Filed 3/3/16 P. v. Alfieri 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C078085

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F03766)

         v.

JEFFREY W. ALFIERI,

                   Defendant and Appellant.




         This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Having reviewed the record as required by Wende, we affirm the judgment but order an
amendment of the abstract of judgment, as we shall explain.
         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, 124.)
                        FACTUAL AND PROCEDURAL BACKGROUND
         In May 2011, defendant Jeffrey W. Alfieri zip tied the victims, laid them on the
ground in a tire shop, pointed a shotgun at them, and demanded and took their money and
identification. A complaint filed charged defendant with three counts of robbery. (Pen.



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Code, § 211.)1 The complaint also alleged as to each count defendant personally used a
firearm. (§ 12022.53, subd. (b).) Defendant pleaded no contest to two counts of robbery
and admitted the personal use enhancements in exchange for a negotiated sentence of
12 years, to run consecutive to an unrelated federal term. The third count was dismissed
with a Harvey2 waiver.3
        The trial court sentenced defendant to an aggregate state prison term of 12 years
(two years, the low term, on count 1, plus ten years for the firearm enhancement), and the
same term on count two to run concurrent. The court awarded defendant 96 days of
presentence custody credit. The court imposed a $240 restitution fine (§ 1202.4,
subd. (b)), a $240 suspended parole revocation restitution fine (§ 1202.45), and a $40
court security fee (§ 1465.8). The court expressly waived all other fines and fees. Lastly,
the court ordered victim restitution as to count 1 and count 2 to be determined.
        Defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5)4




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2   People v. Harvey (1979) 25 Cal.3d 754.
3 In a separate case, not appealed, defendant also pleaded no contest to misdemeanor
driving under the influence of alcohol. (Veh. Code, § 23152, subd. (b)).
4 Any right to appeal from a no contest plea is governed by section 1237.5. (People v.
McEwan (2007) 147 Cal.App.4th 173, 177.) That section precludes an appeal unless: (1)
the defendant has filed a written statement “showing reasonable constitutional,
jurisdictional, or other grounds going to the legality of the proceedings”; and (2) the trial
court has issued a certificate of probable cause. (§ 1237.5; McEwan, at p. 177.) There
are two instances when an appeal is appropriate after a no contest plea: when a defendant
raises issues (1) concerning search and seizure, or (2) focusing on proceedings after the
plea concerning the degree of the crime or penalty imposed. (McEwan, at p. 177, citing
People v. Shelton (2006) 37 Cal.4th 759, 766; see also Cal. Rules of Court,
rule 8.304(b).)

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                                    WENDE REVIEW
       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. (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 of the opening brief. More than 30 days elapsed, and we
received no communication from defendant.5 Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition more favorable
to defendant.
       We must remand the matter to the trial court, however, for correction of the
abstract of judgment. The abstract states that a $30 criminal conviction assessment (Gov.
Code, § 70373) was ordered, despite the court’s oral statement that it waived all fines and
fees other than those it specifically ordered at sentencing.
       “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.
[Citations.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The abstract of
judgment may not add to or modify the judgment. (Id. at p. 389.) This rule applies even
to mandatory fines and fees, such as the criminal conviction assessment under
Government Code section 70373. (Ibid.) Because the trial court stated that it was
waiving all fines and fees other than those it expressly imposed, the abstract of judgment
could not properly add any fines or fees to the judgment.




5 Counsel’s Wende brief was filed on September 23, 2015. On December 10, 2015,
defendant filed a motion to file a late supplemental brief, indicating he had not received
counsel’s letter explaining the Wende brief until “late Oct[ober].” Because defendant did
not obtain a certificate of probable cause the issues cognizable on appeal are limited to
those occurring after the plea concerning the sentence imposed. Defendant was
sentenced in accordance with the negotiated plea. Accordingly, we denied this motion.

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                                    DISPOSITION
       The judgment is affirmed. The matter is remanded to the trial court with
directions to prepare an amended abstract of judgment that omits the $30 criminal
conviction assessment under Government Code section 70373, and to forward a certified
copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.



                                                      MURRAY               , J.


We concur:



      NICHOLSON            , Acting P. J.



      MAURO                , J.




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