Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071144
McAdams, J.
Defendant pleaded no contest to a felony, spousal rape, and a misdemeanor, driving with a blood alcohol level over the legal limit. (Pen. Code, § 262, subd. (a)(1); Veh. Code, § 23152, subd. (b).) Defendant was sentenced to state prison for six years and the court orally imposed a restitution fine of $600, among other fines and fees. However, the minute order and abstract of judgment reflect a restitution fine of $1,200.00. Defendant’s sole contention on appeal is that the court’s oral pronouncement of judgment controls over the minute order and abstract of judgment, and the minute order and abstract must be corrected. The Attorney General agrees in this case. For the reasons discussed below, we shall direct the clerk of the superior court to modify the judgment to reflect the court’s orally pronounced judgment. As modified, we affirm.
The facts are drawn from the preliminary hearing transcript and the probation report.
During the night of March 9, 2007, defendant came to bed, where his wife was sleeping, and wanted to have sex with her. She told him she did not want to have sex. He forced her to have sex with him anyway.
When the defendant came home from work later than evening, defendant’s wife called the police. When the police arrived, she told them that defendant had just left and was driving under the influence. While police were talking to the wife, defendant returned. When he was approached by a police officer, defendant was seated in his car and was drinking out of a beer bottle. He appeared to be under the influence of alcohol and was arrested. Breath tests administered at the police station registered a blood alcohol level of 0.12 and 0.14 percent.
DISCUSSION
At the sentencing hearing held on December 19, 2007, the court stated: “Defendant would be ordered to pay restitution [sic] in the amount of $600 plus the defendant to pay restitution fine in the same amount assessed pursuant to 1202.4(b) suspended unless parole is revoked. … Restitution to the victim the amount to be determined by the probation department.”
Preliminarily, we note that the parties implicitly agree that by this statement the trial court intended to, and did, impose a restitution fine of $600, selected pursuant to its discretionary power to choose a restitution fine between $200 and $10,000 conferred by Penal Code section 1202.4, subdivision (b)(1). They also agree the court imposed a parole revocation restitution fine in the same amount as required by Penal Code section 1202.45. We concur in this assessment of the court’s order. The minute order and abstract of judgment, however, reflect a restitution fine and parole revocation restitution fine of $1,200.
Penal Code section 1202.4, subdivision (b)(1) provides: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.”
Defendant argues that the minute order and the abstract of judgment must be corrected to reflect the lower amount, citing the rule that the record of the oral pronouncement of the court controls over the clerk’s minute order and abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The Attorney General will agree only that that the reporter’s transcript usually controls over the clerk’s transcript; however, the clerk’s transcript may at times be more reliable than the reporter’s transcript and, under such circumstances, should control. (People v. Cleveland (2004) 32 Cal.4th 704, 768 [correct minute order and abstract of judgment prevail over incorrect statement by court in reporter’s transcript].) However, in this case, he agrees that the reporter’s transcript accurately reflects the court’s oral pronouncement of judgment, having checked, he tells us, with the district attorney.
The district attorney’s views are nowhere reflected in the appellate record, and we therefore must proceed as if the Attorney General had never brought them to our attention. We agree, however, that nothing in the record on appeal suggests that the reporter’s transcript inaccurately reflects the court’s oral pronouncement, even though its express order selecting a $600 restitution fine was at odds with the probation department’s recommendation. The court was clearly empowered to disagree with that recommendation and it did, so far as the reporter’s transcript shows.
“Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.] [¶] It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.] However, section 1213 provides that when a court pronounces a judgment of probation or imprisonment in the state prison, either a certified copy of the minute order or a certified abstract of the judgment ‘shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution.’ Under this statute, ‘the certified abstract of the judgment constitutes the commitment. [Citations.] It is thus the order sending the defendant to prison and “the process and authority for carrying the judgment and sentence into effect.” ’ ” (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
As amended effective January 1, 2008, Penal Code section 1213, subdivision (a) provides: “(a) When a probationary order or a judgment, other than of death, has been pronounced, a copy of the entry of that portion of the probationary order ordering the defendant confined in a city or county jail as a condition of probation, or a copy of the entry of the judgment, or, if the judgment is for imprisonment in the state prison, either a copy of the minute order or an abstract of the judgment as provided in Section 1213.5, certified by the clerk of the court, and a Criminal Investigation and Identification (CII) number shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution.”
We will therefore apply the general rule that the record of the oral pronouncement of the court controls over the clerk’s minute order and the abstract of judgment, and direct the trial court to amend the minute order and abstract to reflect a restitution fine of $600 and a parole revocation restitution fine in the same amount.
CONCLUSION
The reporter’s transcript reflects the court’s oral pronouncement of a restitution fine of $600 and a parole revocation restitution fine in the same amount, and that oral pronouncement controls over the minute order and abstract of judgment showing such fines in the amount of $1,200.
DISPOSITION
The clerk of the superior court is directed to modify the minute order and the abstract of judgment to reflect the imposition of a $600 restitution fine and a $600 parole revocation restitution fine, pursuant to Penal Code sections 1202.4 and 1202.45. The clerk is to then to forward a copy of the amended abstract of judgment to the California Department of Corrections. As amended, the judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.