Filed 11/12/14 P. v. Ojeda CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058700

v.                                                                       (Super.Ct.No. SWF1208112)

ARTURO OJEDA,                                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.

Affirmed with directions.

         David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton,

Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant is serving four years in state prison after pleading guilty to possessing

methamphetamine and a billy club. He challenges only the imposition of a restitution

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fine and a parole revocation restitution fine because, although the fines are set forth in the

minute order for the sentencing hearing, the sentencing court did not actually impose

them at the hearing. For the reasons discussed below, we order the minute order and

abstract of judgment corrected to reflect that the sentencing court did not impose any

restitution fines.

                               PROCEDURAL BACKGROUND

       On December 11, 2012, defendant pled guilty to possessing methamphetamine

(Health & Saf. Code, § 11377, subd. (a)) and possessing a billy club (Pen. Code, §

22210)1 and admitted a strike prior (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

       On March 18, 2013, the trial court heard and denied defendant’s motion to

withdraw his plea. On that date, the court sentenced defendant to two years for the drug

charge, doubled to four years for the strike prior, plus a concurrent sentence of two years

for the billy club charge, doubled to four years for the strike prior. The court awarded

defendant 102 days of actual pre-sentence custody credits, plus 102 days of good-time

credits (§ 4019). The record transcript indicates the court did not impose or even mention

any fines. However, the minute order for that date reflects a $960 restitution fine

pursuant to section 1202.4, subdivision (b) and a $960 parole revocation fine also

pursuant to section 1202.45, subdivision (a), which the court “suspended unless parole is

revoked.” These fines are also found on the abstract of judgment.

       This appeal followed.


       1   All section references are to the Penal Code unless otherwise indicated.


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                                        DISCUSSION

       Defendant argues the restitution and parole revocation fines should be stricken

because they were not part of the trial court’s oral pronouncement of judgment.

       We agree that the trial court did not actually impose the fines, even though they

are included on the minute order, because the court did not do so orally at sentencing in

the presence of defendant. “Where there is a discrepancy between the oral

pronouncement of judgment and the minute order or the abstract of judgment, the oral

pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385

(Zackery).) “Although we recognize that a detailed recitation of all the fees, fines and

penalties on the record may be tedious, California law does not authorize shortcuts.”

(People v. High (2004) 119 Cal.App.4th 1192, 1200.) “The clerk cannot supplement the

judgment the court actually pronounced by adding a provision to the minute order and the

abstract of judgment.” (Zackery, at pp. 387-388.)

       However, as the People point out, the trial court was obligated either to impose

both the restitution fine and the parole revocation fine, or state on the record its reasons

for not imposing the fines. “In every case where a person is convicted of a crime, the

court shall impose a separate and additional restitution fine, unless it finds compelling

and extraordinary reasons for not doing so and states those reasons on the record.”

(§ 1202.4, subd. (b).) “In every case where a person is convicted of a crime and his or

her sentence includes a period of parole, the court shall, at the time of imposing the

restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole

revocation restitution fine in the same amount as that imposed pursuant to subdivision (b)


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of Section 1202.4.” (§ 1202.45, subd. (a).) Therefore, in addition to the error by the

court clerk in supplementing the court’s oral judgment, the sentencing court erred when it

neither imposed the fines nor stated on the record its reasons for not imposing the fines.

       The next question, then, is what to do about this. Defendant argues we should

order the fines stricken. The People argue the matter should be remanded to the

sentencing court so it can consider whether to impose the fines and, if not, to state its

reasons on the record.

       In Zackery, the relevant facts were identical to those of this case—the trial court

did not orally impose these two fines or state its reasons for not imposing them, although

the clerk entered the fines into the minutes. The court of appeal remanded the case to the

trial court to perform its duty—to either impose the fines or state on the record its reasons

for not doing so. The People argue this exact remedy would be appropriate in this case.

We might be inclined to agree, were it not for the following decision handed down by our

Supreme Court on the issue of waiver.

