Filed 6/21/16 P. v. Ong 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C078740

                   Plaintiff and Respondent,                                     (Super. Ct. No. CRF14533)

         v.

ROBERT LEE ONG,

                   Defendant and Appellant.




         Defendant Robert Lee Ong pled no contest to four counts of assault with a
semiautomatic firearm and one count of being a felon in possession of a firearm. The
trial court sentenced him to an aggregate term of 12 years eight months in prison.
         On appeal, defendant contends, and the People concede, the trial court erred by
imposing a restitution fine (Pen. Code,1 § 1202.4, subd. (b)) and a parole revocation




1        Undesignated section references are to the Penal Code.

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restitution fine (§ 1202.45) on each count; however, the parties disagree as to the correct
amount of the fines. Defendant contends (based on the minutes of the sentencing
hearing) that the restitution fines should total $2,900 each, while the People contend
(based on the reporter’s transcript of the sentencing hearing) that the fines should total
$3,900 each.
       We conclude the People are correct, and therefore modification of the judgment,
correction of the minutes of the sentencing hearing, and amendment of the abstract of
judgment are appropriate here.
                                      DISCUSSION2
       With respect to restitution fines, the trial court orally pronounced (consistent with
the recommendation in the probation report) as follows: “Restitution fine on Count 1 is
$1,800. That’s imposed. Second $1,800 restitution fine is suspended. [¶] On Count 2,
$600 restitution fine is imposed. $600 restitution fine is suspended. [¶] Count 3, $600
restitution fine is imposed. $600 restitution fine is suspended. [¶] Count 4, $600
restitution fine is imposed. $600 is suspended. [¶] Count 9, $300 restitution fine is
imposed. $300 is suspended.” The minutes from the sentencing hearing track the court’s
oral pronouncement of the separate fines as to each count, except that the minutes reflect
two $800 fines on count 1, rather than the two $1,800 fines the court orally pronounced.
Meanwhile, the abstract of judgment reflects a single restitution fine of $2,900 and a
single parole revocation restitution fine in the same amount. $2,900 is the total of the
separate fines reflected in the minutes ($800 plus $600 plus $600 plus $600 plus $300);
the total of the separate fines the court orally pronounced is $3,900.
       Defendant contends, the People concede, and we agree that the trial court erred by
imposing a separate restitution fine and a separate parole revocation restitution fine as to



2      We dispense with a recitation of the underlying facts as they are unnecessary to
the resolution of the limited issue raised on appeal.

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each count. Although the number of counts as well as the number of years to which a
defendant is sentenced per count may be considered in determining the restitution fine
(see § 1202.4, subd. (b)(2)), defendant was subject to the imposition of only a single
restitution fine and a single parole revocation restitution fine. (People v. Sencion (2012)
211 Cal.App.4th 480, 483.)
       The question that remains is what action is appropriate to address the trial court’s
error. In his opening brief, defendant requests that we order the minutes amended to
reflect a single restitution fine in the amount of $2,900 and a single parole revocation
restitution fine in the same amount. For their part, the People contend “a correction to the
sentencing minute order and the abstract of judgment is necessary” because “it is evident
[from the court’s oral pronouncement] that the trial court intended to impose a restitution
fine and a parole revocation restitution fine in the amount of $3,900 rather than $2,900.”
In his reply brief, defendant contends remand is the appropriate action because it is not
clear what amounts the trial court intended to impose.
       We agree with the People that the record supports the conclusion that the trial
court ultimately intended to impose a single restitution fine of $3,900 and a single parole
revocation restitution fine in the same amount, although the court never actually reached
the point of pronouncing those totals. The court’s pronouncement of separate fines for
each count appears to have been attributable to the fact that: (1) that is how the fines
were broken out in the probation report; and (2) that is how the form used for the minutes
was structured also. Thus, while the court orally pronounced separate fines attributable
to each count, it clearly appears to have been the court’s intent to impose total fines that
were the aggregates of those separate fines. Indeed, defendant does not argue otherwise.
His argument is that the court intended the separate fines attributable to count 1 to be
$800, as reflected in the minutes, instead of $1,800, as reflected in the court’s oral
pronouncement. However, the law is clear that the oral pronouncement controls over the
clerk’s minutes. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Zackery

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(2007) 147 Cal.App.4th 380, 385.) Thus, we agree with the People that the total fines the
trial court intended to impose were $3,900 each.
       Contrary to the People’s argument, however, it is not enough for us to order
correction of the minutes and amendment of the abstract of judgment. Because the
court’s oral pronouncement is the judgment (see People v. Thomas (1959) 52 Cal.2d 521,
529, fn. 3; §§ 1202, 1191), here the judgment was in error because the trial court orally
pronounced separate restitution fines as to each count and never pronounced a single
restitution fine and a single parole revocation restitution fine for the case as a whole.
That error must be corrected. Accordingly, we will modify the judgment by striking the
separate restitution fines the trial court imposed as to each count and imposing in their
place a single restitution fine in the amount of $3,900 and a single parole revocation
restitution fine in the same amount. In addition, we will order the trial court to correct its
minutes from the sentencing hearing and to amend the abstract of judgment accordingly.
       We reject defendant’s argument that remand is appropriate because there is an
ambiguity regarding the trial court’s intent in imposing the restitution fines. According to
defendant, an ambiguity exists because the trial court indicated “zero action needed” in
response to his Fares3 letter asking the trial court to correct the restitution fines.
However, nothing in the record suggests the trial court reviewed the reporter’s transcript
to determine whether a discrepancy existed between the oral pronouncement of sentence
and the minutes. Indeed, the trial court could have simply reviewed the minutes and the
abstract of judgment and found no discrepancy between those documents and thus no
need for action. Thus, the trial court’s indication of “zero action needed” does not create
an ambiguity in the record that would require or justify remand.




3      People v. Fares (1993) 16 Cal.App.4th 954.

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                                      DISPOSITION
       The judgment is modified to strike the separate restitution fines imposed as to each
count and to impose in their place an aggregate restitution fine of $3,900 and a parole
revocation restitution fine, suspended, in the same amount. The trial court is directed to
correct the minutes from the sentencing hearing on January 12, 2015, and to amend the
abstract of judgment accordingly to reflect an aggregate restitution fine in the amount of
$3,900 and an aggregate parole revocation restitution fine in the amount of $3,900. The
trial court shall forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
       As modified, the judgment is affirmed.



                                                 /s/
                                                 Robie, Acting P. J.



We concur:



/s/
Duarte, J.



/s/
Renner, J.




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