NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

THE COURT*

A jury convicted appellant, Christina Iris Kerr, of petty theft with a prior (Pen. Code, § 666; count 1)1 and second degree burglary (§§ 459, 460, subd. (b); count 2). In a separate proceeding, appellant admitted allegations that she had suffered a "strike"2 and that she had served two separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed a six-year prison term, consisting of the three-year upper term on count 2, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and concurrent one-year terms on each of the two prior prison term enhancements. On count 1, the court imposed a six-year term and stayed it pursuant to section 654.

Appellant appealed. On appeal, this court held that the trial court erred in imposing concurrent terms on the section 667.5, subdivision (b), prior prison term enhancements and remanded the matter "so that [the trial court] may comply with section 1385, subdivision (a) if it decides to strike any of the prior prison term enhancements."

On remand, the court imposed six-year terms on each of counts 1 and 2; stayed the former term pursuant to section 654; struck the two prior prison term enhancements; imposed a restitution fine (§ 1202.4, subd. (b)) of $200 and a parole revocation fine (§ 1202.45) in the same amount; and stayed the latter fine pending successful completion of parole. The abstract of judgment, however, states that both fines are in the amount of $300.

On appeal, appellant contends, and the People concede, the abstract of judgment must be corrected to accurately reflect the amounts of the restitution fine and the parole revocation fine. In addition, the People argue that on resentencing, the court failed to comply with section 1385, subdivision (a) (section 1385(a)), and that the matter should be remanded to allow the court to do so. We will vacate the sentence, remand for further proceedings, and otherwise affirm.

DISCUSSION

Abstract of Judgment

As indicated above, the abstract of judgment does not correctly indicate the amount of the restitution fine and the parole revocation fine. The parties assert that the proper appellate response is to direct the trial court to issue an amended abstract of judgment, correcting the errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical error in their records at any time and appellate courts that have assumed jurisdiction over a case may order correction of abstracts of judgment that do not accurately reflect judgment].) However, as we explain below, we must vacate the sentence and remand for resentencing. The abstract of judgment issued following remand should, of course, accurately set forth the amount of the restitution fine and the parole revocation fine.

Section 1385(a)

A different judge presided at the remand proceeding, with appellant's consent. After stating it had reviewed several documents, a statement in mitigation submitted by appellant, and "several letters attached relative to ... [appellant's] character," the court stated it would "strike the punishment" for the two prior prison enhancements, and stated its reasons for doing so, as follows: "With regards to the two 667.5(b) priors as indicated by [the judge who presided at appellant's initial sentencing] at the time, and as clearly reflected in the letters, [appellant] has made an effort to — although this is obviously an obstacle to that effort, temporary road block — but she has made some strides in a very positive fashion toward turning her life around. She has had a positive impact on some people who think very highly of her, as demonstrated in the letters. And I think — all and all she does show some potential. She has certainly the potential to become a law abiding citizen should she choose to do so in the future; that looks like that's what she sincerely would like to do. Hopefully when she gets out of prison she will be able to follow that course. [¶] So based on those factors, based on the circumstances in the letters, her circumstances, the positive steps she has taken towards rehabilitating herself as set forth in those letters, I will strike the punishment then as to both 667.5(b) priors."

The court's minutes state that the court ordered the prior prison term enhancement allegations stricken, but do not indicate the court's reasons for that order.

Section 1385(a) provides in relevant part: "The judge ... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." As our Supreme Court explained in People v. Bonnetta (2009) 46 Cal.4th 143 (Bonnetta), "The discretion thereby conferred on the trial courts includes the discretion to dismiss or strike an enhancement in the furtherance of justice. [Citations.] But whether the decision is to dismiss the entire action or, as here, only an enhancement allegation, Penal Code section 1385 requires that the reasons for the dismissal be set forth `in an order entered upon the minutes.'" (Id. at pp. 145-146.) The court held the provisions of section 1385 are mandatory and that because of the trial court's failure to comply with the requirement of a written statement of reasons for its order dismissing several enhancements, that order was ineffective. Thus, under Bonnetta, the court's failure in the instant case to comply with section 1385(a) rendered its purported striking of the prior prison term enhancements ineffective.

We turn now to the question of the proper disposition. In Bonnetta, our Supreme Court stated that notwithstanding the trial court's on-the-record statement of its reasons for dismissing the enhancements, remand was necessary. The court reasoned as follows: "[A]s the trial court's order of dismissal is ineffective, the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason. In such cases, the court must also have the power to take action such as reconvening the sentencing hearing or allowing a defendant to withdraw a plea entered on the understanding a count or an enhancement would be dismissed." (Bonnetta, supra, 46 Cal.4th at p. 153.)

The People ask that the matter be remanded "to permit the trial court to place reasons [for striking the prior prison term enhancements] in the minutes ...." The People also state, "In light of the prosecutor's agreement that the sentence imposed is the appropriate one, respondent will not again request that the case be remanded to permit the trial court to decide whether to dismiss the enhancements ...." However, as indicated above, in Bonnetta, where the trial court failed to effectively dismiss enhancements despite clearly expressing the intention to do so in the exercise of its statutory discretion, our Supreme Court concluded that remand was necessary to allow the court to exercise that discretion. Here, under similar circumstances, remand for that purpose is likewise appropriate.

DISPOSITION

The sentence is vacated and the matter is remanded for proceedings consistent with the views expressed in this opinion. The judgment is otherwise affirmed.