Filed 10/29/14 P. v. Davis 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C075669

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F04546)

         v.

MICHAEL DAVIS,

                   Defendant and Appellant.




         Defendant Michael Davis was convicted following a jury trial of possession of
cocaine base for sale and received a split sentence consisting of two years in the county
jail and 12 years on mandatory supervision. The trial court orally imposed certain
conditions of mandatory supervision at the sentencing hearing. The trial court’s minute
order, which incorporates the probation report, sets forth additional conditions that were
not orally imposed at sentencing. On appeal, defendant contends the minute order must
be modified to eliminate the new conditions. The People urge us to remand for



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resentencing to allow the trial court to clarify its order. We shall adopt the People’s
proposed solution and remand for resentencing.
                                     BACKGROUND
       We dispense with a recitation of the facts surrounding defendant’s crime as they
are not relevant to the issue raised on appeal.
       Defendant was charged with possession of cocaine base for sale. The information
also alleged two prior drug convictions and four prior prison terms.
       Defendant was convicted following a jury trial of possession of cocaine base for
sale on October 22, 2013. He waived his right to a jury trial on the prior conviction
allegations.
       On December 5, 2013, the trial court found true defendant’s two prior drug
convictions and three of his four prison priors. The trial court then sentenced defendant
to a term of 14 years based on a five-year upper term on the underlying offense, two
three-year terms on the prior drug convictions, and three one-year terms for the prison
priors. The trial court imposed a split sentence, with two years in the county jail and the
remaining 12 years on mandatory supervision.
       During the sentencing hearing, the trial court described the conditions of
mandatory supervision as follows: “The conditions of supervision are that Mr. Davis
obey all laws. Your person, property, and vehicle are subject to search. You must follow
the instructions of the probation department, report to the probation department within
two business days of your release from jail, and you are not to knowingly possess or
knowingly associate with anyone who is possessing or using any controlled substance.”
The trial court rejected the probation department’s recommendation that defendant
complete an AIDS education program and ordered him to register as a drug offender.
The trial court also notified defendant that his felony conviction prohibited him from
possessing firearms or ammunition. The minute order from the sentencing hearing
provides in pertinent part: “THE CONCLUDING TERM 12Y SHALL BE ON

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MANDATORY SUPERVISION OF THE PROB DEPT. UNDER T&C IN RPT PGS 17-
21; AS MOD.”
      Pages 17 through 21 of the probation department’s report sets forth numerous
conditions, some of which are circled and some are not. Each of the circled conditions
was orally imposed by the trial court during the sentencing hearing. These conditions
include the requirement that defendant submit to a search of himself or his property
without a warrant, not use or possess any controlled substances, not be any place where
he knows illegal controlled substances are present, not associate with anyone he knows
illegally possesses controlled substances, and register as a drug offender. Defendant does
not challenge any of the foregoing conditions.
      The probation report also sets forth several conditions that are not circled but were
orally imposed at the sentencing hearing. These conditions include the requirement that
defendant obey all laws, follow the instructions of the probation department, and not be
in possession of firearms or ammunition. Defendant does not challenge the imposition of
these conditions, but suggests that we modify the minute order to clarify that they were
actually imposed at sentencing.
      The probation report also sets forth several conditions that were neither circled nor
orally imposed at the sentencing hearing. These conditions include the requirement that
defendant seek and obtain professional counseling or treatment, the requirement that
defendant pay a mandatory laboratory fee fine in the amount of $50, the requirement that
defendant participate in a drug/alcohol intervention program, the requirement that
defendant participate in a treatment intervention program addressing criminal associates,
the requirement that defendant participate in a treatment intervention program addressing
criminal thinking, the requirement that defendant seek and maintain regular employment,




