People v. Hernandez CA4/2 ( 2021 )

Filed 3/17/21 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074760
v. (Super.Ct.No. BAF1901182)
JUSTIN PAUL HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed with directions.
David Zarmi, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
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On December 23, 2019, Justin Paul Hernandez pleaded guilty to possession of
methamphetamine for sale. (Health and Saf. Code, § 11378.) The court sentenced him to
16 months, doubled to 32 months for a prior strike conviction. (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12.) Hernandez timely appealed the judgment.
On appeal, Hernandez argues the minute order of his sentence does not conform
with the trial court’s oral pronouncement, and the case should be remanded to permit the
trial court to correct the error. Specifically, the minute order states the trial court
instructed Hernandez he was prohibited from owning or controlling firearms when it
didn’t actually do so. The People agree there is a discrepancy between the minute order
and the court’s oral pronouncement, but argue the error either does not need to be
corrected or that if it does we can do so on our own without remanding.
“In a criminal case, it is the oral pronouncement of sentence that constitutes the
judgment.” (People v. Scott (2012) 203 Cal. App. 4th 1303, 1324.) “Where 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. Zackery (2007) 147
Cal. App. 4th 380, 385.) “Courts may correct clerical errors at any time, and appellate
courts . . . that have properly assumed jurisdiction of cases,” may order these clerical
errors corrected. (People v. Mitchell (2001) 26 Cal. 4th 181, 185.)
Because there is no dispute that the minute order does not match the court’s oral
pronouncement, we find remand unnecessary and exercise our independent authority to
order the trial court to correct the minute order to conform with the court’s oral orders.
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DISPOSITION
We direct the trial court to correct the December 23, 2019 sentencing minute order
by striking the reference to the firearm prohibition. In all other respects, we affirm the
judgment. The trial court shall prepare a corrected minute order and forward a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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