People v. Green CA1/1 ( 2023 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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
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report, which ultimately formed the factual basis for Green’s plea.
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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.
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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.
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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.
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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.
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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.
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