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the prohibition on leaving the state without permission, the requirement that defendant
report to the division of adult probation as directed, the requirement that defendant allow
probation officers to visit his home and place of employment, and the requirement that
defendant inform probation officers of dogs and other pets with potential to cause harm in
his residence. Defendant contends the foregoing conditions were not validly imposed
and should be stricken from the trial court’s minute order.
       The probation report also contains a condition that defendant complete an AIDS
education program, which has been stricken by interlineation, consistent with the trial
court’s oral pronouncement. Neither party challenges the trial court’s decision to strike
the AIDS education program, but we mention the issue for reasons that will become
apparent later in this opinion.
       Defendant filed a timely notice of appeal.
                                      DISCUSSION
       The parties agree that the conditions of mandatory supervision that were orally
imposed by the trial court at the sentencing hearing are not the same as the conditions set
forth in the minute order and probation report. We have reviewed the record and concur.
The parties disagree as to how the inconsistency should be resolved. Relying on the
general rule that any conflict between a court’s oral pronouncement of judgment and a
clerk’s minutes must be resolved in favor of the oral pronouncement, defendant urges us
to strike conditions that were not orally imposed at sentencing from the minute order.
The People, for their part, suggest that we remand for resentencing to allow the trial court
to clarify its order. We agree with the People’s proposed solution.
       The general rule is that where the oral pronouncement conflicts with the clerk’s
minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381,
384, fn. 2.) This is particularly true where the trial court imposes judgment and sentence
in a felony case since, with certain exceptions, “ ‘judgment and sentence in felony cases
may be imposed only in the presence of the accused.’ ” (People v. Zackery (2007)

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147 Cal.App.4th 380, 386-387, quoting In re Levi (1952) 39 Cal.2d 41, 45; see also Pen.
Code, § 1193, subd. (a).)1
       Of course, the trial court has inherent power to correct clerical errors in the minute
order and abstract of judgment, i.e., those errors “inadvertently made” by the clerk,
counsel, or by the court itself, on its own motion or on the application of the parties.
(People v. Jack (1989) 213 Cal.App.3d 913, 915-916 and cases cited therein.) But
judicial error -- error “made advertently in the exercise of judgment or discretion” -- can
only be corrected by appropriate statutory procedure. (Id. at p. 915.) Applying these
general concepts, defendant argues that the discrepancies between the trial court’s oral
pronouncement and minute order are judicial errors that cannot be corrected by
amendment. We disagree.
       “The difference between judicial and clerical error rests not upon the party
committing the error, but rather on whether it was the deliberate result of judicial
reasoning and determination. The distinction between clerical error and judicial error is



1      We assume without deciding that the oral pronouncement of judgment rule applies
to an order imposing conditions of mandatory supervision. As noted, the rule arises from
the requirement that a felony judgment be imposed in the defendant’s presence. (Pen.
Code, § 1193, subd. (a); People v. Zackery, supra, 147 Cal.App.4th at pp. 386-387.) The
rule does not apply to an order of probation, which is not required to occur in the
defendant’s presence. (People v. Thrash (1978) 80 Cal.App.3d 898, 901-902 [conditions
of probation “need not be spelled out in great detail in court as long as the defendant
knows what they are”].) However, mandatory supervision and probation are not the
same. Although mandatory supervision is monitored by county probation officers “in
accordance with the terms, conditions, and procedures generally applicable to persons
placed on probation” (Pen. Code, § 1170, subd. (h)(5)(B)(i)), “this does not mean placing
a defendant on mandatory supervision is the equivalent of granting probation or giving a
conditional sentence. Indeed, [Penal Code] section 1170, subdivision (h), comes into
play only after probation has been denied.” (People v. Fandinola (2013)
221 Cal.App.4th 1415, 1422.) Consequently, we cannot rely on Penal Code
section 1203, subdivision (b)(3) and Thrash to conclude that the oral pronouncement of
judgment rule does not apply. We need not resolve the question whether the rule applies
to an order imposing conditions of mandatory supervision to decide the present case.

