P. v. Woods
Filed 5/20/13 P. v. Woods 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
TINA MARIE WOODS,
Defendant and Appellant.
C072025
(Super. Ct. No.
CRF12896)
Defendant
Tina Marie Woods pleaded no contest to second
degree burglary and possessing
methamphetamine. The abstract of
judgment reflects a drug program fee, plus assessments, totaling $600.
On appeal,
defendant asks that we order the abstract of judgment corrected to accurately
reflect the sentence pronounced by the court.
The People oppose the request and seek remand. We shall order correction of the abstract of
judgment.
Defendant
entered an auto parts store with the intent to commit theft and possessed methamphetamine. She entered a negotiated plea of no contest
to charges of second degree burglary and possession of methamphetamine, and
admitted a prior conviction.
The
presentence probation report did not recommend that the trial court order a
drug program fee, and the trial court did not orally impose such a fee at
sentencing.
The abstract of judgment, however, contains a $150 drug
program fee (Health & Saf. Code, § 11372.7) and its attendant penalties,
assessments and surcharges, which total $600.
Where the
abstract of judgment differs from the court’s oral pronouncements, the oral
pronouncement of judgment controls. (
1059, 1070; People v. Mitchell (2001)
26 Cal.4th 181, 185 (Mitchell).)
“The clerk cannot supplement the judgment the court actually pronounced by
adding a provision to the minute order [or] the abstract of judgment. [Citation.]â€
(People v. Zackery (2007)
147 Cal.App.4th 380, 387-388.)
Errors in
the abstract of judgment may be corrected by this court on appeal. (Mitchell,
supra, 26 Cal.4th at p. 185; People
v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.) Accordingly, we shall order the abstract of
judgment corrected to delete all references to the $150 drug program fee.
Although
the People seek remand, because imposition of the drug program fee is based on
defendant’s ability to pay (Health & Saf. Code, § 11372.7, subd. (b)),
on a silent record, as here, we presume the trial court found defendant did not
have the ability to pay the fee. (
191 Cal.App.4th 859, 864.)
The
judgment is affirmed. The trial court is
directed to prepare a corrected abstract of judgment deleting the Health and
Safety Code section 11372.7 drug program fee and each of its attendant
assessments, fees and surcharges, and to forward a certified copy of the
corrected abstract of judgment to the Department
of Corrections and Rehabilitation.
DUARTE , J.
We concur:
BLEASE , Acting P.
J.
MURRAY , J.
