Filed 4/9/18 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

GEOREL EMMANUEL PEREZ,

Defendant and Appellant.


E067470

(Super.Ct.No. 16CR-038454)

OPINION


APPEAL from the Superior Court of San Bernardino County. James J. Hosking, Judge. Affirmed as modified in part, reversed in part, and remanded with directions.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Georel Emmanuel Perez guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 2), and making criminal threats (§ 422, subd. (a); count 3). The jury also found true that during the commission of counts 2 and 3, defendant personally used a knife. Defendant was sentenced to a total term of four years in state prison with credit for time served as follows: the midterm of three years on count 2, plus a consecutive one-year term for the knife use enhancement attached to count 2. A term of three years on count 1, a term of two years on count 3, and a term of one year for the enhancement attached to count 3 were stayed pursuant to section 654.
On appeal, defendant argues (1) the 15 percent limitation on conduct credits does not apply in this case, (2) the trial court lacked a sufficient factual basis to properly determine the amount of reimbursements ordered for court-appointed counsel and the presentence probation report, (3) the trial court failed to exercise the required discretion in ordering $3,600 in state restitution fines, and (4) his counsel was ineffective in failing to raise objections to the court’s orders imposing the financial penalties. For the reasons explained below, we agree with the parties that defendant is entitled to additional presentence conduct credits, and remand the matter for a hearing on defendant’s ability to pay the imposed fines and fees, and for the trial court to exercise its discretion in accordance with the law as articulated in this opinion.
II
FACTUAL BACKGROUND
On March 4, 2016, during an argument inside a parked vehicle in front of a commercial building, defendant punched his girlfriend. The argument was loud enough to attract the attention of employees of a business next to where they were parked. One of the employees heard defendant’s girlfriend asking for help and for someone to call the police, so he called 911. Defendant saw the employee and yelled at the employee and said that it was none of his business and ordered the employee to walk away. While the employee was on the phone with 911, he saw a knife being tossed out of the car window. The knife landed about a foot away from the parked car. Defendant got out of the car to retrieve the knife and his girlfriend, who remained inside the vehicle, drove away.
Defendant picked up the knife and approached the employee. Defendant held the knife with the blade pointed toward the employee as he walked closer. Defendant got in the employee’s face and told him it was none of his business. Defendant then lunged at the employee and said, “ ‘I’m going to stab you.’ ” As defendant extended his arm with the knife toward the employee’s rib cage, the employee told defendant to back away. Defendant eventually walked away. As he was walking away, defendant told the employee, “ ‘I know where you work. I know you guys take the trash out; just watch your back.’ ” The employee took defendant’s threat to mean that he would stab him if he saw him again.
A deputy sheriff was in the area when he received a dispatch call to investigate a disturbance involving a man with a knife. After getting a description of the suspect’s clothing, the deputy located defendant nearby and contacted him. The deputy conducted a patdown search of defendant. The deputy did not find any weapons on defendant, however, an eight-inch kitchen knife was recovered from some bushes about 15 feet away on a route defendant had passed.
III
DISCUSSION
A. Conduct Credits
Based upon the belief that defendant’s conviction for dissuading a witness by force or fear (§ 136.1, subd. (c)(1); count 2) was a violent felony, the trial court concluded that defendant was entitled to 15 percent of presentence credits under section 2933.1, and awarded defendant 111 days of actual custody credits and 16 days of conduct credits. Defendant contends this was error because section 136.1 is not a felony specified under section 2933.1, subdivision (a), for which the 15 percent custody credit limitation applies unless it is accompanied by evidence or a finding that the crime was gang related (see § 667.5, subd. (c)(20) [“Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22”]), and in this case, there was no evidence that defendant’s threats to the victim were gang related. The People correctly concede the error. We agree the trial court erred in limiting defendant’s conduct credits to 15 percent, and find defendant is entitled to 54 days of presentence conduct credits.
When a defendant is convicted of a violent felony as defined in section 667.5, subdivision (c), section 2933.1, subdivision (a), limits prison worktime credit to not more than 15 percent. Defendant was convicted of a serious felony. (§ 1192.7, subd. (c)(37) [“[I]ntimidation of victims or witnesses, in violation of Section 136.1”]; People v. Torres (2011) 198 Cal.App.4th 1131, 1151, fn. 14; People v. Neely (2004) 124 Cal.App.4th 1258, 1261, 1268.) However, defendant was not convicted of any violent felony. Because he was not convicted of a violent felony, defendant is not limited to 15 percent prison worktime credit under section 2933.1, subdivision (a).
