Opinion
C082052
02-03-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALFONSO DELGADILLO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-144234)
Defendant David Alfonso Delgadillo pleaded no contest to failing to register as a sex offender and admitted allegations that he had two prior convictions for failing to register. Defendant now contends (1) the trial court expressed its intention to impose the middle term, but misspoke and sentenced him to the upper term of three years rather than the middle term of two years; and (2) an incarceration fee must be stricken because it is unauthorized and it was not orally imposed by the trial court. The People agree with both contentions.
We will affirm the judgment and direct the trial court to correct the amended minute order and abstract of judgment to reflect the imposition of a two-year middle-term sentence in this case, and to strike the $118 incarceration fee from the amended minute order.
BACKGROUND
Defendant was convicted of child molestation (Pen. Code, § 647.6) and was required to register as a sex offender pursuant to section 290. In case No. 62-134437 he was subsequently convicted of felony failing to register (§ 290.013); the trial court imposed a four-year term but suspended execution of sentence and placed defendant on probation. In January 2016 defendant was incarcerated again but failed to register within five days of his release, resulting in the charges in the instant case.
Undesignated statutory references are to the Penal Code. --------
Defendant pleaded no contest to failing to register (§§ 290.015, subd. (a), 290.018, subd. (b)) and admitted allegations that he had two prior convictions for failing to register and had violated probation. The trial court revoked probation in case No. 62-134437 and executed the previously imposed four-year term in that case. As to the current case, case No. 62-144234, the trial court sentenced defendant to "the middle term of three years." The trial court said it selected the middle term based on the agreed upon disposition in this case. The term was to run concurrent with the sentence in case No. 62-134437. The trial court ordered defendant to pay a $300 restitution fine (§ 1202.4), a $300 parole revocation fine (§ 1202.45), a $40 court operation fee (§ 1465.8), and a $30 criminal assessment fee (Gov. Code, § 70373).
DISCUSSION
I
Defendant contends the trial court expressed its intention to impose the middle term, but misspoke and sentenced him to the upper term of three years rather than the middle term of two years.
The record indicates, and the parties agree, the trial court intended to impose the middle term in this case. The sentencing triad on a conviction under section 290.015 with enhancements under section 290.018, subdivision (b) is 16 months or two years or three years. (§ 290.018, subd. (b).) The middle term is two years.
Courts have inherent power to correct clerical errors in the minute order and abstract of judgment. (In re Candelario (1970) 3 Cal.3d 702, 705.) Clerical error includes "inadvertent errors made by the court 'which cannot reasonably be attributed to the exercise of judicial consideration or discretion.' " (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034; see Bowden v. Green (1982) 128 Cal.App.3d 65, 71.) By contrast, "judicial error is the deliberate result of judicial reasoning and determination" (Conservatorship of Tobias, at p. 1035), and can only be corrected by appropriate statutory procedure (People v. Jack (1989) 213 Cal.App.3d 913, 915).
This was a clerical error. The trial court exercised its discretion to impose the middle term but misspoke, indicating the middle term was three years when it was actually two years. We will direct the trial court to correct the amended minute order and abstract of judgment in case No. 62-144234 to reflect that defendant was sentenced to the middle term of two years for violating section 290.015, subdivision (a). (In re Candelario, supra, 3 Cal.3d at p. 705.)
II
Defendant next contends a $118 incarceration fee reflected in the minutes must be stricken because it is unauthorized and it was not orally imposed by the trial court.
The amended minute order reflects the imposition of an incarceration fee. The trial court did not impose the fee in its oral pronouncement of sentence and the fee is not reflected in the abstract of judgment. Where there is a discrepancy between the oral pronouncement rendering judgment and the minute order, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) The pronouncement of judgment is a judicial function, whereas preparation of the minutes and abstract of judgment are clerical functions; any inconsistency is presumed to be a clerical error. (Mesa, at p. 471.) Under our inherent authority to correct clerical errors (People v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Anthony (1986) 185 Cal.App.3d 1114, 1125-1126), we will direct the trial court to correct the amended minute order in case No. 62-144234 to strike the $118 incarceration fee.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the amended minute order and abstract of judgment in case No. 62-144234 to reflect the imposition of a two-year middle-term sentence, and to correct the amended minute order in case No. 62-144234 to strike the $118 incarceration fee.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
BUTZ, J.