ex-Offenders Rebuild and Reform Their Lives." In 2014, he attended a power point presentation on how to control hypertension. From July 2015 through February 2016, he participated in a men's motivational group. In 2015 and 2016, he participated in "Relay for Life" fundraisers.
Although we view Berry's favorable characterization of his prison programming as overstated, we nonetheless agree that his efforts at rehabilitation are commendable. His age and his medical conditions are factors that tend to support granting the Romero motion. Nonetheless, neither Berry's age, medical conditions, nor prison conduct is of such an ilk as to outweigh the negative aspects of his record-his criminal history and the circumstances of the current offenses-as a matter of law. (See People v. Bernal, supra, 42 Cal.App.5th at p. 1170 ["the presence of mitigating evidence is not enough to render the trial court's decision an abuse of discretion"].) Even assuming a reasonable person might view Berry, at this point in time, as falling outside the spirit of the Three Strikes law, this is not sufficient to meet his burden. Berry has not shown that his is an extraordinary case in which no reasonable person could agree that he falls within the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.) The deferential abuse of discretion standard we must apply here "asks not whether the trial court's decision was correct in the sense that it is the same decision we would have made; rather, it asks whether the court's decision falls within the range of outcomes permitted by the controlling law." (Bernal, at p. 1170.) The court's ruling meets that standard here, and accordingly we are neither" 'authorized nor warranted in substituting'" our judgment for that of the trial court. (Carmony, at p. 377.) Accordingly, we must affirm the denial of the Romero motion.
2. Correction of the abstract of judgment
At the November 2019 resentencing, the trial court ordered the five section 667.5, subdivision (b) one-year enhancements stricken. The abstract of judgment, however, indicates that they were stayed. The parties agree that the abstract is incorrect, and Berry requests that we order it corrected. Where an abstract of judgment differs from the court's oral pronouncements, any discrepancy is generally deemed to be the result of clerical error, which may be corrected on appeal. (People v. Jones (2012) 54 Cal.4th 1, 89.) Accordingly, we order the abstract of judgment corrected.
DISPOSITION
The abstract of judgment is ordered corrected to reflect that the five section 667.5, subdivision (b) enhancements were stricken, not stayed. The clerk of the superior court is directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: LAVIN, J., EGERTON, J.