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The People v. Peter Palacios

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


July 25, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PETER PALACIOS, SR., DEFENDANT AND APPELLANT.

(Super. Ct. No. SF112062A)

The opinion of the court was delivered by: Robie , J.

P. v. Palacios

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On June 10, 2009, defendant Peter Palacios, Sr., attempted to break into a locked car with a coat hanger.

On July 30, 2009, defendant pled guilty to attempted second degree burglary in exchange for the low term of eight months in state prison and termination of probation in another matter. The trial court sentenced defendant to state prison accordingly.

On June 22, 2010, defendant filed both a motion to dismiss the restitution fine and a notice of appeal. On June 23, 2010, the trial court denied the motion to dismiss the fine. On November 4, 2010, this court granted defendant's motion for relief from untimely filing of the notice of appeal. On November 12, 2010, the trial court granted defendant's request for a certificate of probable cause.

We appointed counsel to represent defendant on appeal. Pursuant to People v. Wende (1979) 25 Cal.3d 436, counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

We note two sentencing errors. The first sentencing error involves the fees and fines imposed. In orally pronouncing judgment, the trial court imposed "$270 in fines, payable through the Department of Corrections, and a $200 parole revocation fine, which is stayed." The abstract of judgment and minutes reflect that the trial court imposed a $200 restitution fine, a $200 parole revocation restitution fine, a $20 administrative surcharge for the restitution fine, a $20 court security fee, and a $30 conviction assessment fee. When there is a discrepancy between the oral pronouncement of judgment and the minute order/abstract of judgment, the oral pronouncement controls. (People v. Delgado (2008) 43 Cal.4th 1059, 1070; People v. Mesa (1975) 14 Cal.3d 466, 471.) The trial court's oral pronouncement of "$270 in fines" would appear to include the $200 restitution fine because the court orally ordered defendant to pay a $200 parole revocation restitution fine, stayed pending revocation of parole, which must be in the same amount as the restitution fine (Pen. Code, § 1202.45), the $20 administrative surcharge, the $20 security fee, and the $30 assessment fee, but the court did not so designate and a court clerk cannot supplement the judgment orally pronounced by adding them in the minutes/abstract. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) As we explained in People v. High (2004) 119 Cal.App.4th 1192 at page 1200, "[a]lthough 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." Accordingly, we vacate "the $270 in fines" order and direct the trial court on remand to separately state each and every fee, fine and/or penalty included in the "$270 in fines" and the statutory basis therefore. In doing so, the trial court should clarify whether the $200 restitution fine pursuant to Penal Code section 1202.4 is included in that amount.

The second sentencing error involves conduct credit. The trial court awarded seven days of presentence custody credit (five actual days, two conduct days). Defendant is entitled to additional conduct credit pursuant to the recent amendment to Penal Code section 2933 (amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010). Defendant is entitled to five conduct days rather than two days for a total of 10 days of presentence custody credit.

DISPOSITION

The trial court's order of "$270 in fines" is vacated and the matter is remanded for further proceedings in accordance with this opinion. The judgment is modified to provide for five conduct days rather than two conduct days for a total of 10 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.

We concur: RAYE , P. J. MAURO , J.

20110725

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