Filed 9/11/17 P. v. Samuel 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NOT TO BE PUBLISHED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 Thomas Samuel has filed an opening brief setting forth the facts of the case and asking us 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 affirm the judgment.

FACTS AND PROCEEDINGS

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.)

Between June 2014 and January 2016, defendant befriended an elderly man in his eighties, and stole $50,000 from him. Defendant pretended to be a paralegal and threatened the man was at risk of going to jail if he did not pay defendant the money.

An amended complaint charged defendant with extorting money and other property from another (Pen. Code, § 520—count one);[1] two counts of embezzling property having a value in excess of $950 from the same elderly victim (§ 368, subd. (d)—counts two & five); two counts of unlawfully taking money and personal property belonging to the same victim and having a value in excess of $950 (§ 487, subd. (a)—counts three & four); and unlawfully identifying himself as a paralegal (Bus. & Prof. Code, § 6452, subd. (a)—count 6). The complaint also alleged defendant had a prior serious felony conviction, a Texas conviction for attempted murder (§§ 667, subds. (b)-(i), 1170.12).

Defendant pleaded no contest to all the charges, in exchange for a maximum sentence of three years in state prison. The trial court struck the prior conviction allegation and sentenced defendant in accordance with the plea, to an aggregate term of three years in state prison. The trial court gave defendant 564 days of presentence custody credit. The trial court also ordered defendant to pay a $300 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed an identical parole revocation fine (§ 1202.45). The trial court denied defendant’s request for a certificate of probable cause (§ 1237.5).

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts and procedural history of the case and requesting us 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.

We have, however, found two errors that require modification of the judgment. The abstract of judgment reflects imposition of a mandatory $40 court operations assessment (§ 1465.8), and a mandatory $30 criminal conviction assessment (Gov. Code, § 70373). However, these fees were not part of the oral pronouncement of judgment. The oral pronouncement is the actual rendition of judgment; the abstract of judgment cannot add anything substantive to it. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We are, however, able to modify the judgment on appeal with respect to mandatory impositions. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.)

DISPOSITION

The judgment is modified to incorporate the mandatory court operations and criminal conviction assessments. As modified, the judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

HULL , J.

MAURO , J.