People v. Hernandez CA2/4 ( 2021 )

Filed 5/27/21 P. v. Hernandez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B306497
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA091217)
v.
CARLOS LUIS HERNANDEZ, JR.
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael V. Jesic, Judge. Affirmed as
modified with directions.
Aaron J. Schechter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Carlos Luis Hernandez contends, and respondent
Attorney General agrees, that the minute order the trial court
issued after appellant’s probation revocation hearing contains
two errors. First, it inaccurately states that appellant and his
counsel admitted the probation violation. Second, it states that
the court imposed a restitution fine of $300 under Penal Code
section 1202.4, subdivision (b),1 and imposed and stayed a parole
revocation fine of $300 under section 1202.45 even though the
court did not orally pronounce either fine at the hearing. The
fines are also reflected in the abstract of judgment.
Appellant and respondent agree that we can and should
strike from the minute order the erroneous statement that
appellant and counsel admitted the probation violation. The
parties differ, however, on the appropriate remedy for the
statements concerning the fines. Appellant asks us to strike
these statements, while respondent argues that we should
remand so the trial court may consider whether to impose the
fines or make findings that doing so is not warranted. We
conclude remand is not appropriate in this case because
respondent waived the issue by failing to object below. We order
the erroneous statement and fines stricken from the minute order
and abstract of judgment. We otherwise affirm the judgment.
BACKGROUND
On September 6, 2019, the Los Angeles County District
Attorney (the People) filed a felony complaint charging appellant
with one count of grand theft of an automobile, a golf cart (§ 487,
subd. (d)(1)), and one count of driving or taking a vehicle—the
golf cart—without the consent of its owner (Veh. Code, § 10851,
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
subd. (a)). The complaint also alleged several priors, including
two strike offenses. (§§ 666.5, 667, subds. (b)-(j), 667.5, subd. (b),
1170.12.)
Appellant pled no contest to the grand theft charge on
September 25, 2019. The court dismissed the other charge and
allegations pursuant to the parties’ plea agreement. The court
suspended imposition of sentence and placed appellant on formal
probation for three years, subject to terms and conditions
including a requirement to “obey all laws and orders of the court.”
After a subsequent hearing, the court ordered appellant to “not
own, possess, or have under his . . . custody or control, firearms
that must be relinquished.”
On February 13, 2020, the court revoked appellant’s
probation and set the matter for a probation violation hearing.
On March 16, 2020, the court held a preliminary hearing on a
felony complaint stemming from a shooting incident that gave
rise to the alleged probation violation. At the conclusion of the
preliminary hearing, the court held appellant to answer for
discharging a firearm in a grossly negligent manner (§ 246.3,
subd. (a)), possession of a firearm by a felon (§ 29800, subd.
(a)(1)), and battery (§ 242).
The court held the probation violation hearing on June 23,
2020. At the outset of the hearing, the People offered to drop the
pending charges if appellant admitted to violating his probation
by possessing a gun. Appellant’s counsel informed the People
and the court, “I don’t think he wants to admit he was on
probation violation of a gun.” The court responded, “If you don’t
want to admit, you don’t have to admit. So let’s go ahead and do
the violation.”
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The parties then stipulated to enter the reporter’s
transcript of the March 16, 2020 preliminary hearing into
evidence. Neither the People nor appellant presented any further
evidence. After hearing argument, the court found that appellant
violated the terms of his probation by possessing a firearm. The
court then terminated appellant’s probation and sentenced him to
the high term of three years on the underlying grand theft
offense. The court awarded appellant 462 days of custody credit
and, on the People’s motion, dismissed the open case against him.
The court also stated, “[t]he remaining fees are terminated.” The
court did not say anything about restitution fines. Neither party
called the omission to its attention.
The minute order filed after the June 23, 2020 hearing
contained the following statements: “Defendant and counsel
admit to violation of probation in open court.” “The defendant is
to pay a restitution fine pursuant to section 1202.4(b) Penal Code
in the amount of $300.” “Defendant is to pay a parole restitution
fine, pursuant to Penal Code section 1202.45, in the amount of
$300.00 said [sic] fine is stayed and the stay is to become
permanent upon successful completion of parole.” Both $300
fines were also listed on the abstract of judgment filed on July 7,
2020.
Appellant timely filed a notice of appeal.
DISCUSSION
I. Erroneous Statement Regarding Admission
Appellant first contends, and respondent agrees, that the
minute order inaccurately states that he and his counsel
admitted the probation violation. We agree this statement
conflicts with the reporter’s transcript and order it stricken.