       In People v. Tillman (2000) 22 Cal.4th 300 (Tillman), our Supreme Court found

that the appellant—in that case the People—had waived its right to challenge the

“sentencing court’s failure to discharge the duty imposed by the statutes.” In Tillman, the

tables were turned, in that the People sought to have these same two fines imposed on

appeal after the trial court had omitted to either impose the fines or state its reasons for

not imposing them. In that case, however, the fines did not appear in the minutes. The

Supreme Court found “no material difference” as to whether an appellant had waived the

issue, no matter whether the appellant was a defendant challenging the fines imposed or


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the People challenging that the fines were not imposed. “Although the court is required

to impose sentence in a lawful manner, counsel is charged with understanding,

advocating, and clarifying permissible sentencing choices at the hearing. Routine defects

in the court’s statement of reasons are easily prevented and corrected if called to the

court’s attention. As in other waiver cases, we hope to reduce the number of errors

committed in the first instance and preserve the judicial resources otherwise used to

correct them.” (Id. at p. 303, citing People v. Scott (1994) 9 Cal.4th 331, 353.) The

Supreme Court declared the imposition of these two restitution fines together to be a

“discretionary sentencing choice,” and so we are bound by this.2

       The People contend that the holding in Tillman means “the trial court’s failure

could not be corrected on appeal when there had been no objection below.” This may be

true. However, we see two separate failures or errors here in the trial court—one subject

to waiver and one not. The first error was by the court at sentencing when it failed to

comply with sections 1202.4, subdivision (b), and 1202.45, subdivision (a), which

required the court to either impose the fines or state its reasons for not doing so. Under

Tillman, this type of error is not correctible on appeal unless the appellant points out the


       2   We acknowledge the People’s argument that section 1202.46, enacted effective
January 1, 2000, allows a victim, the People or the sentencing court to request
“correction, at any time, of a sentence when the sentence is invalid due to the omission of
a restitution order or fine without a finding of compelling and extraordinary reasons
pursuant to Section 1202.4.” (§ 1202.46.) However, we agree with the court in People v.
Turrin (2009) 176 Cal.App.4th 1200, at page 1208, footnote 3, that section 1202.46 did
not Legislatively overrule Tillman, and that the statute “does not allow correction of a
judgment for a restitution fine [on appeal] where its omission has been forfeited.”



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error to the sentencing court in time for it to correct the error. Neither party did so here.3

The second failure was that of the clerk when he or she inaccurately entered into the

minutes a report that the court had imposed the fines, when it fact the court had not. This

error was then compounded when the abstract of judgment was prepared to include the

fines. This is not the type of error described in Tillman that the defendant could have

pointed out at the sentencing hearing in time for the court to have prevented or corrected

it. While we cannot pinpoint with accuracy when defendant and/or his counsel became

aware of the error, it is not unreasonable to assume that this awareness did not take place

in time to prevent or correct the error without resorting to the appeal process.

       For the reasons stated above, we conclude that the trial court’s error in failing to

impose the fines or state why it was not imposing them was correctable at the time, and

so any challenge to this error is waived. However, defendant has not waived his ability to

ask this court, in this appeal, to correct the inaccurate minutes and abstract of judgment.

Waiver principals do not apply in this instance because defendant had no opportunity to

point out the error at the sentencing hearing so that the sentencing court could prevent or

correct the error.

                                        DISPOSITION

       We direct the superior court clerk to correct the minute order of the sentencing

hearing and the abstract of judgment to reflect that the sentencing court did not impose



       3 The plea agreement contains a hand-written notation at the bottom of the first
page referring to the two restitution fines. However, defendant did not initial this
                                                                   [footnote continued on next page]


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any restitution fines, and to forward an amended abstract of judgment to the Department

of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               GAUT
                                                                                        J.*



We concur:

RAMIREZ
                             P. J.

MILLER
                                J.




[footnote continued from previous page]
notation, and there is no indication when this notation was added to the agreement. Thus,
we do not consider the notation and the fines to be part of the plea agreement.

        *Retired Associate Justice of the Court of Appeal, Fourth Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



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