Filed 6/9/16 P. v. Chan 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C079668

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF090168D)

         v.

RATHANA CHAN,

                   Defendant and Appellant.



         Appointed counsel for defendant Rathana Chan has 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.) We order correction of the abstract of judgment to conform to the
oral pronouncement of sentence and affirm the judgment.
                                                 BACKGROUND
         On September 12, 2003, defendant and another person fired shots from
defendant’s car into another vehicle, killing one person and wounding two others.
Several of defendant’s passengers told police that, when defendant pulled alongside the
victims’ vehicle, he said he believed the victims were gang members who “had shot at


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him before in the past” and were “the enemy.” Defendant’s passengers also told police
that people in defendant’s car were also members of a gang.
       On January 17, 2006, defendant was charged by third amended complaint with one
count of murder (Pen. Code, § 187--count 1),1 two counts of attempted premeditated
murder (§§ 664/187, subd. (a)--counts 2 and 3), discharge of a firearm from a vehicle
(§ 12034, subd. (d)--count 4), shooting at an occupied motor vehicle (§ 246--count 5),
street terrorism (§ 186.22, subd. (a)--count 6), and possession of a firearm by a felon
having previously been convicted of a violent offense (§ 12021.1, subd. (a)--count 7).
The complaint alleged that, in committing count 1, defendant discharged a firearm from a
vehicle with the intent to kill (§ 190.2, subd. (a)(21)) and was an active participant in a
criminal street gang (§ 190.2, subd. (a)(22)). The complaint further alleged that, in
committing counts 1 through 5, a principal personally and intentionally discharged a
handgun causing death to the victim (§ 12022.53, subds. (d) & (e)(1)) and that defendant
committed the offense for the benefit of, at the direction of, and in association with a
criminal street gang (§ 186.22, subd. (b)(1)). A warrant issued for defendant’s arrest on
January 17, 2006.
       On October 26, 2012, defendant filed a motion to dismiss the outstanding warrant,
claiming unreasonable delay in his extradition in that he had been serving time in
Pennsylvania and was easily located. The trial court appointed counsel for defendant, but
the motion to dismiss was dropped from calendar after two appearances where
defendant’s whereabouts were unknown.
       On July 8, 2013, defendant appeared in court with counsel. Defendant entered not
guilty pleas and the matter was set for a preliminary hearing. Defendant made no
mention of his motion to dismiss. The preliminary hearing was conducted and on



1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.

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July 29, 2013, defendant was charged by information with allegations nearly identical to
those in the previously filed amended complaint, adding only that, in committing
counts 1 through 5, defendant personally and intentionally discharged a handgun causing
death to the victim (§ 12022.53, subds. (b)-(e)) and personally used a firearm
(§ 12022.5).
       Over the course of the next two years, the trial court conducted a number of
hearings in defendant’s case and eventually appointed new counsel. On March 2, 2015,
defendant entered a negotiated plea of no contest to a charge of voluntary manslaughter
(§ 192, subd. (a)--amended count 1), a strike, and admitted a firearm use enhancement
(§ 12022.5), and a gang enhancement (§ 186.22, subd. (b)(1)) in exchange for a stipulated
20-year sentence and dismissal of the balance of charges and allegations against him, as
well as a pending petition for violation of probation. The parties stipulated to the
preliminary hearing transcript as a factual basis for the plea.
       The trial court sentenced defendant to 20 years in state prison (the upper term of
11 years plus a consecutive four-year term for the firearm enhancement and a five-year
term for the gang enhancement), consistent with the plea agreement, with 795 days of
presentence custody credit (692 actual days plus 103 conduct credits). The court imposed
a $300 restitution fine (§ 1202.4), a $300 parole revocation fine, stayed pending
successful completion of parole (§ 1202.45), a $40 court security fee (§ 1467.8), and a
$30 criminal conviction fee (Gov. Code, § 70373), and reserved jurisdiction on the issue
of victim restitution.
       Defendant filed a timely notice of appeal. The trial court granted his request for a
certificate of probable cause.
                                       DISCUSSION
       Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right

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to file a supplemental brief within 30 days of the date of filing of the opening brief. More
than 30 days have elapsed and we received no communication from defendant.
       We note one small discrepancy between the trial court’s oral pronouncement of
sentence and the abstract of judgment. The abstract contains a “$30 surcharge” not orally
imposed by the court and not accompanied by any identifying statutory basis. The
abstract of judgment may not add to or modify the judgment (People v. Zackery (2007)
147 Cal.App.4th 380, 385, 389) and, where there is a discrepancy between the oral
pronouncement of judgment and the abstract of judgment, the oral pronouncement
controls (People v. Mitchell (2001) 26 Cal.4th 181, 185-186). We shall direct the trial
court to correct the abstract accordingly.
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment that omits the $30 surcharge, and to forward a certified copy to the
Department of Corrections and Rehabilitation.



                                                       /s/
                                                 Duarte, J.


We concur:


     /s/
Nicholson, Acting P. J.



      /s/
Butz, J.


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