Filed 3/21/18 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID VAUGHN SMITH,

Defendant and Appellant.
C084547

(Super. Ct. No. CRF-16-5392)






Appointed counsel for defendant David Vaughn Smith filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we have found no arguable error that would result in a disposition more favorable to defendant. However, we have found sentencing errors and clerical errors that must be corrected. We will modify the judgment to correct the sentencing errors and direct the trial court to prepare a corrected abstract of judgment and to correct its internal records. As modified, the judgment is affirmed.
We provide the following brief description of the factual and procedural background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On September 17, 2016, Officer Cameron Simpson of the West Sacramento Police Department was dispatched to Memorial Park. Upon his arrival at the park, Officer Simpson spoke with defendant. Defendant explained that a group of parents had taken his cell phone and refused to return it to him because they believed he had taken inappropriate pictures. Defendant admitted he had taken pictures of children playing baseball. He also admitted that he did not know anybody at the park.
Officer Simpson subsequently spoke with Sherice Williams. She explained that her husband and another man took defendant’s cell phone after she saw defendant taking pictures of “little kids.” Williams told Officer Simpson that defendant’s cell phone contained inappropriate pictures of young boys in swimsuits. She then held the phone up and showed him the pictures.
When Officer Simpson looked at defendant’s cell phone, he saw a picture of two kids in swimsuits and a picture of two naked people. He enlarged the picture of the two naked people and saw what appeared to be a naked adult performing oral sex on a naked minor. Williams showed the picture of the two naked people to another officer, who confirmed that the picture was “illegal.” Defendant was arrested and taken into custody. He appeared in court on the same day and was released on supervised own recognizance.
Two days later, Detective Nick Barreiro of the West Sacramento Police Department assisted with the execution of a search warrant at defendant’s residence. During the search, Detective Barreiro found a cell phone that belonged to defendant.
Following the search, Peter Martin, a high-tech crime investigator with the Yolo County District Attorney’s Office, conducted a forensic examination of defendant’s cell phones. According to Martin, the cell phone defendant possessed at the park contained one image of child pornography (the photograph of the two naked people) and 19 other images of naked children that might be child pornography. The cell phone found at defendant’s residence contained 11 images of naked boys and girls that Martin believed were child pornography and 54 similar images that he believed might be child pornography. Martin also located numerous other images that he considered to be child erotica—pictures of young children posed in sexually provocative positions but wearing some clothes.
Defendant was charged by information in case No. CRF-16-5392 with two counts of possessing obscene matter depicting a minor engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).) It was also alleged that defendant was out of custody on bail or his own recognizance at the time count 2 was committed. (§ 12022.1, subd. (b).)
Pursuant to a negotiated disposition, defendant agreed to plead no contest to count one and register as a sex offender in exchange for a stipulated low-term sentence of 16 months and the dismissal of count 2 and a separate case (No. CR-16-7445). Following his no contest plea, the trial court sentenced defendant to 16 months in state prison. The court also imposed various fines and fees.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. However, we have found sentencing errors and clerical errors that must be corrected.
“[I]t is well established that the appellate court can correct a legal error resulting in an unauthorized sentence . . . at any time.” (People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13; see People v. Scott (1994) 9 Cal.4th 331, 354 [sentence is unauthorized if “it could not lawfully be imposed under any circumstance in the particular case”].) In addition, courts may correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.” (Id. at pp. 387-388.) Discrepancies between the oral pronouncement of judgment and the minute order or abstract of judgment are presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
Here, in pronouncing judgment, the trial court orally imposed a $300 “restitution fine” under section 1202.44. However, because defendant was sentenced to state prison, imposition of a probation revocation restitution fine under section 1202.44 was unauthorized. Since the record clearly reflects that the trial court intended to impose a $300 restitution fine under section 1202.4, subdivision (b), we will modify the judgment accordingly. We will also modify the judgment to reflect that defendant was entitled to 344 days of custody credits, not 374 days as awarded by the trial court at sentencing. Finally, we will modify the judgment to reflect that the trial court ordered defendant to register as a sex offender. In relevant part, section 290, subdivision (b) provides that “[e]very person described in subdivision (c), for the rest of his or her life . . . , shall be required to register” with the appropriate law enforcement authorities. Under section 290, subdivision (c), any person who has been convicted of violating section 311.11 is subject to the registration requirement. Thus, the trial court was required to order defendant to register as a sex offender. The court’s failure to do so constituted an unauthorized sentence that we must correct.
Because the abstract of judgment already reflects the foregoing modifications, it need not be amended in this regard. However, we have found three errors in the abstract of judgment that require correction. First, the abstract of judgment reflects that defendant shall participate in a substance abuse counseling/education program pursuant to section 1203.096. However, the trial court did not orally impose such a requirement. Accordingly, this requirement must be stricken as not comporting with the oral pronouncement of judgment. Second, the abstract of judgment fails to reflect that the trial court imposed a 10 percent administrative fee in connection with the restitution fine. (§ 1202.4, subd. (l).) Third, the abstract of judgment fails to reflect that the trial court imposed a $100 base fine, plus $310 in penalty assessments. We will order the abstract of judgment corrected accordingly, and also direct the trial court to correct any errors contained in its internal records, including the sentencing minute order. (People v. Mitchell, supra, 26 Cal.4th at p. 185.) In correcting the abstract of judgment, the trial court shall identify the amount and statutory grounds for each fine, fee, and penalty assessment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) This itemization allows the Department of Corrections and Rehabilitation to “fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.” (Ibid.)
DISPOSITION
The judgment is modified and corrected as detailed above. As modified and corrected, the judgment is affirmed. The trial court shall prepare a corrected abstract of judgment consistent with this opinion and forward a certified copy to the Department of Corrections and Rehabilitation. The trial court shall also correct its internal records to ensure that they accurately reflect the judgment.



BUTZ , Acting P. J.



We concur:



HOCH , J.



RENNER , J.