Opinion
F075407
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM CASTRO GONZALEZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PCF307624)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Appellant Abraham Castro Gonzalez pled no contest to attempted murder (Pen. Code, §§ 664, 187/count 3), domestic violence (§ 273.5, subd. (a)/count 5), and making criminal threats (§ 422/count 6). On appeal, Gonzalez contends the court erred by its failure to issue an amended abstract of judgment after it amended the judgment. We find merit to this contention and will direct the trial court to issue an amended abstract of judgment. In all other respects, we affirm.
All statutory references are to the Penal Code.
FACTS
On October 7, 2014, Gonzalez arrived home inebriated and began accusing his wife of having an affair with a man who rented a room in their house. During an altercation that ensued, Gonzalez threatened to kill his wife and he assaulted her and the man with a knife.
Only a brief recitation of the facts is provided because they are not germane to the issue Gonzalez raises on appeal.
On December 11, 2014, the Tulare County District Attorney filed an information charging Gonzalez with two counts each of attempted murder (counts 1 & 3) and assault with a deadly weapon (§ 245, subd. (a)(1)/counts 2 & 4) and one count each of domestic violence (count 5) and making criminal threats (count 6). Counts 1, 3, 5, and 6 alleged a personal use of a knife enhancement (§ 12022, subd. (b)(1)). Counts 1 and 3 also alleged that Gonzalez committed the attempted murder offenses "willfully, deliberately and with premeditation within the meaning of ... section 664[, subd.] (a)."
On October 27, 2016, as part of a plea bargain, Gonzalez entered his plea as noted above in exchange for the dismissal of the remaining counts and allegations and a stipulated, aggregate prison term of eight years eight months.
On March 13, 2017, the trial court sentenced Gonzalez to the stipulated term of eight years eight months, the middle term of seven years on his attempted murder conviction, a consecutive one-year term on his domestic violence conviction (one-third the middle term of three years), and eight months on his criminal threats conviction. The court also ordered Gonzalez to pay a $1,000 fine pursuant to section 294, subdivision (a).
On March 20, 2017, the court issued an abstract of judgment that listed the $1,000 fine the court imposed pursuant to section 294.
On July 18, 2017, appellate counsel sent a letter to the trial court requesting that it strike the $1,000 imposed fine pursuant to section 294 because Gonzalez was not convicted of an offense to which that section applied.
On July 25, 2017, the trial court issued a minute order striking the section 294 fine.
On August 3, 2017, appellate counsel sent another letter to the trial court asking about the status of his July 18, 2017, request.
On August 21, 2017, the trial court issued an amended "out of court" minute order that struck the section 294 fine and amended the March 20, 2017, abstract of judgment to delete this fine. The record, however, does not indicate that the court actually issued an amended abstract of judgment.
DISCUSSION
Gonzalez contends the August 21, 2017, minute order issued by the trial court does not constitute an amended abstract of judgment because it does not comply with the requirements of section 1213. He further contends that the orderly administration of justice requires the trial court to issue an amended abstract of judgment on the appropriate Judicial Council form and to forward a certified copy to the Department of Corrections and Rehabilitation. Respondent concedes and we agree.
"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." [Citations.]' " (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Section 1213 provides:
"(a) ... if [a] judgment is for imprisonment in the state prison or imprisonment pursuant to subdivision (h) of Section 1170, 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 ... judgment, and no other warrant or authority is necessary to justify or require its execution.
"(b) If a copy of the minute order is used as the commitment document, the first page or pages shall be identical in form and content to that prescribed by the Judicial Council for an abstract of judgment, and other matters as appropriate may be added thereafter." (Italics added.)
Section 294 allows the court to impose a restitution fine of up to $5,000 on any defendant convicted of the sexual offenses enumerated in subdivision (a) of that section. (§ 294, subd. (a).) None of the offenses of which Gonzalez was convicted are listed in section 294. Thus, pursuant to appellate counsel's request, the trial court correctly struck the $1,000 fine it imposed pursuant to that section.
Here, the court used an abstract of judgment that it issued on March 20, 2017, as the commitment document. Further, since the abstract of judgment must summarize the judgment (People v. Mitchell, supra, 26 Cal.4th at p. 186), when the court struck the section 294 fine the trial court should have issued an amended abstract of judgment that omitted this fine.
The court's issuance of an amended out of court minute order that amended the abstract of judgment did not relieve the court of its obligation to ensure that the abstract of judgment summarized the judgment because the order was not the commitment document. Additionally, the order did not comply with statutory requirements for a commitment document because it was not "identical in form and content to that prescribed by the Judicial Council for an abstract of judgment." (§ 1213, subd. (b), italics added.) Accordingly, we will direct the trial court to issue an amended abstract of judgment that omits the section 294 fine that was stricken.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment that omits the section 294 fine that it struck on August 21, 2017, and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.