Filed 10/26/18 P. v. Jacobs CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appointed counsel for defendant Myron Hamish Jacobs has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We will order the trial court to correct an error we noted in the abstract of judgment. We otherwise affirm the judgment.

I. BACKGROUND

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, 123-124.)

In January 2015, defendant entered a local business establishment armed with a firearm. He robbed the victim of money by means of force, fear, or violence, with the intent to permanently deprive the victim of the money. Defendant then left with the money.

Defendant was charged with robbery in the second degree. (Pen. Code, § 211.)[1] It was further alleged defendant personally used a firearm (§ 12022.53, subd. (b)) and that he had two prior strikes (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)).

In January 2018, defendant pleaded no contest to robbery in the second degree. He also admitted the firearm use enhancement and one strike. In exchange, one of the strikes was stricken.

In March 2018, the trial court denied defendant’s motion to strike the firearm use enhancement. (§ 12022.53, subd. (h).) The trial court sentenced defendant to state prison for an aggregate term of 16 years, as follows: the middle term of three years for the robbery conviction, doubled to six years due to the strike, plus ten years for the firearm use enhancement. The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), and a corresponding $300 parole revocation fine, suspended unless parole is revoked (§ 1202.45). In addition, the trial court imposed a $10 crime prevention fee (§ 1202.5), a $40 court operations fee (§ 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373). The trial court awarded 1,187 days of custody credit.

The abstract of judgment does not include the $10 crime prevention fee. (§ 1202.5.)

Defendant filed a timely appeal and did not seek a certificate of probable cause.

II. DISCUSSION

Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed and we have received no such communication from defendant.

Our review of the record reveals that the abstract of judgment does not include the $10 crime prevention fee as ordered by the trial court. (§ 1202.5.) Where there is a discrepancy between the oral pronouncement of judgment and the abstract, the former controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will direct the trial court to correct the abstract of judgment.

We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.

III. DISPOSITION

The trial court is directed to correct the abstract of judgment to accurately reflect the sentence orally imposed. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

MAURO, J.