Opinion
C085685
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. KASHIUS BRAZEAL-NELSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF17255)
Appointed counsel for defendant Kashius Brazeal-Nelson filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. However, we shall order a corrected abstract of judgment and state prison minute order to correct various clerical errors.
BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) The prosecutor recounted the factual basis for the plea during the plea hearing.
On the afternoon of January 12, 2017, defendant went to a minimart in West Sacramento. He pulled out a semiautomatic handgun, pointed it at the clerk, and demanded money from the cash register. The clerk complied, giving defendant approximately $600 in cash. Defendant was contacted a short time later and identified during a field show-up. He was carrying a semiautomatic firearm with a magazine; the chamber of the gun was empty. Defendant admitted robbing the store because he needed money. At the time, defendant had $238 on him.
Defendant was arrested and charged with second degree robbery. (Pen. Code, §§ 211, 212.5.) The complaint alleged that during the offense he personally used a firearm. (§ 12022.53, subd. (b).) Defendant pleaded no contest to the charge and admitted the firearm use allegation in exchange for a stipulated 12-year term in state prison. The court sentenced defendant to serve the stipulated 12-year term, consisting of the lower term of two years for the robbery and a consecutive 10-year term for the firearm enhancement. The court imposed a $300 restitution fine (§ 1202.4), a $30 restitution collection fee (§ 1202.4, subd. (l)), a $300 parole revocation restitution fine, stayed unless parole was revoked (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). Defendant was awarded 245 days of actual credit and 36 days of conduct credit for a total of 281 days of presentence credit. Defendant timely appealed.
Undesignated statutory references are to the Penal Code. --------
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we have received no communication from defendant.
After examining the record, we find no arguable error that would result in a disposition more favorable to defendant. However, we note several clerical errors in the abstract of judgment and the state prison minute order. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["Courts may correct clerical errors at any time, and appellate courts . . . 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"]; People v. Mesa (1975) 14 Cal.3d 466, 471 ["a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error"].) Both documents do not reflect various fees and fines imposed by the court when it pronounced judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200 ["All fines and fees must be set forth in the abstract of judgment"].)
The abstract of judgment does not reflect the $300 restitution fines ordered pursuant to sections 1202.4 and 1202.45, the latter being stayed unless parole was revoked. Nor does it reflect the 10 percent collection fee on the restitution fine ordered by the court. The abstract of judgment also does not reflect the mandatory $40 court operations assessment under section 1465.8 and the $30 criminal conviction assessment under Government Code section 70373, subdivision (a)(1), which the court orally imposed during pronouncement of judgment. Finally, the abstract does not indicate, by checking the box for section 2933.1, the 15 percent limitation on work time credits to which defendant was subject given his violent felony conviction for armed robbery. (§ 667.5, subd. (c).)
The state prison sentence minute order erroneously checks the box for a $300 restitution fine pursuant to section 1202.44, which applies when a defendant's sentence includes a period of probation. (§ 1202.44.) Because defendant was denied probation and his sentence will include a period of parole upon being released from prison, the box for a $300 parole revocation restitution fine under section 1202.45 should be checked instead.
We shall direct the trial court to correct the abstract of judgment and minute order to correct these clerical errors.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to correct the abstract of judgment to show the $300 restitution fine under Penal Code section 1202.45, the $30 restitution collection fee pursuant to Penal Code section 1202.4, subdivision (l), the $40 court operations assessment under Penal Code section 1465.8, the $30 criminal conviction assessment under Government Code section 70373, and that defendant was limited to 15 percent work time credit under Penal Code section 2933.1. The clerk is further directed to correct the state prison minute order to show the court imposed and stayed a $300 parole revocation restitution fine under Penal Code section 1202.45 rather than a probation revocation restitution fine under Penal Code section 1202.44. The court shall forward a certified copy of the corrected abstract of judgment and minute order to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MAURO, J.