P. v. Hernandez
Filed 11/15/13 P. v. Hernandez CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAMIRO
TORREZ HERNANDEZ,
Defendant and Appellant.
A138262
(Del Norte County
Super. Ct.
No. CRF 13-9051)
Ramiro
Torrez Hernandez (Hernandez) appeals from a judgment
of conviction and sentence imposed after he entered a plea of no contest to
the charge of possession of
methamphetamine (Health & Saf. Code, § 11377). He contends the minute order of sentence must
be stricken to the extent it requires him to pay a presentence report fee,
because the court did not include that fee in its oral pronouncement of sentence. We will direct the trial court to modify the
judgment in all other respects.
I. FACTS AND PROCEDURAL HISTORY
Hernandez
was charged with possession of methamphetamine for sale (Health & Saf.
Code, § 11378), transportation of methamphetamine (Health & Saf. Code,
§ 11379), and possession of methamphetamine (Health & Saf. Code,
§ 11377).
Hernandez
entered a plea of no contest to the charge of possession of methamphetamine. Facts relevant to the charge were recounted
in the presentence report and are not at issue here.
At
the sentencing hearing in March 2013, the court suspended imposition of
sentence and placed Hernandez on probation for three years. The court stated that Hernandez would “pay a
fine of $450,†stayed a $280 “probation revocation fine,†and imposed a monthly
supervisory fee of $21 while Hernandez was on probation. The court ordered that the “fine†could be
paid in monthly installments of $50.
The
minute order memorializes certain fines imposed by the court, including a $280
restitution fine (Pen. Code, § 1202.4) and a $280 probation revocation
fine (Pen. Code, § 1202.44), the latter of which was stayed. The minute order also bears the following
handwritten notation, corresponding to the court’s statement at the sentencing
hearing: “Pay $450.00 fine to the Court,
total, see attached.â€
Attached
to the minute order is a three-page list of terms and conditions of Hernandez’s
probation. On the third page, along with
other fines and fees totaling $450 (plus the monthly supervision fee), is an
indication that a $400 presentence report fee would also have to be paid
pursuant to Penal Code section 1203.1b, subdivision (a). This fee was not mentioned by the court at
the sentencing hearing. There is no
abstract of judgment in the record.
Hernandez
filed a notice of appeal later in
March 2013. The trial court granted a
certificate of probable cause, concerning an issue that is not raised in Hernandez’s
opening brief.
II. DISCUSSION
Hernandez
contends that the notation requiring payment of the $400 presentence report fee
should be stricken from the minute order,
because the trial court did not order him to pay that fee when it orally
pronounced his sentence. Respondent
agrees.
The
oral pronouncement of sentence is deemed controlling. (People
v. Scott (2012) 203 Cal.App.4th 1303, 1324; see People v. Mitchell (2001) 26 Cal.4th 181, 185.) To the extent a minute order deviates from
the oral pronouncement, the deviation is considered to be clerical error. (People
v. Scott, at p. 1324.)
The
matter shall be remanded to the trial court to correct the minute order to
reflect the sentencing court’s oral pronouncement of sentence.
III. DISPOSITION
The
matter is remanded for the trial court to correct the minute order of sentence,
dated March 7, 2013, by
striking the notation that indicates imposition of a $400 presentence report
fee (Pen. Code, § 1203.1b, subd. (a)).
In all other respects, the judgment is affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
BRUINIERS, J.
