P. v. Smith

Filed 10/30/06 P. v. Smith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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In three consolidated cases, defendant Bruce James Jacob Smith pleaded guilty to failure to appear on a felony charge (Pen. Code, § 1320, subd. (b); further undesignated statutory references are to the Penal Code) and two counts of driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). In exchange, seven related counts, related enhancements and five unrelated cases were dismissed. Defendant was sentenced to state prison for four years four months; awarded 19 days of custody credit and eight days of conduct credit; and ordered to pay a $600 restitution fine (§ 1202.4, subd. (b)), a $600 restitution fine suspended unless parole is revoked (§ 1202.45), and a $20 court security fee (§ 1465.8, subd. (a)(1)) “as to each count.”^[1] His request for a certificate of probable cause was denied.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)

Defendant filed a supplemental brief raising, as best we understand him, the following contentions of legal error: (1) he had no malice and no criminal intent, (2) he was told that if he did not plead guilty that day he would go to prison for 10 years, (3) he was “bullied into” entering the plea, (4) he was told his appointed counsel had no time for his case, (5) he believed three years was the low term for failure to appear, (6) he did not know he could obtain substitute counsel, and (7) his appointed counsel did not provide him “the best possible” defense. These contentions, if successful, would require withdrawal of defendant’s plea and are barred by the denial of a certificate of probable cause. (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

Our review of the record discloses a minor error on the abstract of judgment. Under line 11 (“Other orders”), the abstract states: “THE COURT ORDERS THAT THE DEFENDANT PAY 9a and 9b [the unstayed and stayed $600.00 restitution fines] IN EACH CASE,” thus purporting to require $1,800 unstayed and stayed restitution fines for the three superior court cases.

However, the trial court’s oral pronouncement of judgment contains no such order. Rather, the court orally imposed only the court security fee “as to each count,” or once in each of the three cases. (See fn. 1, ante.) The abstract of judgment cannot add to or modify the spoken judgment which it purports to digest or summarize. (People v. Mesa (1975) 14 Cal.3d 466, 471.) We shall order the trial court to correct the abstracts of judgment to reflect one $600 restitution fine and one $600 stayed restitution fine.

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 prepare an amended abstract of judgment deleting the language ordering defendant to pay 9A and 9B in each case, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

NICHOLSON , Acting P.J.

We concur:

BUTZ , J.

CANTIL-SAKAUYE , J.

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^[1] The trial court mistakenly referred to the $20 court security fee as a “criminal lab fee.” Defendant’s offenses did not make him eligible for a lab fee, which would have been in the amount of $50, not $20.