Filed 6/2/15 P. v. Hoffman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068278
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF40105)
                   v.

SARA ELISABETH HOFFMAN,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. Douglas
C. Boyack, Judge. (Retired Judge of the Tuolumne Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
         Karriem Baker, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Henry J.
Valle, Deputy Attorneys General for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
                                    INTRODUCTION
       Defendant, Sara Elisabeth Hoffman, was charged with transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of
methamphetamine for sale (Health & Saf. Code, § 11378). A jury found defendant guilty
on both counts, and defendant was placed on five years of probation and ordered to serve
four months in county jail and four months of electronic monitoring.
       On appeal, defendant argues: (1) the trial court miscalculated defendant’s
presentence conduct credit; (2) the minute order and order granting probation include
restitution fines that were not imposed by the trial court; and (3) the minute order and
order granting probation erroneously state defendant was guilty by plea rather than guilty
by jury trial. We order the minute order and order granting probation amended to reflect
an additional six days of presentence conduct credit for defendant and defendant’s
conviction by jury trial. We also order defendant’s restitution fines stricken from the
minute order and order granting probation. In all other respects, the judgment is
affirmed.
                                      DISCUSSION
       I. Defendant is entitled to six days of presentence conduct credit.
       Defendant argues, and the People concede, that the trial court erred by failing to
award defendant six days of presentence conduct credit. We agree.
       Under Penal Code section 4019, subdivision (f), a prisoner is entitled to two days
of conduct credit for every two days of presentence custody in county jail. Here,
defendant served six days in county jail prior to the beginning of her sentence but, while
she received credit for the six days actually served, she did not receive any additional
presentence conduct credit. Accordingly, we modify the judgment to reflect an additional
six days of presentence conduct credit.




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       II. Defendant’s restitution fines must be stricken.
       Defendant also contends that the restitution fines contained in the minute order
and order granting probation should be stricken, as they were not orally imposed by the
trial court at sentencing. We agree.
       Under Penal Code section 1202.4, subdivision (b), “[i]n every case where a person
is convicted of a crime,” the trial court must impose a restitution fine, “unless it finds
compelling and extraordinary reasons for not doing so and states those reasons on the
record.” Similarly, in every case in which a person is convicted of a crime and a sentence
that includes a period of probation is imposed, the trial court is required to “assess an
additional probation revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4.” (Pen. Code, § 1202.44.)
       Here, the trial court failed to order the imposition of a restitution fine under Penal
Code section 1202.4, subdivision (b).1 The minute order and order granting probation,
however, reflect the imposition of a $1,400 restitution fine under Penal Code section
1202.4, subdivision (b), as well as a corresponding $1,400 fine under Penal Code section
1202.44, the latter of which was to be assessed and suspended pending the termination of
probation.
       Where there is a discrepancy between a court’s oral pronouncement and a written
minute order, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th
181, 185-186.) “The clerk cannot supplement the judgment the court actually
pronounced by adding a provision to the minute order and the abstract of judgment.”
(People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) When the clerk’s minutes
include fines that were not orally pronounced by the trial court, those fines must be
stricken. (Id. at p. 388; People v. Rowland (1988) 206 Cal.App.3d 119, 124.)

1      The trial court mentioned, in terms of sentencing, that its “inclination would be to
follow the recommendation of the probation department.” Stating an inclination,
however, is far from ordering a specific fine.


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Accordingly, the fines at issue in this case must be stricken from the minute order and
order granting probation.
       Further, we need not remand the matter to the trial court for the imposition of the
stricken fines. An appellate court may not correct a discretionary sentencing choice
regarding imposition of a fine or fee if the People fail to object in the trial court. (People
v. Tillman (2000) 22 Cal.4th 300, 303.) A restitution fine under Penal Code section
1202.4 is a discretionary sentencing choice. (People v. Tillman, supra, at p. 302.) As the
People did not object to the trial court’s failure to impose a restitution fine in this case,
we consider the matter waived. (Id. at p. 303.)
       III. The minute order and order granting probation must be amended.
       Defendant’s minute order and order granting probation state that defendant was
convicted by plea of guilty. This appears to be a clerical error, as defendant was
convicted by jury trial. As we have the authority to correct clerical errors of this sort, we
modify the minute order and order granting probation to reflect that defendant was
convicted by jury trial. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
                                       DISPOSITION
       We order the minute order and order granting probation amended to reflect an
additional six days of presentence conduct credit, for a total of 12 days, and defendant’s
conviction by jury trial. We also order the restitution fines imposed under Penal Code
sections 1202.4, subdivision (b) and 1202.44 to be stricken from the minute order and
order granting probation. The court is ordered to forward the amended minute order and
order granting probation to the probation department. In all other respects, the judgment
is affirmed.




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