Rather, defendant is entitled to the conduct credit ordinarily authorized under section 4019, which is a total of two days of conduct credit for every four-day period of presentence incarceration. (E.g., People v. Dieck (2009) 46 Cal.4th 934, 939; § 4019, subd. (f).) Thus, defendant is entitled to 54 days of conduct credits in addition to his 111 days of actual credits, for a total of 165 days of presentence custody credits.
B. Reimbursements for Court-Appointed Counsel and Probation Report
Defendant argues the trial court erred in ordering him to pay $200 for presentence probation costs (§ 1203.1b) and $500 for court-appointed counsel (§ 987.8) because the court did not have sufficient information as to his ability to pay. Recognizing that his challenges to the costs and fees imposed are forfeited by defense counsel’s failure to raise it at sentencing, defendant also asserts that he received ineffective assistance of counsel on account of this omission. The People respond defendant forfeited his challenge to the trial court’s order imposing probation and court-appointed costs by failing to object below, and that he fails to establish ineffective assistance of counsel.
On December 9, 2016, the probation department filed a report that indicated that at the time of sentencing, defendant was 34 years old, had some college education, and was in good health. The probation report also noted that defendant’s driver’s license was suspended or revoked, that he was homeless, and that he was obligated to pay $643 a month in child support. The probation report further stated that up until his arrest, defendant had been employed for the last three years by a company called RMC, worked as a laborer, and his income consisted of room and board. The probation department “respectfully recommended that the Court finds that the defendant does have the present ability to pay appointed counsel fees in the amount of $750.00,” and “to pay the cost of conducting the pre-sentence investigation and preparing the report pursuant to Section 1203.1b” in the amount of $665.
At the December 16, 2016 sentencing hearing, the trial court noted that it had reviewed the probation report filed on December 9, 2016. The court inquired whether both parties had been provided with a copy of the probation officer’s report filed with the court on December 9, 2016. Both attorneys answered “Yes.” In imposing the fees and costs, the court stated that defendant “was employed at the time of the commission of the offense, has been in jail ever since; once . . . released upon parole will be expected to seek and maintain gainful employment. [¶] So as far as appointed counsel fees, the Court will reduce the request by Probation of $750. The Court will reduce that to $500 for the services of the [c]ourt-appointed attorney. [¶] . . . [¶] With regard to investigation costs, the Court will reduce those from the requested $665 down to $200.” Defense counsel never raised an objection to the imposed costs and fees.
1. Imposition of Probation Costs
Preliminarily, both parties recognize that the forfeiture rule applies to the failure to object to the imposition of probation costs. The forfeiture rule does, indeed, apply to a defendant’s failure to challenge the court’s imposition of probation costs. (People v. Trujillo (2015) 60 Cal.4th 850, 858.) Because defendant asserts the omission amounted to ineffective assistance, we review the merits of the challenge.
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on a different ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on a different ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) A defendant claiming ineffective assistance of counsel has the burden of showing (1) his or her counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; People v. Mayfield (1993) 5 Cal.4th 142, 185; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To show prejudice, a defendant must show there is a reasonable probability that he or she would have received a more favorable result had his or her counsel’s performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 215.)
Section 1203.1b governs the imposition of probation costs on defendant. In pertinent part, it provides the probation officer shall determine the ability of the defendant to pay all or a portion of the reasonable cost of investigating and preparing the presentence probation report, taking into account any fines, assessments, and restitution the defendant must also pay. (§ 1203.1b, subd. (a).) The court orders the defendant to appear before the probation officer to inquire into the ability of the defendant to pay these costs. “The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount.” (§ 1203.1b, subd. (a).) The defendant must knowingly and intelligently waive the right to a court hearing on the issue, otherwise the probation officer must refer the matter to the court for the scheduling of a hearing, at which the court will determine the defendant’s ability to pay. (§ 1203.1b, subds. (a)-(b).)
Here, there is no indication in the record that defendant waived his right to a hearing on his ability to pay, and the court did not hold such a hearing. Despite defendant’s lack of a job, home, income, or assets, and defendant’s obligation to pay $643 a month in child support, defense counsel did not object to the imposition of probation costs or argue the court should determine his ability to pay. In addition to the probation costs the court ordered defendant to pay, it also ordered defendant to pay a substantial amount of restitution fines and court-appointed counsel fees. Under these circumstances, contrary to the People’s claim, we can see no rational tactical purpose for failing to object or request an ability-to-pay hearing. Defense counsel’s performance was deficient in this regard.
