Filed 12/17/14 P. v. Pottichen 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,

                   Plaintiff and Respondent,                                                 C074080

          v.                                                                     (Super. Ct. No. 13F00455)

DAVID MICHAEL POTTICHEN,

                   Defendant and Appellant.

          Appointed counsel for defendant David Michael Pottichen asked this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal.3d 436 (Wende).) Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition more favorable
to defendant. However, we remand the matter to the trial court to amend the sentencing
minute order and order of probation to accurately reflect the trial court’s sentencing
orders.




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                                               I
        On January 18, 2013, a felony complaint was filed charging defendant and a
codefendant with grand theft (count 1; Pen. Code, § 487, subd. (a))1 and receiving stolen
property (count 2; § 496, subd. (a)). Both offenses were alleged to have occurred on or
about and between October 8 and November 28, 2012.
        On March 25, 2013, defendant entered a no contest plea to count 1, in return for a
grant of probation with 330 days in county jail, the dismissal of count 2, and the dismissal
of a trailing misdemeanor case with a Harvey2 waiver. The factual basis of the plea was
as follows: On or about the dates alleged in the complaint, defendant unlawfully took
jewelry and cash, the value of which exceeded $950, from the victim.
        At the sentencing hearing on April 15, 2013, at which both defendant and the
codefendant were sentenced, the trial court suspended the imposition of sentence and
granted defendant probation for five years, including 330 days in county jail. The court
orally awarded defendant 180 days of presentence custody credits (90 actual days and 90
conduct days).3 The court reserved jurisdiction to determine victim restitution at a later
time.
        At the outset, the court stated: “[W]e already have probation conditions prepared.
I’m going to adopt most of the conditions. [¶] If I do not talk about a specific condition,
it will be adopted without any changes. The conditions generally look the same for both
defendants.” As to fines and fees, the court stated: “I’m going to delete the fines that I
can in light of the fact that there is probably going to be a substantial restitution order.



1       Undesignated statutory references are to the Penal Code.
2       People v. Harvey (1979) 25 Cal.3d 754.
3      The court stated: “You both have 90 days of credit. By law, I don’t have any
discretion, both are entitled to 90 more days. Total is 180 days credits.”


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[¶] The fines at items three, four and five on page five, both defendants, three, four and
five are deleted based upon inability to pay. [¶] Otherwise all conditions are adopted.”
The fines and fees listed as probation conditions that the court did not orally delete
include a $240 restitution fine (§ 1202.4) and a suspended probation revocation
restitution fine in the same amount (§ 1202.44), a $40 court security fee (§ 1465.8), and a
$30 court facility fee (Gov. Code, § 70373).4
       The minute order and order of probation states defendant was awarded 90 days of
presentence custody credit “for time served,” but does not mention conduct credits. It
also indicates a restitution fine and a suspended restitution fine of $280 each, as well as
the $40 court security fee, and the $30 court facility fee listed among the probation
conditions.
       Appointed counsel wrote to the trial court on September 4, 2013, requesting the
correction of three alleged sentencing errors: (1) The $280 restitution fine and suspended
restitution fine reflected in the sentencing minute order should be reduced to $240 each
because it appeared the trial court intended to impose the minimum amount and $240 was
the minimum amount in effect at the time of defendant’s offenses (on or about and
between October 8 and November 28, 2012) (People v. Souza (2012) 54 Cal.4th 90, 143
[restitution fines subject to proscriptions of ex post facto clause]); (2) The minute order’s
award of 90 days of presentence custody credit should be amended to 180 days, as the
trial court stated at sentencing; (3) Count 2 and the misdemeanor case, which were
supposed to be dismissed under the plea agreement, were not actually dismissed at




4      As this court has repeatedly reminded trial courts, the trial court at sentencing
must recite all fines, fees, and assessments on the record, including their statutory bases.
(People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)


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sentencing, and the trial court should dismiss them. Counsel requested the preparation of
a minute order reflecting these changes.
       The record does not contain an amended minute order or any other response by the
trial court to appointed counsel’s letter.
                                               II
       Appointed 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.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant. However, we remand the
matter to the trial court to correct the minute order and order of probation to accurately
reflect the trial court’s oral sentencing orders.
       We remand the matter to the trial court with directions to prepare an amended
sentencing minute order and order of probation that (1) dismisses count 2 and the
misdemeanor case; (2) imposes a restitution fine and suspended restitution fine of $240
each; and (3) awards presentence custody credit of 180 days (90 actual days and 90
conduct days) as recommended in the probation conditions the trial court orally adopted.
                                        DISPOSITION
       The judgment is affirmed. The matter is remanded to the trial court with
directions to dismiss count 2 and the trailing misdemeanor case, and to prepare an
amended sentencing minute order and order of probation that (1) dismisses count 2 and
the misdemeanor case; (2) imposes a restitution fine and suspended restitution fine of
$240 each; and (3) awards presentence custody credit of 180 days (90 actual days and 90




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conduct days) and to forward a certified copy of the amended sentencing minute order
and order of probation to the probation department.



                                                      HOCH        , J.



We concur:



      HULL        , Acting P. J.



      ROBIE        , J.




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