People v. Pena CA5

Filed 6/30/14 P. v. Pena CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F067220 Plaintiff and Respondent, (Super. Ct. No. MF010280A) v.

JOŚE LUIS PEÑA, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge. Allison Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Gomes, J. and Sarkisian, J.† † Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant José Luis Peña, Jr., pled no contest to possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 1) and possession of ammunition by a convicted felon (Pen. Code, § 30305, subd. (a); count 4). He was sentenced to two years in prison. On appeal, he contends that certain fines and fees must be stricken because the trial court failed to orally impose them at sentencing. The People concede and we agree. DISCUSSION I. Facts The probation report recommended that defendant be required to pay various fines and fees, including restitution fines pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45, and a drug program fee pursuant to Health and Safety Code section 11372.7 (with a penalty assessment). At sentencing, the trial court stated it had read and considered the probation report and recommendations. The court sentenced defendant to two years in prison, then asked if there was “any objection to the fines and fees as recommended.” Defense counsel said there was not. Without further describing the fines and fees, the court stated: “They’ll be imposed as recommended.” The abstract of judgment includes matching $280 restitution fines pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45, and a $390 drug program fee pursuant to Health and Safety Code section 11372.7, subdivision (a). The clerk’s minute order reflects the imposition of these fines and fee. II. Analysis The abstract of judgment must reflect the court’s oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.” (People v. Zackery (2007) 147 Cal.App.4th 380, 387-389.) If the clerk includes fines or fees in the minute order or on the abstract that were not orally