As to the second prong of the ineffective assistance of counsel claim, there is a reasonable probability that, but for defense counsel’s omission, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.) Defense counsel’s assertion of the right to a hearing would have resulted in the court hearing the matter. (§ 1203.1b, subd. (b).) According to section 1203.1b, in determining the defendants’ ability to pay, the court should consider the defendants’ current financial position, their reasonably discernible future financial position up to one year from the date of the hearing, the likelihood the defendants will be able to find a job within one year from the date of the hearing, and any other factors bearing on the defendants’ financial capability. (§ 1203.1b, subd. (e)(1)-(4).) It seems reasonably probable the court would have determined defendant did not have the ability to pay, given his current lack of any assets, the likelihood he will continue to lack any assets one year into his prison term, his previous homelessness, his child support debt, and the restitution payment for which he was also responsible. Both prongs of the ineffective assistance claim are therefore satisfied. The appropriate remedy is to remand the matter for the trial court to conduct a hearing on defendant’s ability to pay the probation costs.
The People argue defendant has not established prejudice based on the trial court’s comments “about [defendant’s] employment history and future ability to earn.” The People claim the court’s comments “made it clear it would not have stricken the $200 fee, which the court had already reduced from the probation officer’s recommendation of $665.” We disagree. The court recognized the need to reduce the fees from what the probation department had recommended, but speculated as to defendant’s ability to “seek and maintain gainful employment.” There is no indication in the record to support a conclusion that defendant would be able to “seek and maintain gainful employment,” in light of his previous homelessness, lack of a driver’s license, and lack of any special training. Although the probation report noted defendant had “some college,” it appears defendant was a 34-year-old laborer who lived at his place of employment. His employer reportedly compensated him only for his room and board, leaving him without a cash income. In addition, the probation report noted defendant had no assets and a $643 monthly child support obligation. Under the circumstances, there is a reasonable probability that, but for defense counsel’s omission, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694.)
2. Imposition of Court-Appointed Attorney’s Fees
As to the threshold matter, we discuss defense counsel’s failure to object to the appointed counsel fees imposed by the trial court. In People v. Aguilar (2015) 60 Cal.4th 862, 864, 867 and 868, our Supreme Court held the failure to object to the imposition of appointed counsel fees forfeits the issue on appeal. But the court expressly declined to decide whether the issue was forfeited “when the failure to raise the challenge at sentencing may be attributable to a conflict of interest on trial counsel’s part.” (Id. at p. 868, fn. 4.) At least one appellate court has held that a forfeiture cannot “be predicated on the failure of a[n] [appointed] trial attorney to challenge an order concerning his own fees” because “[i]t seems obvious . . . that when a defendant’s attorney stands before the court asking for an order taking money from the client and giving it to the attorney’s employer, the representation is burdened with a patent conflict of interest and cannot be relied upon to vicariously attribute counsel’s omissions to the client.” (People v. Viray (2005) 134 Cal.App.4th 1186, 1215, italics omitted.)
We need not decide whether a conflict of interest precludes forfeiture of the issue. Regardless of the forfeiture rule, defendant argues in the alternative that counsel was ineffective for failing to object, and we consider the merits of the claim in this context.
Before the court may impose attorney fees, defendants represented by the public defender or private appointed counsel are entitled to a noticed hearing to determine their “present ability” to pay all or a portion of the appointed counsel fees. (§ 987.8, subd. (b); People v. Prescott (2013) 213 Cal.App.4th 1473, 1476 (Prescott).) Defendant did not receive the noticed hearing on the issue to which he was entitled. Contrary to the People’s position, counsel was therefore deficient for failing to request an ability-to-pay hearing.
As with probation costs, counsel’s omission prejudiced defendant. The factors courts should consider in determining the defendants’ ability to pay are similar to the factors considered with respect to probation costs: (1) the defendants’ present financial position; (2) their reasonably discernible future financial position up to six months from the hearing, except that the defendants sentenced to state prison shall be determined to have no future financial ability to pay fees, absent unusual circumstances; (3) the likelihood that the defendants will be able to find a job within six months of the hearing; and (4) any other factors bearing on the defendants’ financial ability to pay fees. (§ 987.8, subd. (g)(2)(A)-(D).) The court must make an ability-to-pay determination only after affording defendant notice and a hearing. (§ 987.8, subd. (b).) The court must also make an express finding of unusual circumstances before ordering a state prisoner to reimburse his or her attorney. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.) In light of defendant’s lack of financial resources and his prison sentence, which carries a presumption that he does not have the ability to pay defense fees (Prescott, supra, 213 Cal.App.4th at p. 1476), it is reasonably probable the court would have found him unable to pay the appointed counsel fees.
