People v. Green CA1/1 ( 2023 )


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  • Filed 12/7/23 P. v. Green CA1/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
    certified for publication or ordered published for purposes of rule 8.1115.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
    FIRST APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,
    Plaintiff and Respondent,                          A167528
    v.                                                            (Napa County Super. Ct.
    DEMONE LEE GREEN, SR.,                                        No. 21CR001550)
    Defendant and Appellant.
    Defendant Demone Lee Green, Sr. appeals a two-year sentence imposed
    by the trial court after Green pleaded no contest to one felony count of
    carrying a dirk or dagger and admitted a prior strike. Green’s appointed
    appellate counsel filed a brief pursuant to People v. Wende (1979) 
    25 Cal.3d 436
     (Wende), identifying no issues and requesting that this court review the
    record and determine whether any arguable issue exists on appeal. Having
    done so, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND1
    Around 12:30 a.m. on May 31, 2021, Napa County Deputy Sherriff
    Angel Maldonado observed a grey Acura on State Route 29 without a license
    The factual summary in this case is taken from the related police
    1
    report, which ultimately formed the factual basis for Green’s plea.
    1
    plate. When the deputy initiated a traffic stop, he learned that Green, who
    had been driving the vehicle, was on parole for assault with a deadly weapon
    (a knife). After Green was detained and removed from the vehicle, a search
    of his person disclosed a folding knife in the locked/open position concealed in
    his rear back pocket. A methamphetamine pipe was also located in the
    driver’s side map pocket of the vehicle. Green was arrested.
    On September 16, 2021, the Napa County District Attorney filed an
    information, charging Green with felony carrying of a dirk or dagger (Pen.
    Code,2 § 21310, count 1) and misdemeanor possession of drug paraphernalia
    (Health & Saf. Code, § 11364, count 2). Count one was enhanced with
    allegations that Green previously had been convicted of a serious or violent
    felony within the meaning of section 667, subdivisions (b) through (i) (e.g.,
    § 245, subd. (a)(1), 12022.7). Green (who was on supervised release) waived
    his right to a speedy trial, and several continuances were granted so that
    defense counsel could explore the possibility of drug court, the impact of new
    legislation, and Green’s history of childhood trauma and mental illness for
    use in a possible diversion motion or for sentencing mitigation.
    On October 31, 2022, defense counsel filed a pleading entitled
    “Biographical and Mitigating Information Relevant to Settlement
    Discussions.” On November 2, 2022, the Napa County District Attorney filed
    the operative amended information in this case, which, in addition to the
    allegations from the original information, added numerous alleged
    circumstances in aggravation under California Rules of Court rule 4.421,
    including that Green was armed with a weapon and that his prior
    performance on parole was unsatisfactory. On November 4, 2022—after
    executing a waiver of rights and plea form—Green pleaded no contest to
    2 All undesignated statutory references are to the Penal Code.
    2
    count one and admitted the prior strike allegation. Pursuant to the plea,
    Green’s maximum period of incarceration was set at 32 months. Count two
    and the special allegations in aggravation were dismissed with a Harvey3
    waiver. The trial court found Green’s waivers to be knowing and voluntary.
    Prior to sentencing, defense counsel submitted a sentencing statement
    and Romero4 motion, requesting that the court exercise its discretion to strike
    Green’s prior strike. The prosecution opposed the motion, arguing that Green
    should be sentenced to the maximum of 32 months in prison based on the
    seriousness of his conviction history. At the sentencing hearing on January
    23, 2023, the trial court struck Green’s prior conviction but denied probation,
    stating that Green’s prior performance on parole had been “horrendous.”
    Thereafter, noting Green would qualify for half time since it struck the strike,
    the court sentenced Green to the mid-term of two years. It ordered one day of
    custody credit, imposed a restitution fine of $300 (§ 1202.4), and imposed and
    stayed a parole revocation fine of $300 (§ 1202.45). This timely appeal
    followed.
    DISCUSSION
    As discussed above, Green appeals from the trial court’s January 2023
    sentencing order made after he pleaded no contest to felony carrying of a dirk
    or dagger and admitted a prior strike. We appointed counsel to represent
    Green on appeal. After examining the record, counsel filed a Wende brief
    raising no issues and requesting that we independently review the record.
    (Wende, supra, 
    25 Cal.3d 436
    , 441; see also People v. Kelly (2006) 
    40 Cal.4th 106
    , 109–110.) Green was advised by his attorney of the opportunity to file a
    supplemental brief with this court, but he has not done so.
    3 People v. Harvey (1979) 
    25 Cal.3d 754
    .
    4 People v. Superior Court (Romero) (1996) 
    13 Cal.4th 497
    .
    3
    We have examined the entire record and are satisfied that Green’s
    attorney has complied with his responsibilities and that no arguable issue
    exists. We do note that the sentencing minute order and the abstract of
    judgment indicate that the court imposed a court security fee of $40
    (§ 1465.8) and a criminal conviction assessment of $30 (Gov. Code, § 70373)
    in this case, as recommended by probation. The reporter’s transcript, in
    contrast, discloses that the trial court did not orally impose these two fees.
    Generally, when there is a discrepancy between a written record of the
    judgment and the oral pronouncement, “the oral pronouncement controls.”
    (People v. Gabriel (2010) 
    189 Cal.App.4th 1070
    , 1073.) However, these fees
    are mandatory, and Green failed to object to them—or indeed to any fees—at
    sentencing on grounds of inability to pay. He has therefore forfeited the
    issue. (People v. Lowery (2020) 
    43 Cal.App.5th 1046
    , 1054.) Under the
    circumstances, we will deem the minute order and abstract of judgment to
    prevail over the reporter’s transcript. (See People v. Cleveland (2004) 
    32 Cal.4th 704
    , 768; see also People v. Talibdeen (2002) 
    27 Cal.4th 1151
    , 1157
    [where trial court fails to impose a mandatory fee or assessment, appellate
    court may do so on appeal].)
    In contrast, as stated above, the trial court orally imposed a restitution
    fine of $300 (§ 1202.4) and imposed and stayed a parole revocation fine of
    $300 (§ 1202.45), and the minute order memorializes this fact. The abstract
    of judgment, however, does not reflect these fines. We will therefore issue a
    limited remand so that the trial court can correct this error in the abstract of
    judgment.
    4
    DISPOSITION
    The case is remanded to the trial court with instructions to the court
    clerk to amend the abstract of judgment to reflect the imposition of the $300
    restitution fine (§ 1202.4) and the $300 imposed and stayed parole revocation
    fine (§ 1202.45). The clerk shall forward a copy of the amended abstract to
    the Department of Corrections and Rehabilitation. The judgment is
    otherwise affirmed.
    5
    GETTY, J.
    WE CONCUR:
    MARGULIES, ACTING P.J.
    BANKE, J.
    A167528N
    
    Judge of the Solano County Superior Court, assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    6
    

Document Info

Docket Number: A167528

Filed Date: 12/7/2023

Precedential Status: Non-Precedential

Modified Date: 12/7/2023