P. v. Melendrez CA5 ( 2013 )

Filed 7/19/13 P. v. Melendrez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F065490
Plaintiff and Respondent,
(Super. Ct. No. VCF248412)
v.
LORENZO EDUARDO MELENDREZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
Gregory L. Cannon, 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, Louis M. Vasquez and Charity
S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Wiseman, Acting P.J., Levy, J. and Peña, J.
This appeal involves a discrepancy between the reporter’s transcript of the
sentencing hearing and the minute order arising from that hearing. In keeping with the
general rule, we adopt the trial court’s oral pronouncement as the intended sentence and
modify the judgment accordingly. As modified, the judgment will be affirmed.
FACTS AND PROCEDURAL HISTORY
On February 10, 2011, defendant and appellant Lorenzo Eduardo Melendrez fired
a gun at a car occupied by the victims, indentified as M.M. and B.G. Subsequently,
defendant pled no contest to charges of shooting at an occupied vehicle (count I, Pen.
Code, § 246); assault with a semiautomatic firearm on M.M. (count II, Pen. Code, § 245,
subd. (b)); and assault with a semiautomatic firearm on B.G. (count III, ibid.). As to
counts II and III, defendant admitted that he personally used a firearm during the
commission of the offense (Pen. Code, § 12022.5, subd. (a)). (Each of the three counts
was alleged to be a serious and violent felony under the “Three Strikes” law.) Defendant
was sentenced to an operative prison sentence of six years. The court imposed a
restitution fine of $2,600. (Pen. Code, § 1202.4.) It imposed and stayed a parole
revocation restitution fine of $3,600. (See id., § 1202.45.) The minute order and the
abstract of judgment, however, both indicated that the court had imposed a restitution
fine of $3,600.
DISCUSSION
Defendant contends, and respondent agrees, 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. (See People v. Mitchell (2001) 26 Cal. 4th
181, 185.) Accordingly, both parties request that this court modify the minute order to
conform to the oral pronouncement of judgment, and we will do so.
Defendant also contends, and respondent agrees, that the parole revocation
restitution fine required by Penal Code section 1202.45 is, by the terms of the statute,
required to be in the same amount as the restitution fine imposed under Penal Code
2.
section 1202.4. Both parties request that we modify the minute order to conform to that
requirement, and we will correct the unauthorized sentence by doing so.
DISPOSITION
The minute order of May 31, 2012, is modified to reflect the imposition of a
restitution fine in the sum of $2,600 pursuant to Penal Code section 1202.4. The minute
order of May 31, 2012, is further modified to impose a parole revocation restitution fine
in the sum of $2,600 pursuant to Penal Code section 1202.45. As modified, the judgment
is affirmed. The trial court shall cause the preparation of an amended abstract of
judgment reflecting these modifications, which it shall transmit to the appropriate
authorities.
3.