Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC623887
Duffy, J.
With no promises having been made as to a specified prison term or other disposition, defendant Derick Anthony Mitchell, a habitual offender, pleaded guilty to one count of making criminal threats in violation Penal Code section 422. He also admitted three prior strike allegations, three prior serious felony allegations, and four prior prison term allegations. The court, which expressed the intention to sentence defendant to the minimum term possible, dismissed the three prior strikes and the prison priors and sentenced defendant to a mitigated term of 16 months on the criminal threats charge and three consecutive five-year terms for his prior serious felony convictions, for a total prison term of 16 years, four months. In addressing the restitution fund fine and parole revocation fine under sections 1202.4, subdivision (b), and 1202.45, respectively, the court stated its intention to modify the maximum $10,000 that had been recommended for each fine in the probation report. But the court then omitted any mention of the amount of the fines that it actually intended to impose. Both the clerk’s minute order and the abstract of judgment reflect the maximum fines of $10,000 each, the latter fine imposed but suspended.
Further unspecified statutory references are to the Penal Code.
Defendant appeals and respondent concedes that the court failed to state the amount of fines it intended to impose. We accept the concession and reverse the judgment with directions for the trial court on remand to specify the amount of the restitution fund fine under section 1202.4, subdivision (b), and the parole revocation fine under section 1202.45. The abstract of judgment shall then be amended to reflect the actual amount of the fines imposed.
STATEMENT OF THE CASE
We take the facts from the preliminary hearing transcript, the transcript of the hearing on defendant’s Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)), and the probation report.
We set out the facts only briefly as they are not germane to the issue on appeal. On March 17, 2006, defendant was at the Alamo Club in San Jose, a place where members of Alcoholics Anonymous gather and attend meetings. While there, defendant got into an altercation with “his ‘girlfriend,’ a male who dressed as a female.” Police arrived and ordered him to leave, which he did, carrying a backpack that contained some of his girlfriend’s belongings. A group of people followed defendant in order to retrieve the backpack and roughed him up.
Defendant was upset and returned to the Alamo Club entrance. He knew a person who worked there and while stating that he had a gun and simulating the presence of a gun in his pocket, defendant requested that person, Ray Chism, who was blocking defendant’s reentry into the Club, to leave so he could “ ‘handle his business.’ ” Chism took this to mean that defendant wanted him out of the way so that defendant could reenter the Club and confront either his girlfriend or one of the people who had beaten him. Defendant threatened to shoot or hurt his girlfriend and one of his attackers. Defendant also threatened to shoot Chism if he did not tell defendant where defendant’s girlfriend was. Believing that defendant had a gun, Chism went inside the Club and directed that the police be called. Chism went back outside and told a frustrated defendant that his girlfriend was not inside the Club. Police again responded and this time detained defendant, who was yelling. The officers asked defendant if he had a gun and he aggressively replied, “ ‘Do I look like I have a[n] f---in[’] gun?’ ” Defendant was arrested. He had no gun or other weapon in his possession.
This, according to a police officer who responded to the scene. At the preliminary hearing and at the hearing on defendant’s Romero motion, Chism denied that defendant had threatened him or that he had been in fear of his own safety.
II. Procedural Background
Defendant was charged by information with one count of making criminal threats in violation of section 422. The information also alleged that defendant had been convicted of three prior serious felonies that qualified as strikes within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, and three prior serious felonies that supported sentence enhancements under section 667, subdivision (a)(1), and that he had four prior felony convictions for which he had served prison terms within the meaning of section 667.5, subdivision (b).
Just before trial, and after receiving proper advisements concerning his constitutional rights and the consequences of his plea, defendant pleaded guilty to the single charge and admitted all three prior strikes, all three prior serious felonies, and all four prior prison terms. Before his change of plea, the court made clear that “no promises” had been made about the disposition of the matter, which was entirely up to the court to be determined within applicable legal parameters. The court also made clear that, while it was remaining “open to the disposition” of the case and had not yet decided an appropriate sentence, it did not perceive this to be “a life case,” referring to the maximum sentence to which defendant was exposed. The court further expressed that it had some question about whether the case even warranted the remaining sentencing options to which the court was limited given all of the enhancement allegations. The court ordered a probation report.
