Filed 5/22/14 P. v. Nieto 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
                                                            ----

                                                                                             C073236
THE PEOPLE,
                                                                                 (Super. Ct. No. 11F03865)
                   Plaintiff and Respondent,

         v.

MIRTALA NIETO,

                   Defendant and Appellant.




         A jury found defendant Mirtala Nieto guilty of possessing methamphetamine for
sale. (Health & Saf. Code, § 11378.) Pursuant to Penal Code section 1170, subdivision
(h)(1),1 the court sentenced her to a total term of three years: it ordered her to serve one
year in county jail and thereafter two years on supervised release, in accordance with
conditions applicable to persons on probation. (§ 1170, subd. (h)(5)(B)(i).)2



1        Undesignated statutory references are to the Penal Code.
2     Under the terms of the recent realignment legislation, the courts are permitted to
sentence certain nonviolent felons to county jail rather than state prison. The courts also

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       On appeal, defendant claims the court improperly imposed a probation revocation
restitution fine pursuant to section 1202.44, and the judgment should be corrected to
reflect accurately the court declined to impose two nonmandatory fines. The People
concede both points.
       We conclude the abstract of judgment must be corrected to reflect the revocation
restitution fine was imposed pursuant to section 1202.45, and to strike imposition of the
drug treatment and drug program fines.
                                      DISCUSSION3
                                              I
            The Trial Court Properly Imposed a Second $400 Restitution Fine
       At the sentencing hearing, the court sentenced defendant to three years in state
prison but, pursuant to section 1170, subdivision (h)(5)(B)(i), ordered defendant to serve
one year in county jail and then two years on supervised release. The court asked
defendant if she had reviewed all of the “recommended proposed terms of probation in
the probation report,” and defendant indicated she understood the terms and did not need
the court to read them to her. The court nonetheless reiterated to defendant that she
would be required to participate in a drug program, could not use or possess drugs or
associate with persons using or possessing drugs, would be subject to search, be required
to register, may not possess a firearm or other deadly weapon, must seek and maintain
regular employment, may not leave the state without permission of the probation
department and must pay various fines and fees, including a restitution fine of $400
pursuant to section 1202.4, subdivision (b), and a “further restitution fine of [$]400



have discretion to have the convicted person serve part of the sentence under supervised
release. (See § 1170, subd. (h)(5)(B).)
3      Because the facts of defendant’s offense are not relevant to the disposition of this
appeal, we omit our usual factual summary.

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pursuant to [section] 1202.44. That is stayed pending your successful completion of
probation.”4 The court asked defendant if she understood that if she failed to comply
with any of these terms, she would be subject to revocation and incarceration for the
balance of the two-year supervised release period; defendant said yes.
       The revocation restitution fine was authorized by section 1202.45 and should have
been imposed pursuant to that section, not pursuant to section 1202.44.
       Defendant was sentenced on February 1, 2013. Effective January 1, 2013, section
1202.45 was amended to add language virtually identical to that of section 1202.44
except for the substitution of the words “postrelease community supervision” or
“mandatory supervision” for the word “probation” wherever it appears. (Stats. 2012, ch.
762, § 1 (Sen. Bill No. 1210).) Subdivision (b) of section 1202.45 now provides: “In
every case where a person is convicted of a crime and is subject to either postrelease
community supervision under Section 3451 or mandatory supervision under
subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, the court shall, at
the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional postrelease community supervision revocation restitution fine or
mandatory supervision revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4 . . . .” (§ 1202.45, subd. (b).)
       Courts have inherent power to correct clerical errors on their own motions. This
includes correcting an erroneous sentence if the oral pronouncement is contrary to the
court’s intention. (People v. Menius (1994) 25 Cal.App.4th 1290, 1294 [obvious
inadvertent misstatement by trial court in referring to wrong subdivision of statute



4      Although the second fine is not reflected in the abstract of judgment, the parties
recognize that where there is a discrepancy between the oral pronouncement of judgment
and the abstract of judgment, the oral pronouncement of judgment controls, and urge us
to consider the propriety of the imposition of the revocation restitution fine. (People v.
Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.)

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corrected]; People v. Jack (1989) 213 Cal.App.3d 913, 915-916 [correction where trial
court misspoke]; People v. Schultz (1965) 238 Cal.App.2d 804, 808 [clerical error
corrected where trial court misspoke].)
       Here, the trial court ordered defendant to serve one year in county jail, after which
she would be placed on two years’ mandatory supervision. The court did not place
defendant on probation, so we assume it misspoke when it referred to the “proposed
terms of probation.” Similarly, when the trial court said it wished to impose “a further
restitution fine” to be stayed “pending [defendant’s] successful completion of probation,”
we assume it intended to impose on defendant a restitution fine to be stayed pending her
completion of the period of mandatory supervision it had just ordered defendant to
complete. Thus, although the court’s oral imposition of the second $400 restitution fine
pursuant to section 1202.44 arguably named the wrong authorizing statute (see People v.
Fandinola (2013) 221 Cal.App.4th 1415, 1422-1423), the imposition of a restitution fine
to be stayed pending the completion of defendant’s mandatory supervision was proper
under then newly amended section 1202.45. (People v. Menius, supra, 25 Cal.App.4th at
p. 1294.)
                                             II
      The Abstract Should Be Amended to Strike Imposition of the Drug Treatment
                                 and Drug Program Fines
       Defendant objected at sentencing to the recommendation of the probation
department that she pay discretionary fees, including a drug treatment fee of $100
(§ 1210.1, subd. (a)) and a drug program fee of $150 (Health & Saf. Code, § 11372.7,
subd. (a)). In response, the trial court expressly declined to impose any nonmandatory
fees or fines. The abstract of judgment nonetheless reflects the imposition of two
discretionary fees: a drug treatment fee and a drug program fee.




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       Obviously, the oral pronouncement of the court controls (see People v. Mitchell,
supra, 26 Cal.4th at pp. 185-186) and the court expressly declined to impose any
nonmandatory fees.
                                      DISPOSITION
       The judgment is affirmed. The case is remanded to the superior court with
directions to correct the abstract of judgment to reflect the imposition of a $400
revocation restitution fine pursuant to section 1202.45, and to delete references in the
abstract to a drug treatment fee and drug program fee. The superior court shall then
forward a certified copy of the amended abstract to the Sacramento County Jail.



                                                        NICHOLSON             , Acting P. J.



We concur:



      HULL                  , J.



      BUTZ                  , J.




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