C. Imposition of Restitution Fines
Defendant also claims the trial court abused its discretion when it imposed a $3,600 restitution fine under section 1202.4, subdivision (b), because the court failed to exercise its required discretion and applied the wrong formula in imposing the fine. Defendant further contends that his trial counsel rendered ineffective assistance by failing to object to the fine at the sentencing hearing. The People respond defendant forfeited this issue because he did not object to it at trial, and that even if defendant had preserved the issue, defendant’s claim lacks merit.
At the sentencing hearing, when the trial court was determining the restitution fine, the court inquired, “Does either party know where the restitution fine of $6,300 came from, that recommendation [of the probation officer]?” Both the prosecutor and defense counsel replied that they did not know. Defense counsel and the prosecutor then believed it might have been derived from a claim for victim restitution. The court corrected both counsel, and stated: “Well, this is a restitution fine. My understanding is $300 per count per year. That’s what it is. $300 times three counts times seven years as was recommended. [¶] Given the Court’s actual sentence [of four years], the Court orders a restitution fine in the amount of $3,600 [$300 x (three counts x four-year sentence)]; Parole Revocation Restitution Fine in the amount of $3,600.” The court deemed count 2, dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), the principal term and sentenced defendant to the midterm of three years on count 2, plus one year for the personal use of a knife enhancement (§ 12022, subd. (b)(1)) attached to count 2, for a total term of four years. Sentences on count 1 for assault with a deadly weapon (§ 245, subd. (a)(1)) and count 3 for making criminal threats (§ 422, subd. (a)) and the enhancement attached to count 3 were stayed pursuant to section 654.
Under section 1202.4, subdivision (b), the trial court must impose a restitution fine for every person convicted of a crime unless it finds “compelling and extraordinary” reasons for not doing so. Such statute vests the trial court with broad discretion to set restitution fines in any amount between $300 and $10,000, “commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1); People v. Urbano (2005) 128 Cal.App.4th 396, 405 (Urbano).) The trial court is not required to hold a hearing or state its findings for the record unless it declines to impose the fine. (§ 1202.4, subds. (b) & (d); People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380.)
In determining the amount of the restitution fine, “the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime.” (§ 1202.4, subd. (d).) Moreover, although not required to do so, the trial court may use the statutory formula of $300 “multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted,” to calculate the amount of the fine. (§ 1202.4, subd. (b)(2); Urbano, supra, 128 Cal.App.4th at p. 406.) The trial court, however, may not include in the permissive statutory formula any count for which the sentence is stayed under section 654. (People v. Le (2006) 136 Cal.App.4th 925, 932-933 (Le).)
With regard to parole revocation fines, “[i]n every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount.” (§ 1202.45, subd. (a).)
The sentencing court has wide discretion in setting the amount of the restitution fine and is not required to make express findings or state its reasons on the record. (Urbano, supra, 128 Cal.App.4th at pp. 405-406; People v. Gangemi (1993) 13 Cal.App.4th 1790, 1798 (Gangemi).) The trial court’s determination is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Vasquez (2010) 190 Cal.App.4th 1126, 1136.) A trial court generally abuses its discretion when it rules in an arbitrary, capricious, or absurd manner, or outside the bounds of reason of the particular law being applied, resulting in a miscarriage of justice. (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) An abuse of discretion also occurs when the factual findings critical to the decision are not supported by the record. (People v. Cluff (2001) 87 Cal.App.4th 991, 998; People v. Wyman (1985) 166 Cal.App.3d 810, 815-816.)
We note the federal and state constitutions prohibit the imposition of excessive fines. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) “The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations] . . . [A] punitive [fine] violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” (United States v. Bajakajian (1998) 524 U.S. 321, 334; see Urbano, supra, 128 Cal.App.4th at p. 406.) Under the California Constitution, “the amount of the fine must find support in the record.” (Gangemi, supra, 13 Cal.App.4th at p. 1798.) “[W]hen deciding the amount of the fine to be imposed, the trial court may properly consider any relevant factors, including those aggravating and mitigating factors used in imposing a prison term,” as well as those items specified in section 1202.4. (Gangemi, at p. 1799.)
Here, although defendant did not object to the imposition of the restitution fine and the parole revocation fine, he does not forfeit his challenge on appeal. “When a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction and imposes an unauthorized sentence that can be challenged for the first time on appeal.” (People v. Soto (2016) 245 Cal.App.4th 1219, 1234 (Soto), citing Le, supra, 136 Cal.App.4th at p. 931.) Restitution fines are punishment (People v. Hanson (2000) 23 Cal.4th 355, 362; Soto, at p. 1235) and, therefore, section 654’s bar against multiple punishment applies to restitution fines (Soto, at p. 1235; People v. Sencion (2012) 211 Cal.App.4th 480, 483 (Sencion)). Hence, when a trial court imposes a restitution fine in a case, the fine may not be based on a count stayed under section 654. (Soto, at p. 1235; Sencion, at p. 483; accord, People v. Carlson (2011) 200 Cal.App.4th 695, 710.) Furthermore, the Court of Appeal in Le concluded that the calculation of a restitution fine in accordance with the statutory formula based on the improper consecutive sentence violated section 654, and trial counsel’s failure to object to the improper sentence and the resulting excessive fine constituted ineffective assistance of counsel. (Le, at pp. 932-936.)
