P. v. Strelz









Filed 3/24/17 P. v. Strelz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

BRADY LEE STRELZ,

Defendant and Appellant.



C082025

(Super. Ct. No. 15F03419)




Appointed counsel for defendant Brady Lee Strelz asked 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 have found no arguable error that would result in a disposition more favorable to defendant, but we will direct the trial court to correct the amended abstract of judgment.
I
Defendant’s uncle lived near defendant. On the morning of June 8, 2015, the uncle was walking with his son when defendant approached them. Defendant seemed disoriented, mumbled about snakes in his apartment and blamed the uncle for putting them there.
Defendant approached the uncle with a knife. The uncle held up his cane in an effort to defend himself, but defendant grabbed the cane and hit the uncle on the head with it. The uncle fell to the ground and told his son to run.
Two neighbors heard the son screaming and saw defendant standing over the uncle. One saw defendant making stabbing motions toward the uncle and the other saw defendant holding a large knife and pointing it at the uncle.
Following defendant’s arrest, law enforcement searched his home and found a small plastic baggie in his bathroom that contained 3.89 grams of methamphetamine, a usable amount.
A jury found defendant guilty of assault with a deadly weapon (the knife) (Pen. Code, § 245, subd. (a)(1)),[1] assault with a deadly weapon (the cane) (§ 245, subd. (a)(1)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant admitted a prior serious felony conviction and a prior prison term.
The trial court sentenced defendant to an aggregate term of 12 years in state prison. The trial court also imposed various fines and fees, including a $350 restitution fine (§ 1202.4, subd. (b)) and a $350 parole revocation fine (§ 1202.45).
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to 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 the opening brief. More than 30 days elapsed and we received no communication from defendant.
Based on our review of the record, we note a discrepancy between the trial court’s oral pronouncement of sentence and the amended abstract of judgment. At sentencing, the trial court imposed a $350 restitution fine and a $350 parole revocation fine. But the amended abstract of judgment indicates a $300 restitution fine and a $300 parole revocation fine. The abstract of judgment may not modify the judgment (People v. Zackery (2007) 147 Cal.App.4th 380, 385, 389), and where there is a discrepancy between the oral pronouncement of judgment and the amended abstract of judgment, the oral pronouncement controls (People v. Mitchell (2001) 26 Cal.4th 181, 185-186). We will direct the trial court to correct the amended abstract of judgment.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the amended abstract of judgment to reflect a $350 restitution fine and a $350 parole revocation fine, and to forward a certified copy to the Department of Corrections and Rehabilitation.



/S/
MAURO, J.



We concur:



/S/
NICHOLSON, Acting P. J.



/S/
HOCH, J.


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[1] Undesignated statutory references are to the Penal Code.