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Name: People v. Thompson
Case #: D054037
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/29/2009
Summary

When the record is in conflict, it will be harmonized if possible, but if it is not possible to do so, that part of the record which, because of its origin and nature or otherwise, is entitled to greater credence, will prevail. Appellant entered into a plea bargain whereby she pled guilty to gross vehicular manslaughter while intoxicated and driving under the influence with injury, and admitted a prior “strike” conviction and a prior serious felony conviction, in exchange for a prison sentence of 26 years and 4 months. At sentencing, the judge orally calculated the sentence as the upper term of 10 years for the manslaughter plus a consecutive term of one-third the middle term for the driving under the influence offense, which he stated was 1 year and 4 months, with the terms doubled because of the “strike” conviction. The correct term for the driving under the influence offense is 8 months and, despite the oral pronouncement, it was so reflected in the minutes and abstract. Although an oral pronouncement is generally presumed correct, when there is conflict, as was the case here, that part of the record entitled to greater credence will prevail. In this case, then, the erroneous statements in the reporter’s transcript are of no avail.
Penal Code section 654 does not preclude separate punishments for gross vehicular manslaughter and driving under the influence with injury, involving separate victims. Gross vehicular manslaughter is a crime of violence and when a defendant “commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons, his greater culpability precludes application of section 654.” (Neal v. State of California (1960) 55 Cal.2d 11; People v. McFarland (1989) 47 Cal. 3d 798.)