The People agree that a court cannot base restitution fines on counts that were stayed pursuant to section 654, but argue because defendant did not object on this basis below, there is no way to know if the court would have reduced the fine if this was brought to the court’s attention or if it would have continued to impose the $3,600 fine as it did here. The People appear to claim that even if defendant had objected, defendant suffered no prejudice as the court considered the seriousness and the gravity of the offense in imposing the $3,600 restitution fines and the amount imposed was within the statutory range. We reject the People’s prejudice analysis.
As previously noted, restitution fines are punishments to which section 654 applies and “[w]hen a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction . . . .” (Soto, supra, 245 Cal.App.4th at p. 1234, citing Le, supra, 136 Cal.App.4th at p. 931.) “ ‘An unauthorized sentence is just that. It is not subject to a harmless error analysis. Nor does it ripen into a sentence authorized by law with the passage of time.’ ” (Soto, at p. 1235, quoting In re Birdwell (1996) 50 Cal.App.4th 926, 930.) Thus, imposition of a restitution fine in this case based on the two stayed counts violates section 654 and we cannot resolve it through a prejudice analysis. (See Soto, at p. 1235.)
The People further contend that if this court determines the trial court failed to exercise the required discretion in setting the amount of the fine, then a remand is appropriate so that the court can exercise its discretion and impose the appropriate amount. In his reply brief, defendant does not oppose a remand, and requests that “on remand the court should be directed to exercise its discretion in setting a restitution fine that was not based upon counts stayed by section 654.”
Although in this case it appears the court imposed the $3,600 restitution fine based on the formula set forth in section 1202.4, subdivision (d) ($300 per count per year) and included the two stayed counts, we will remand the matter and direct the trial court to impose a restitution and parole revocation fine consistent with this opinion. (Compare Soto, supra, 245 Cal.App.4th at p. 1236 [striking unauthorized $150 restitution fine]; Sencion, supra, 211 Cal.App.4th at pp. 482-483 [$400 of the restitution fine attributed to stayed counts]; see People v. Tarris (2009) 180 Cal.App.4th 612, 627-628 [trial court specified restitution breakdown in minute order and appellate court stayed the restitution amounts attributed to two counts stayed under section 654]; Le, supra, 136 Cal.App.4th at pp. 935-936 [trial court followed optional statutory formula, allowing appellate court to omit stayed count and recalculate fine on review].) Remand is appropriate since the parties agree to a remand and the matter is being remanded for other purposes in any case.
D. Correction of Abstract of Judgment and Minute Order
Although not separately raised as an argument by either party, we note that the trial court’s corrected minute order of the December 16, 2016 sentencing hearing and the abstract of judgment erroneously indicate the court imposed a concurrent three-year term on count 1 for assault with a deadly weapon. The trial court’s oral pronouncement of judgment clearly indicates the sentence on count 1 was stayed pursuant to section 654.
The court’s oral pronouncement of judgment controls. (See People v. Jones (2012) 54 Cal.4th 1, 89.) Further, the abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect. (§ 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accuracy is essential in this document, and we have the authority to correct clerical errors in it at any time. (Id. at pp. 185-187.)
Accordingly, following a hearing upon remand to determine the probation costs, the court-appointed fees, and the restitution fines, the clerk of the superior court is directed to amend the abstract of judgment to reflect the sentence on count 1 was stayed pursuant to section 654.
IV
DISPOSITION
The judgment is modified to reflect an award of presentence conduct credit of 54 days in addition to his 111 days of actual credits, for a total of 165 days of presentence custody credits, and the matter is remanded for a hearing in accordance with the views expressed herein. The judgment is reversed as to the $500 appointed counsel fees order, the $200 probation costs order, and the $3,600 restitution fine and $3,600 parole revocation fine order. On remand, the court shall hold a hearing on defendant’s ability to pay these fees and costs. Additionally, the clerk of the superior court is directed to amend the abstract of judgment to reflect that the sentence on count 1 was stayed pursuant to section 654. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.
We concur:



SLOUGH
J.



FIELDS
J.