Filed 8/22/17 P. v. Hill CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN ANDREW HILL,
Defendant and Appellant.
| C084023
(Super. Ct. Nos. CM043490, 16CF02590, & CM042305)
|
Appointed counsel for defendant Brian Andrew Hill has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We note a discrepancy between the trial court’s oral pronouncement of judgment and the abstract of judgment and will order a correction of the abstract to conform to the oral pronouncement of judgment. Finding no other arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Case No. CM042305
On December 12, 2014, deputies executed a search warrant at defendant’s home and found a loaded rifle in defendant’s bedroom and a stolen computer. Deputies confirmed defendant was prohibited from possessing firearms.
On January 12, 2015, defendant was charged by amended complaint, deemed the information, with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)--count 1),[1] unlawful possession of ammunition (§ 30305, subd. (a)(1)--count 2), and receiving stolen property valued in excess of $950 (§ 496, subd. (a)--count 3), all felonies. The information alleged defendant suffered a prior 1995 strike for aggravated assault with a weapon in Utah. (§§ 667, subds. (b)-(i), 1170.12.)
Case No. CM043490
On September 8, 2015, narcotics task force agents executed a search warrant at defendant’s home. The search revealed more than 800 grams of methamphetamine, packaging material, drug paraphernalia, ammunition, $3,000, a cellular phone, and letters bearing defendant’s name.
On September 11, 2015, defendant was charged by criminal complaint with possession of methamphetamine for sale (Health & Saf. Code, § 11378--count 1) and unlawful possession of ammunition (§ 30305, subd. (a)(1)--count 2), both felonies. The complaint alleged defendant committed both offenses while released from custody on bail or his own recognizance (§ 12022.1) and suffered a prior 1995 strike conviction in Utah (§§ 667, subds. (b)-(i), 1170.12).
Case No. 16CF02590
On May 12, 2016, defendant was charged by criminal complaint with felony failure to appear while released from custody on his own recognizance. (§ 1320, subd. (b).) The complaint alleged defendant committed the offense while released from custody on his own recognizance. (§ 12022.1.)
Entry of Plea
On October 26, 2016, defendant entered a negotiated plea of no contest to violation of Health and Safety Code section 11378 (count 1) in case No. CM043490, violation of section 29800, subdivision (a)(1) (count 1) in case No. CM042305, and violation of section 1320, subdivision (b) in case No. 16CF02590 in exchange for a maximum possible sentence of four years and four months in state prison and dismissal of all remaining charges and allegations subject to a Harvey[2] waiver. The parties stipulated to a factual basis for the plea, as derived from the probation report.
Sentencing
On December 28, 2016, the trial court denied probation and sentenced defendant to the upper term of three years for the Health and Safety Code violation, plus eight months (one-third the middle term) each for the two remaining felonies, for an aggregate sentence of four years four months in state prison. The court awarded defendant 220 days of presentence custody credit (110 actual days plus 110 days of conduct credit) and imposed fees and fines as follows:
Case No. CM043490 (Case “A”): A $300 restitution fine (§ 1202.4); a $300 parole revocation restitution fine, stayed pending successful completion of parole (§ 1202.45); a $40 court operations assessment (§ 1465.8); a $30 conviction assessment (Gov. Code, § 70373); a $50 criminal lab fee (Health & Saf. Code, § 11372.5, subd. (a)); a $150 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)); and a $736 presentence investigation report fee (§ 1203.1b).
Case No. 16CF02590 (Case “B”): A $300 restitution fine (§ 1202.4); a $300 parole revocation restitution fine, stayed pending successful completion of parole (§ 1202.45); a $200 fine (§ 672), “plus the recommended funds and assessments including the mandatory [$]30 and [$]40 for a total of [$]850.”[3]
Case No. CM042305 (Case “C”): A $300 restitution fine (§ 1202.4); a $300 parole revocation restitution fine, stayed pending successful completion of parole (§ 1202.45); a $40 court operations assessment (§ 1465.8); and a $30 conviction assessment (Gov. Code, § 70373).
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
II
Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant.
We note a discrepancy between the trial court’s oral pronouncement of judgment and the abstract of judgment. The abstract of judgment imposes an $850 aggregate fine as to case Nos. 16CF02590 (Case “B”) and CM042305 (Case “C”). However, the court did not orally impose an $850 aggregate fine as to case No. CM042305 (Case “C”); rather, of that aggregate fine, the court imposed only the mandatory $40 court operations assessment (§ 1465.8) and $30 conviction assessment (Gov. Code, § 70373). When there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mesa (1975) 14 Cal.3d 466, 471.) Under our inherent authority to correct such clerical errors (People v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Anthony (1986) 185 Cal.App.3d 1114, 1125-1126), we order correction of the abstract of judgment to conform to the trial court’s oral pronouncement of judgment regarding case No. CM042305 (Case “C”).
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is ordered to prepare a corrected abstract of judgment as to case No. CM042305 (Case “C”), striking the $850 aggregate fine and imposing instead the $40 court operations assessment (§ 1465.8) and $30 conviction assessment (Gov. Code, § 70373). The court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/
Blease, J.
We concur:
/s/
Raye, P. J.
/s/
Butz, J.
[1] Undesignated statutory references are to the Penal Code.
[2] People v. Harvey (1979) 25 Cal.3d 754.
[3] The probation report breaks down the recommended $850 aggregate fine as follows: A $200 fine (§ 672), plus a $40 court surcharge (§ 1465.7); a $100 state court facilities construction fund fee (Gov. Code, § 70372, subd. (a)); a $200 state penalty assessment (§ 1464); a $20 DNA identification fund fee (Gov. Code, § 76104.6); an $80 DNA identification fund fee (Gov. Code, § 76104.7); a $140 county penalty assessment (Gov. Code, § 76000); a $30 conviction assessment (Gov. Code, § 70373); and a $40 court operations assessment (§ 1465.8).