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whether the error was made in rendering the judgment, or in recording the judgment
rendered.” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228,
1238; see also In re Candelario (1970) 3 Cal.3d 702, 705.) Clerical error includes
“inadvertent errors made by the court ‘which cannot reasonably be attributed to the
exercise of judicial consideration or discretion.’ ” (Conservatorship of Tobias (1989)
208 Cal.App.3d 1031, 1034; Bowden v. Green (1982) 128 Cal.App.3d 65, 71.) In
contrast, “judicial error is the deliberate result of judicial reasoning and determination.”
(Conservatorship of Tobias, at p. 1035.) “ ‘The test is simply whether the challenged
judgment was made or entered inadvertently (clerical error) or advertently (judicial
error).’ ” (Bowden, at p. 71.)
       We cannot conclude from the present record that the omission of conditions from
the judgment was the “deliberate result of judicial reasoning and determination.”
(Conservatorship of Tobias, supra, 208 Cal.App.3d at p. 1035.) When the trial court
decided to exclude the AIDS education condition from the judgment, the court did so
clearly and unambiguously on the record. By contrast, there is nothing in the record to
suggest that the trial court intended to exclude any of the probation department’s other
proposed conditions of supervision. Indeed, the court failed to impose the lab fee, which
is mandatory. (People v. Taylor (2004) 118 Cal.App.4th 454, 456; People v. Turner
(2002) 96 Cal.App.4th 1409, 1413.) It had no discretion to decline to impose this fee.
Thus, the court’s failure to impose this fee is a further indication that the failure to orally
impose the other conditions may have been the product of oversight and not an exercise
of discretion. Under the circumstances, we cannot conclude that the trial court’s
omission of conditions from the judgment constitutes judicial error.




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       In the absence of any indication that the omission was intentional, we remand for
resentencing to give the trial court an opportunity to clarify its order. We find support for
this result in People v. Prater (1977) 71 Cal.App.3d 695, 702-703, in which the trial court
sentenced the defendant to the term prescribed by law without mentioning a weapon use
allegation (Pen. Code, § 12022.5), and later signed an abstract of judgment showing the
imposition of the term with the weapon use enhancement. The Court of Appeal rejected
defendant’s invitation to strike the weapon use enhancement from the abstract of
judgment, stating: “we do not believe a reasonable inference can be made that the trial
court intended an act of leniency when it failed to mention [Penal Code] section 12022.5
at the time of sentencing. Rather, a more logical explanation is that the omission was
simply the result of judicial oversight.” (Prater, at p. 703.) Under the circumstances, the
Court of Appeal concluded: “We believe the best approach and one in keeping with the
ABA standards for the administration of criminal justice is to remove any possible
uncertainty caused by the trial court’s failure to mention [Penal Code] section 12022.5 at
the oral pronouncement of judgment by remanding the matter for resentencing. By this
procedure, we will end with finality any speculation whether the trial court intended to
impose the additional punishment provided by [Penal Code] section 12022.5.” (Prater,
at p. 703.)
       Likewise, in the present case, we suspect that the trial court’s failure to impose the
challenged conditions at sentencing was more likely the result of judicial oversight than
“ ‘deliberately exercised judicial discretion.’ ” (In re Candelario, supra, 3 Cal.3d at
p. 705, citing In re Wimbs (1966) 65 Cal.2d 490, 498.) However, in order to remove any
possible uncertainty caused by the trial court’s failure to mention the challenged
conditions at sentencing, we shall remand this matter to the trial court for resentencing on
this limited issue. (People v. Prater, supra, 71 Cal.App.3d at pp. 703, 705.)




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                                      DISPOSITION
       The matter is remanded to the trial court for resentencing. In addition to clarifying
its sentence, the court is directed to impose the mandatory lab fee pursuant to Health and
Safety Code section 11372.5, subdivision (a) and the applicable penalty assessments. In
all other respects, the judgment is affirmed.



                                                        ROBIE                 , Acting P. J.



We concur:



      MURRAY                , J.



      DUARTE                , J.




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