People v. Alaniz CA6

SEE CONCUR & DISSENT Filed 8/28/20 P. v. Alaniz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046586 (Monterey County Plaintiff and Respondent, Super. Ct. No. 17CR006054)

v.

DAVID GARCIA ALANIZ,

Defendant and Appellant.

Defendant David Garcia Alaniz’s appointed appellate counsel filed a brief raising no issues and asked us to review the record under People v. Wende (1979) 25 Cal.3d 436. We requested briefing on “whether the clerk erred in compiling the minutes of the sentencing hearing and the abstract of judgment by including imposition of a restitution fine of $600 (Pen. Code, § 1202.4, subd. (b)), a court operations assessment of $80 (Pen. Code, § 1465.8, subd. (a)(1)), and a court facilities assessment of $60 (Gov. Code, § 70373) that were not part of the oral pronouncement of sentence?” Defendant thereafter argued that the oral pronouncement of sentence prevailed and therefore we should order that the restitution fines and the two assessments be stricken from the minute order and abstract to correspond to the court’s oral pronouncement. The Attorney General agrees that the restitution fines should be stricken, but he argues that a remand is required as to the two assessments because “a sentence without assessments is unauthorized and remand for imposition of the assessments is required.” We order the superior court clerk to delete the restitution fines, but, because the two

assessments are mandatory, we decline to order their deletion. We reverse and remand the matter for correction of the minute order and the abstract. I. FACTS Norma Fernandez is defendant’s sister. Defendant and his brother lived with Fernandez’s mother. On the afternoon of November 29, 2017, Fernandez went to her mother’s house to bring her mother some vitamins. Defendant was in the front yard of the house when Fernandez parked on the street. As Fernandez approached the house, defendant “told me to get the F out of there.” She told him why she was there, and he repeated his hostile command. Fernandez replied “that it was not his house and I went in.” Defendant followed her into the house. Fernandez was afraid because defendant was very close to her, “threatening and posturing.” After a few minutes, she used her phone to call 911, and defendant tried to take her phone away. While she was on the phone, she felt “pressure in my face,” and then she woke up on the floor. Her face was swollen, and she was alone in the house. A transcript of Fernandez’s 911 calls was admitted into evidence at trial. During the 911 calls, she told the dispatcher “I’m being attacked by my brother,” screamed repeatedly, and then told the dispatcher “He just punched me.” She identified defendant as her brother and told the dispatcher “My brother just punched me in the face” and “He’s very dangerous.” Fernandez got a ride to the hospital from a woman driving by. She could not open her right eye, and she continued to have numbness and soreness many months later. The bruising and swelling around her eye did not go away for three months. II. PROCEDURAL BACKGROUND Defendant was charged by information with assault by means of force likely to 1 produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and battery with serious