IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 21, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANIEL LOPEZ, DEFENDANT AND APPELLANT.
(Monterey County Super.Ct.No. SS071709)
The opinion of the court was delivered by: Duffy, J.
P. v. Lopez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found true three recidivist enhancement allegations against defendant Daniel Lopez. On appeal he presents only a housekeeping matter. He claims that the abstract of judgment must be amended to reflect the trial court's oral recitation of the judgment--a recitation that made certain fines more lenient than the abstract of judgment shows. The Attorney General concedes that the claim is meritorious. We will direct that the abstract of judgment be amended and affirm the judgment.
In 2008 a jury convicted defendant, a prison inmate, of assault with a deadly weapon by a prisoner (Pen. Code, § 4501)*fn1  and possession of a prohibited weapon by a prisoner, namely a sharp instrument (§ 4502, subd. (a)). It found true an allegation that the section 4501 charge constituted a serious felony within the meaning of section 1192.7, subdivision (c)(23), because defendant personally used a deadly or dangerous weapon. It also found true recidivist enhancement allegations that defendant had a prior conviction that implicated the "Three Strikes" law and made him a second-strike offender subject to a doubling of his prison sentence (§ 1170.12, subd. (c)(1)) and two prior convictions that implicated section 667, subdivision (a), a habitual offender statute.
In People v. Lopez (Jun. 23, 2009, H032986) [nonpub. opn.] we reversed the judgment with regard to the three recidivist enhancement allegations because of instructional error.*fn2
A new jury was assembled to try the enhancement allegations and found all three of them true. The trial court sentenced defendant to 14 years in state prison.
Defendant claims that the trial court's oral rendition of judgment specified a term at variance with the abstract of judgment. Specifically, the court orally imposed a $200 restitution fine on defendant pursuant to section 1202.4, subdivision (b)(1), thereby also imposing, by operation of law, an equal parole revocation restitution fine under section 1202.45. The court stated that defendant must "pay a state restitution fine of $200" (§ 1202.4, subd. (b)(1)) and the parole revocation restitution fine is, by statute, to be in the same amount (§ 1202.45). Moreover, the court stated that it intended to impose the same restitution fine amount that a different judge of that court had imposed in 2008: "I'm going to make it [the section 1202.4 fine] the amount it was back in 2008." The record contained in our case file in People v. Lopez, supra, H032986, shows that in 2008 the court imposed $200 fines under sections 1202.4, subdivision (b)(1) and 1202.45.
The clerical preparer of the abstract of judgment, however, evidently thought that the court had adopted an optional formula under section 1202.4, subdivision (b)(2). The clerk accordingly set down, both in a minute order and in the abstract of judgment, that the court had imposed a $5600 restitution fine and a $5600 parole revocation restitution fine, the latter suspended unless defendant's parole should be revoked later (see § 1202.45).
It is the oral pronouncement of judgment that determines the sentence. (People v. Mesa (1975) 14 Cal.3d 466, 471.) A judgment includes the applicable fines. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.)
Courts may correct their employees' clerical errors at any time, and appellate courts may order corrected abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 187-188.) The records of this case and People v. Lopez, supra, H032986, show unequivocally that the trial court in the case before us intended to and did impose $200 fines. The People agree that the abstract of judgment is incorrect and that the correct amount for each fine is $200. We will order the abstract of judgment to be modified to reflect the $200 fines the court imposed.
The judgment is modified to impose a restitution fine of $200 under Penal Code section 1202.4, subdivision (b)(1), and a parole revocation restitution fine of $200 under Penal Code section 1202.45, the latter fine suspended pursuant to Penal Code section 1202.45. The trial court is directed to prepare an amended abstract of judgment
and forward a certified copy of it to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J. Mihara, J.