Opinion
C091588
06-08-2021
THE PEOPLE, Plaintiff and Respondent, v. TODD ALAN FUTRAL, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. CR60728, CR61343
Duarte, J.
Appointed counsel for defendant Todd Alan Futral filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we have found a sentencing error and clerical errors in the abstract of judgment. We will modify the judgment to correct the sentencing error, direct correction of the clerical errors, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves two cases. In the first, case No. CR60728, California Highway Patrol officers stopped defendant while he was walking along a state route. The officers determined defendant had an outstanding warrant. One of the officers asked if defendant was carrying any weapons and defendant surrendered a knife. When the officers asked defendant to empty his pockets, defendant dropped envelopes with small plastic bags containing methamphetamine on the ground. The officers also discovered other methamphetamine paraphernalia.
The prosecution charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count I), carrying a dirk or dagger (Pen. Code, § 21310; count II), and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)(1); count III). Defendant then failed to appear for a hearing, resulting in case No. CR61343, in which the prosecution charged defendant with a single count for a failure to appear. (§ 1320, subd. (b).) The prosecution also alleged defendant was released from custody on bail or his own recognizance at the time of the offense.
Undesignated statutory references are to the Penal Code.
Defendant pleaded no contest to possession of methamphetamine for sale in case No. CR60728 and failure to appear in case No. CR61343. The parties stipulated to the factual bases in both cases. The trial court dismissed the other charges in case No. CR60728 and the special allegation in case No. CR61343.
At the sentencing hearing, the trial court denied probation and sentenced defendant to the middle term of two years in county jail in case No. CR60728, with a consecutive term of eight months in case No. CR61343, for an aggregate term of two years eight months in jail. The court determined defendant was entitled to 128 days of credit. The court also ordered defendant to register as a narcotics offender under Health and Safety Code section 11590. In both cases, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). The abstract of judgment also reflects the assessment of a $300 parole revocation restitution fine (§ 1202.45) in each case.
Defendant filed a timely notice of appeal.
DISCUSSION
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. (People v. 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 have elapsed, and defendant did not file a supplemental brief.
Having undertaken an examination of the record, we find an error that must be corrected. The trial court imposed a narcotics registration requirement on defendant under Health and Safety Code section 11590. The Legislature repealed this section, effective January 1, 2020, while defendant's case was still pending and not yet final, and the requirement must be stricken accordingly. (See Stats. 2019, ch. 580, § 2; Health & Saf. Code, § 11594; In re Estrada (1965) 63 Cal.2d 740, 746-747.)
The abstract of judgment does not reference the registration requirement, which was orally imposed.
We also note two clerical errors in the abstract of judgment. First, in section 1, both of defendant's convictions are listed as arising from case No. CR60728 (case “A”), rather than from their respective case numbers. Second, in section 9, the abstract of judgment reflects the imposition of a $300 parole revocation restitution fine under section 1202.45 in each of the two cases. These fines were not imposed in the trial court's oral pronouncement because, as the court noted, defendant was not subject to parole or mandatory supervision. (§ 1202.45, subds. (a), (b).) We will order the abstract of judgment corrected. (People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls”].)
DISPOSITION
The judgment is modified to strike the narcotics offender registration requirement. The trial court is directed to prepare a corrected abstract of judgment correcting sections 1 and 9 as described by this opinion and to forward a certified copy to the county jail. As modified, the judgment is affirmed.
We concur: Robie, Acting P. J., Murray, J.