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When a reporter’s transcript and clerk’s transcript contain
discrepancies that cannot be reconciled, “the part of the record
that will prevail is the one that should be given greater credence
in the circumstances of the case.” (People v. Pirali (2013) 217
Cal.App.4th 1341, 1346, citing People v. Harrison (2005) 35
Cal.4th 208, 226.) The record in this case indicates that the
reporter’s transcript, which documents not only appellant’s
refusal to admit the violation but also an ensuing contested
hearing, should be given credence over the minute order
suggesting that no such hearing was held. It follows that the
statement in the minute order that “Defendant and counsel
admit to violation of probation in open court” is the result of a
clerical error.
“It is not open to question that a court has the inherent
power to correct clerical errors in its records so as to make these
records reflect the true facts.” (In re Candelario (1970) 3 Cal.3d
702, 705.) Here, the true facts evidenced by the reporter’s
transcript and agreed upon by the parties are that appellant
declined to admit he violated probation, and the court found he
did only after considering evidence and hearing argument from
the parties. We accordingly order the sentence “Defendant and
counsel admit to violation of probation in open court” stricken
from the minute order.
II. Erroneously Recorded Fines
Appellant contends that the minute order and abstract of
judgment erroneously reflect that the court imposed a $300
restitution fine under section 1202.4, subdivision (b) and a $300
parole revocation restitution fine under section 1202.45. He
requests that we strike the fines from the minute order and
abstract of judgment. Respondent agrees that the minute order
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and abstract of judgment are in error, but requests that we
remand the matter so the court may “determine and orally
pronounce whether it is imposing the restitution and parole
revocation fines, pursuant to sections 1202.4 and 1202.45, or
state compelling reasons for not imposing the fines.” Respondent
further requests that we direct the court to impose a court
security fee (§ 1465.8) and conviction assessment fee (Gov. Code,
§ 70373) on remand.
Section 1202.4, subdivision (b) provides: “In every case
where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record.” (§ 1202.4.) The amount of any
restitution fine imposed lies within the court’s discretion, but for
felony convictions “shall not be less than three hundred dollars
($300) and not more than ten thousand dollars ($10,000).” (§
1202.4, subd. (b)(1).) Section 1202.45 further requires the court
to, “at the time of imposing the restitution fine pursuant to
subdivision (b) of Section 1202.4, assess an additional parole
revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4,” if the defendant’s
sentence includes a period of parole. (§ 1202.45, subd. (a).) In
other words, both fines must be imposed in a minimum amount of
$300 “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.’” (People v. Tillman (2000) 22
Cal.4th 300, 302 (Tillman).)
Restitution fines are considered part of the trial court’s
judgment. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) A
trial court is generally required to include all aspects of a
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judgment in its oral pronouncement of judgment. (People v. Leon
(2020) 8 Cal.5th 831, 855.) “Any discrepancy between the
judgment as orally pronounced and as recorded in the clerk’s
minutes or abstract of judgment is presumed to be the result of
clerical error. [Citation.] The abstract of judgment ‘does not
control if different from the trial court’s oral judgment and may
not add to or modify the judgment it purports to digest or
summarize.’” (Ibid., quoting People v. Mitchell (2001) 26 Cal.4th
181, 185.) Thus, when an oral judgment differs from a minute
order or an abstract of judgment, the oral judgment takes
precedence.
Here, the court did not orally impose restitution fines
under section 1202.4 or 1202.45. The minute order and abstract
of judgment indicating otherwise accordingly are in error. We
agree with appellant that we may correct this error by striking
the fines from the minute order and abstract of judgment and
reject respondent’s request for remand to afford the trial court
another opportunity to orally impose the fines.
We find Tillman, supra, 22 Cal.4th 300 instructive and
controlling.2 In Tillman, as here, the trial court failed to impose
2Tillman was decided on February 24, 2000, after the
January 1, 2000 initial effective date of section 1202.46, and
therefore was not legislatively overruled by it. (People v. Turrin
(2009) 176 Cal.App.4th 1200, 1208 fn. 3.) Section 1202.46
provides: “Notwithstanding Section 1170, when the economic
losses of a victim cannot be ascertained at the time of sentencing
pursuant to subdivision (f) of Section 1202.4, the court shall
retain jurisdiction over a person subject to a restitution order for
purposes of imposing or modifying restitution until such time as
the losses may be determined. This section does not prohibit a
victim, the district attorney, or a court on its own motion from
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the restitution fines and did not state on the record its reasons
for not imposing them. (Id. at p. 303.) The defendant appealed
the judgment, and while the case was pending the prosecution
asked the court of appeal to amend the judgment to add the fines.
