P. v. Woods CA3

Filed 5/20/13 P. v. Woods CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C072025
Plaintiff and Respondent, (Super. Ct. No. CRF12896)
v.
TINA MARIE WOODS,
Defendant and Appellant.
Defendant Tina Marie Woods pleaded no contest to second degree burglary and
possessing methamphetamine. The abstract of judgment reflects a drug program fee, plus
assessments, totaling $600.
On appeal, defendant asks that we order the abstract of judgment corrected to
accurately reflect the sentence pronounced by the court. The People oppose the request
and seek remand. We shall order correction of the abstract of judgment.
BACKGROUND
Defendant entered an auto parts store with the intent to commit theft and
possessed methamphetamine. She entered a negotiated plea of no contest to charges of
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second degree burglary and possession of methamphetamine, and admitted a prior
conviction.
The presentence probation report did not recommend that the trial court order a
drug program fee, and the trial court did not orally impose such a fee at sentencing.
The abstract of judgment, however, contains a $150 drug program fee (Health & Saf.
Code, § 11372.7) and its attendant penalties, assessments and surcharges, which total
$600.
DISCUSSION
Where the abstract of judgment differs from the court’s oral pronouncements, the
oral pronouncement of judgment controls. (People v. Delgado (2008) 43 Cal.4th 1059,
1070; People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).) “The clerk cannot
supplement the judgment the court actually pronounced by adding a provision to the
minute order [or] the abstract of judgment. [Citation.]” (People v. Zackery (2007)
147 Cal.App.4th 380, 387-388.)
Errors in the abstract of judgment may be corrected by this court on appeal.
(Mitchell, supra, 26 Cal.4th at p. 185; People v. Garcia (2008) 162 Cal.App.4th 18, 24,
fn. 1.) Accordingly, we shall order the abstract of judgment corrected to delete all
references to the $150 drug program fee.
Although the People seek remand, because imposition of the drug program fee is
based on defendant’s ability to pay (Health & Saf. Code, § 11372.7, subd. (b)), on a silent
record, as here, we presume the trial court found defendant did not have the ability to pay
the fee. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment deleting the Health and Safety Code section 11372.7 drug program
fee and each of its attendant assessments, fees and surcharges, and to forward a certified
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copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MURRAY , J.
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