Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF110651A
HULL, J.Defendant Salvador Anthony Mesa pleaded guilty to assault with a deadly weapon (a vehicle) upon a peace officer (Pen. Code, § 245, subd. (c); unspecified statutory section references that follow are to the Penal Code) and admitted having a prior strike conviction. He appeals, contending the trial court erred by including in the sentencing minute order and the abstract of judgment a $200 restitution fine (§ 1202.4) and a $200 parole revocation fine (§ 1202.45), which were not orally pronounced by the court in defendant’s presence. He also contends the abstract of judgment should be amended to describe unambiguously the crime of which he was convicted. The People concede both errors and seek remand; defendant argues no remand is necessary.
Defendant has the better argument. We shall order the minute order and abstract of judgment amended.
Facts and Proceedings
California Highway Patrol Officer Keith Sweeney testified at the preliminary hearing that he joined two other officers who had attempted unsuccessfully to initiate an enforcement traffic stop on the truck defendant was driving. After Sweeny succeeded in stopping defendant’s red pickup truck and was standing outside his open patrol car, defendant put his truck in reverse and struck Officer Sweeney’s patrol car. The open patrol car door pushed Sweeney backwards. Sweeney recovered himself, pulled defendant out of his truck, and arrested him.
After defendant entered his plea, the court sentenced him to state prison for the midterm of four years, doubled by virtue of the prior strike conviction. The court did not impose any fines or fees, but its last words at sentencing were, “Run the fines concurrent.”
Discussion
I
The Restitution Fine
Section 1202.4 requires trial courts to impose a restitution fine as part of the judgment of conviction entered against a criminal defendant; when parole is granted, an additional fine is required by section 1202.45 to be imposed in the same amount suspended unless parole is later revoked. The restitution fine under section 1202.4 is mandatory unless the sentencing court, in the words of the statute, “finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (§ 1202.4, subd. (b).) In cases in which the court imposes a restitution fine, imposition of a parole revocation fine is also mandatory. (§ 1202.45.)
The parties agree that when there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) A court clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and/or the abstract of judgment. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 (Zackery).) And when he or she has done so, the Court of Appeal shall strike those fines or fees that were not imposed at sentencing but nonetheless appear in the abstract of judgment or minute order. (Id. at p. 388.) The parties also agree that, because the trial court imposed no restitution or parole revocation fine at sentencing, it must be struck from the abstract of judgment and minute order.
But the parties disagree about what should happen next. Citing People v. Tillman (2000) 22 Cal.4th 300, defendant argues no further proceedings are appropriate. In Tillman, the Court of Appeal had amended the judgment to add restitution fines omitted without reasons by the trial court. The California Supreme Court in Tillman reversed the Court of Appeal, holding that a prosecutor’s failure to object to the trial court’s omission of a restitution fine without stating reasons forfeited the issue on appeal. (Id. at p. 302–303 [“‘Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing’”], quoting People v. Scott (1994) 9 Cal.4th 331, 353; see also People v. Avila (2009) 46 Cal.4th 680, 729 [citing Tillman] and People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, fn. 3 [“Tillman is still good law and has not been legislatively overruled”].) Defendant contends Tillman “makes clear that the case should not be remanded to cure the defect. Rather, the improper clerical error in the minutes and abstract of judgment should simply be corrected.”
The People, however, urge us to remand the matter so that the trial court may exercise its discretion to impose the restitution fines or, alternatively, to find “compelling and extraordinary reasons for not doing so” and to state those reasons on the record. (§ 1202.4, subd. (b).) They cite this court’s opinion in Zackery, supra, 147 Cal.App.4th 380, in which we did just that, because “the trial court did not state any reasons on the record” for its failure to impose the mandatory restitution fines, we remanded the case to the trial court “to determine whether to impose restitution fines.” (Id. at p. 389.)
Zackery is of no assistance to the People, as Zackery does not discuss Tillman or the forfeiture issue. “It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court.” (People v. Harris (1989) 47 Cal.3d 1047, 1071.) Moreover, in Zackery, this court found numerous errors in the clerk’s record and in the sentence based on those errors, as well as in the resulting abstract of judgment: the minutes at a change of plea hearing erroneously stated that the defendant changed his plea on one charge from “not guilty” to “nolo contendere”; the court imposed a $2,150 fine for the nonexistent conviction; and, absent any oral pronouncement or reference at all, the clerk added various other fines and provisions to the minutes and to the abstract of judgment. (Zackery, supra, 147 Cal.App.4th at pp. 385-390.) It was in this context that we concluded that the case was “replete with errors” and necessitated remand. (Id. at p. 384; see also id. at p. 388.)
We shall direct the trial court to correct the minute order and the abstract of judgment to delete the fines not imposed at sentencing.
II
The Abstract of Judgment
The parties also agree that the abstract of judgment must be amended to accurately and unambiguously describe the crime of which defendant was convicted. We agree.
The facts adduced at the preliminary hearing make clear that the deadly weapon with which defendant admitted having assaulted Officer Sweeney was a vehicle, not a firearm. Nor was there any finding involving a firearm.
The abstract of judgment indicates defendant was convicted of “ADW NO FIREARM/LIKELY GBI PCE OFFICER/FIREARM.” We agree with defendant that the “description of the crime in the Abstract is confusing, as it states ‘no firearm’ and then ‘firearm.’” He asks that we direct the abstract to be amended to eliminate the final reference to “firearm” in the crime description; the People agree the abstract should be so amended.
The trial court should amend the abstract to reflect accurately its oral judgment at sentencing, and to eliminate the ambiguity created by the last reference to a “firearm.” (See People v. Mitchell, supra, 26 Cal.4th at p. 185.)
Disposition
The judgment is affirmed. The trial court is directed to correct the sentencing minute order and the abstract of judgment by deleting the $200 restitution fine (§ 1202.4) and parole revocation fine (§ 1202.45), and to correct the abstract of judgment by deleting the last word in the description of the crime, i.e., “firearm.” The court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.