Before sentencing, defendant filed a Romero motion to dismiss his three prior strike convictions in the interests of justice under section 1385 and to grant him probation. The People opposed the motion. After identifying the many factors it considered on the motion, the court dismissed the three prior strike convictions, struck the four prison priors, and imposed the lower term of 16 years, four months (one year, four months for the substantive charge plus three consecutive 5-year terms for the prior convictions under section 667, subdivision (a)(1)).
With respect to a restitution fine under section 1202.4, subdivision (b), the probation report recommended the maximum of $10,000, with a parole revocation fine under section 1202.45 in like amount to be imposed but suspended. But at sentencing, the court said, “A restitution fund fine, 1202 (b), imposed according to law. And that will be a modification of 10,000 that was previously indicated. [¶] An additional restitution fund fine of that amount equal to that [sic] will be imposed under 1202.4, . . . and suspended.” The court never indicated the amount of these fines that it intended to impose. And despite the court’s statements concerning restitution, the clerk’s minutes from the hearing, which took place on November 29, 2006, reflect that the maximum restitution fund fine of $10,000, along with a parole revocation fine in the same amount, was imposed.
It is clear that the court misspoke in citing the Penal Code section numbers to which it was referring and that the correct sections are 1202.4, subdivision (b), and 1202.45, respectively.
Defendant filed his first notice of appeal “from the order or judgment entered on November 29, 2006.” The court then held another hearing on December 18, 2006, to make sure “that the minimum that [it] could have given [defendant], was, indeed, what [it] gave him” and to calculate defendant’s “[updated] credits.” An abstract of judgment was then filed, which reflected a restitution fine and a parole revocation fine of $10,000 each. After that, defendant, acting on his own behalf, filed a second notice of appeal from the “order or judgment entered on November 29, 2006,” and requested a certificate of probable cause, which the trial court granted. Defendant, through counsel, then filed a third notice of appeal from “the judgment and sentence entered . . . on November 29, 2006.” A second abstract of judgment was then filed with the same indication as to the amount of the fines. Defendant filed a fourth notice of appeal, this time from “the order of December 18, 2006,” which we will consider operative here.
DISCUSSION
Defendant contends that it is apparent from the court’s oral pronouncement at sentencing that it intended to impose restitution fund and parole revocation fines in an amount less than the $10,000 maximum authorized and that the clerk’s minutes and the abstracts of judgment erroneously reflect fines of $10,000 each. He further contends that it is unclear from the record just what amount of fines the court actually intended to impose, but that the court’s oral pronouncement controls over the minutes and the abstract. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Respondent agrees and concedes the point. The reporter’s transcript indeed makes clear that the court intended to impose lower fines, but the record does not reveal the amount of fines the court had in mind, precluding our ability to modify the abstract of judgment to state the correct amounts. Moreover, the court made clear that it was imposing the minimum sentence possible, suggesting that it may not have intended to impose the restitution fund fine in the optional statutory formula amount provided at section 1202.4, subdivision (b)(2), but to impose a lower amount in its discretion. We accordingly accept respondent’s concession and remand the cause for the trial court to state the amount of the restitution fund and parole revocation fines intended.
DISPOSITION
The judgment is reversed and remanded to the trial court with directions to state the amount of the restitution fund fine imposed under section 1202.4, subdivision (b), and the parole revocation fine imposed but suspended under section 1202.45. The abstract of judgment is to be amended to reflect the correct amount of these fines as indicated by the trial court.
WE CONCUR:
Bamattre-Manoukian, Acting P.J., Mihara, J.