(See id. at p. 302.) The court of appeal did so, and the Supreme
Court reversed, concluding that “the waiver doctrine bars the
People from obtaining the relief they seek on appeal.” (Ibid.)
Tillman quoted and emphasized People v. Scott (1994) 9
Cal.4th 331, 353, in which it previously held that defendants may
waive their right to challenge on appeal a trial court’s failure to
properly make or articulate discretionary sentencing decisions by
failing to object in the trial court: “‘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. Routine defects in
the court’s statement of reasons are easily prevented and corrected
if called to the court’s attention. As in other waiver cases, we
hope to reduce the number of errors committed in the first
instance and preserve the judicial resources otherwise used to
correct them.’ (People v. Scott, supra, 9 Cal.4th at p. 353, italics
added.)” (Tillman, supra, 22 Cal.4th at p. 303.) The Court then
explained that “[t]he same rationale applies in this case. The trial
court here failed to state on the record its reasons for not
imposing the restitution fines; the Scott trial court failed to state
on the record its reasons for making a discretionary sentencing
choice, a finding required by section 1170. In Scott, we held the
defendant’s objection to the trial court’s omission had been
requesting correction, at any time, of a sentence when the
sentence is invalid due to the omission of a restitution order or
fine pursuant to Section 1202.4.”
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waived by the failure to make it at the time of sentencing. Here,
we conclude the People’s failure to object leads to the same
result.” (Ibid.)
As in Tillman, the court here erred by failing to comply
with sections 1202.4, subdivision (b) and 1202.45, subdivision (a),
which required it to either impose the fines or state its reasons
for declining to do so. The court did neither. Tillman holds that
this type of error3 is not correctable on appeal unless timely
brought to the trial court’s attention. Nothing in the appellate
record indicates that any such objection was made. Thus, to the
extent respondent seeks to correct the error by affording the trial
court another opportunity to impose the fines on remand, the
waiver doctrine bars it from doing so. The time to object to the
lack of fines or absence of reasons for not imposing the fines was
in the trial court, not on appeal.
Respondent accurately contends that People v. Zackery
(2007) 147 Cal.App.4th 380 (Zackery) suggests otherwise. In
Zackery, as here, the minute order issued after a sentencing
hearing inaccurately stated that the trial court orally imposed
restitution fines under sections 1202.4 and 1202.45. (Zackery,
supra, 147 Cal.App.4th at p. 388.) The Attorney General urged
the appellate court to presume the trial court recognized its error
in failing to impose mandatory restitution fines and, in
conformance with section 1202.46, directed the clerk to correct
the minutes by including the fines. (See ibid.) The appellate
court rejected this argument in part, concluding that the trial
3The errors in the minute order and abstract of judgment
are not of this type, as nothing in the record suggests that
appellant had an opportunity to call them to the attention of the
court without resorting to the appeal process.
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court could not make such a correction without pronouncing the
judgment orally in the presence of the defendant. (Ibid.) The
appellate court ordered the fines stricken from the minutes and
abstract of judgment, but nevertheless “remand[ed] the case to
the trial court to determine whether to impose restitution [fees].”
(Id. at p. 389.)
Respondent asserts that, under Zackery, “it is evident that
this case should be remanded to the trial court for it to determine
and orally pronounce whether it is imposing the restitution and
parole revocation fines, pursuant to sections 1202.4 and 1202.45,
or state compelling reasons for not imposing the fines.” Yet
neither Zackery nor respondent acknowledges Tillman, by which
we are bound unless and until it is overruled.4 (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) We apply
Tillman here, not Zackery, and order the fines stricken from the
minute order and abstract of judgment.
Because we conclude remand is not an appropriate remedy
in this case, we necessarily reject respondent’s request to direct
the trial court to impose additional fees under section 1465.8 and
Government Code section 70373 on remand.
4Appellant also fails to cite Tillman. He instead relies
primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 to
argue that striking the fines from the minute order and abstract
of judgment “will not result in an unauthorized sentence, as this
restitution fine is not mandatory in all cases.” In his reply brief,
appellant argues that respondent has forfeited the ability to
challenge the trial court’s decisions regarding the fines, but he
does not cite Tillman in support thereof.
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DISPOSITION
We direct the superior court clerk to correct the minute
order of the probation revocation hearing by deleting the
sentence stating, “Defendant and counsel admit to violation of
probation in open court.” We further direct the clerk to correct
both the minute order of the probation revocation hearing and
the abstract of judgment to reflect that no restitution fines were
imposed, and to forward an amended abstract of judgment to the
Department of Corrections and Rehabilitation. The judgment is
affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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