People v. Gill CA3

California Court of Appeal Dec 2, 2013 No. C072537Unpublished

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Holding. The court held that the trial court's oral pronouncement controls over the clerk's transcript regarding a fine, and that the defendant forfeited his challenge to a restitution surcharge by failing to object at sentencing.

Issues

Whether the trial court's oral pronouncement controls over the clerk's transcript regarding the imposition of a fine.
Whether the defendant forfeited his challenge to a restitution surcharge by failing to object in the trial court.
Whether the defendant received ineffective assistance of counsel regarding the restitution surcharge.

Disposition. Affirmed and remanded with directions to correct the abstract of judgment.

Quotations verified verbatim against the opinion

“Where there is a discrepancy between the oral pronouncement rendering judgment and the minute order or the abstract of judgment, the oral pronouncement controls.”

“McCullough held that the failure to object to the imposition of a booking fee forfeits the argument on appeal that there was no evidence of the defendant’s ability to pay such a fee”

“In light of this resolution, counsel’s decision not to challenge the basis for the 10 percent surcharge was reasonable and not prejudicial.”

Filed 12/2/13 P. v. Gill CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta)

THE PEOPLE, C072537

Plaintiff and Respondent, (Super. Ct. No. 12F3697)

KENDAL SCOTT GILL,

Defendant and Appellant.

After assaulting his mother, defendant Kendal Scott Gill pled no contest to assault with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)1 Sentenced to four years in prison, defendant appeals. Both of his contentions relate to fines and fees. We dispense with the recitation of facts unnecessary to the disposition of these issues.

1 Undesignated statutory references are to the Penal Code.

I Defendant contends, and the People agree, that the clerk’s transcript erroneously reflects the imposition of a $200 base fine pursuant to section 672. As correctly noted by both parties, the trial court did not orally impose this fine. The rendition of judgment is the oral pronouncement at sentencing. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Where there is a discrepancy between the oral pronouncement rendering judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (Ibid.) Thus, the minute order and abstract of judgment must be amended to reflect the trial court’s pronouncement, which did not include a section 672 fine.2 (See People v. Zackery (2007) 147 Cal.App.4th 380, 385.) II Defendant also contends the trial court improperly imposed a 10 percent ($24) surcharge on his $240 restitution fine, pursuant to section 1202.4, subdivision (l).3 He contends it cannot be imposed because the record does not support a finding that the amount imposed is the actual cost incurred by the county. Defendant, however, did not object to the imposition of the surcharge at sentencing. Relying on People v. Pacheco (2011) 187 Cal.App.4th 1392, defendant contends his failure to object in the trial court did not forfeit the issue for appeal. He notes in his

People v. Gill CA3

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THE PEOPLE, C072537

KENDAL SCOTT GILL,

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