Opinion
NOT TO BE PUBLISHED
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
As part of a negotiated plea agreement, defendant Carlos Javier Lopez pleaded no contest in two separate cases on February 28, 2008. In case No. SS071095A, defendant pleaded no contest to inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a)) and admitted the allegation that he had served a prison prior term (§ 667.5, subd. (b)). In case No. SS072763A, defendant pleaded no contest to stalking in violation of a court order (§ 649, subd. (b)) and admitted the allegation that the offense was committed while he was released on bail (§ 12022.1, subd. (b)). Imposition of the eight-year sentence was suspended and defendant was placed on probation. Subsequently, probation was revoked and the trial court imposed the previously suspended sentence and ordered defendant to pay victim restitution and restitution fines.
On appeal, defendant contends that the trial court imposed inconsistent restitution fines in both cases and asks this court to remand the matter for clarification. Additionally, defendant contends the trial court erred in its calculation of his presentence custody credits. For reasons that we will explain, we determine that defendant’s contentions have merit. Therefore, we will reverse the judgment and remand the matter to the trial court with directions to clarify the restitution fine orders and to correct the award of presentence custody credits.
II. FACTUAL AND PROCEDURAL BACKGROUND
In light of defendant’s no contest pleas, and because the facts underlying defendant’s convictions are not at issue, our brief summary of the facts is drawn from the probation report filed on April 3, 2008.
A. Case No. SS071095A
On February 24, 2007, officers from the Salinas Police Department responded to a report of a domestic assault. Defendant’s wife informed the police that when she came home that evening, defendant was intoxicated. She began to argue with defendant and he grabbed her by the neck and choked her. Defendant then grabbed his wife by the hair and threw her into a set of automobile tires stored in a nearby garage shed. He also dragged her by the hair into the house, causing her to strike a kitchen wall. Eventually, she was able to flee and call the police.
On April 5, 2007, in case No. SS071095A, defendant was charged by information with inflicting corporal injury on a spouse (§ 273.5, subd. (a); count 1), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2). For each count, the information alleged defendant had served three prison prior terms (§667.5, subd. (b)).
B. Case No. SS072763
On September 21, 2007, defendant’s wife reported to the Salinas Police Department that defendant had sent her two text messages in violation of a temporary protective order prohibiting defendant from having any contact with her. Later that day she reported to police that she had found defendant inside her home. After defendant left, defendant’s wife discovered that various items in her home had been damaged.
On November 21, 2007, in case No. SS072763, defendant was charged by information with three felony counts, stalking while a restraining order was in effect (§ 646.9, subd. (b); count 1), vandalism causing $400 or more in damage (§ 594, subd. (b)(1); count 2), and first degree burglary (§ 459; count 3). For each felony count, the information also alleged defendant had committed the offense while released on bail (§ 12022.1), and alleged that defendant had served two prison prior terms (§ 667.5, subd. (b)). Finally, defendant was charged with one misdemeanor count, criminal contempt/disobedience of a protective order (§166, subd. (c)(1)).
C. No Contest Pleas and Sentencing
On February 28, 2008, in case No. SS071095A, defendant pleaded no contest to inflicting corporal injury on a spouse (§ 273.5, subd. (a)) and admitted he had served a prison prior term (§ 667.5, subd. (b)). In case No. SS072763A, defendant pleaded no contest to stalking in violation of a court order (§ 646.9, subd (b)) and admitted the offense had occurred while he was released on bail (§ 12022.1, subd. (b)).
At the sentencing hearing held on April 9, 2008, the trial court sentenced defendant to a combined total of eight years in state prison. In case No. SS071095A, the trial court imposed a total term of five years in state prison, which included the upper term of four years on count 1 (corporal injury on a spouse), and a one-year consecutive sentence for the prison prior. The trial court suspended imposition of the five-year sentence and placed the defendant on formal probation for four years. In case No. SS072763A, the trial court imposed a total term of three years in state prison, which included one year (one-third the middle term) on count 1 (stalking in violation of a court order), and a two-year consecutive sentence for committing the offense while on bail. The trial court suspended imposition of the three-year sentence and placed the defendant on formal probation for four years.
During the sentencing hearing, the trial court also ordered defendant to pay restitution fines. In case No. SS071095A, the trial court ordered defendant to “pay additional state restitution in the amount of $1,000. [¶] Defendant also ordered to pay restitution fine in the amount of $200.” The minute order of April 9, 2008, reflects that the trial court ordered defendant to pay a restitution fine of $200 to the state restitution fund pursuant to section 1202.4, subdivision (b), and states that “[a]n additional restitution fine in the amount of $200.00 (same as assessed pursuant to [section] 1202.4(b) is imposed, suspended and not to be paid unless and until probation is revoked and not reinstated. ([section] 1202.44).”
In case No. SS072763A, the trial court ordered defendant “to pay restitution fine in the amount of $600.... Also, ordered to pay restitution in the amount of $200....” The minute order of April 9, 2008, reflects that the trial court ordered defendant to pay a restitution fine of $200 to the state restitution fund pursuant to section 1202.4, subdivision (b), and states that an “additional restitution fine in the amount of $200.00 (same as that assessed pursuant to [section] 1202.4(b) is imposed, suspended, and not to be paid unless and until probation is revoked and not reinstated. ([section] 1202.44).”
D. Revocation of Probation
On May 15, 2008, the probation officer filed a petition pursuant to section 1203.2 to revoke defendant’s probation. The petition alleged that defendant had violated probation by violating the trial court’s order not to contact his spouse. On August 8, 2008, the district attorney filed a declaration and notice of violation of probation, which alleged that defendant had again violated the trial court’s order not to contact his spouse. After a contested probation violation hearing held on August 8, 2008, the trial court found defendant had violated conditions of his probation.
At a hearing held on October 15, 2008, the trial court revoked and terminated probation and ordered execution of the suspended sentence of eight years. The trial court found that defendant was entitled to 577 days of presentence custody credits.
Regarding restitution fines, in case No. SS071095A the trial court stated that it “would order that the defendant pay a state restitution fine in the amount of a thousand dollars; plus pay an additional restitution fine in the same amount assessed pursuant to [section] 1203.4....” In case No. SS072763A, the trial court stated that it “would order the defendant to pay a restitution fine in the amount of six hundred dollars; plus pay additional restitution fine in the same amount assessed for [section] 1202.4(b), suspended unless parole is revoked....” The minute order of October 15, 2008, reflects the imposition of these restitution fines in both cases.
III. DISCUSSION
A. Restitution Fines
On appeal, defendant contends that the record is unclear as to the amounts of the restitution fines the trial court intended to impose, and therefore the matter should be remanded for clarification.
Specifically, defendant asserts that in case No. SS071095A, the trial court’s oral pronouncement at the sentencing hearing held on April 9, 2008, was internally inconsistent because the court first ordered defendant to pay a $1,000 state restitution fine and, but later, during the same oral pronouncement, ordered defendant to a pay a $200 restitution fine.
Similarly, in case No. SS072763A, defendant asserts that the trial court, in its oral pronouncement of April 9, 2008, first ordered defendant to pay a $600 restitution fine, but later during the same oral pronouncement ordered defendant to pay a restitution fine in the amount of $200.
Defendant also notes that the minute orders of April 9, 2008, for each case reflect that the court imposed a $200 state restitution fine, with no mention of either a $1,000 restitution fine or $600 restitution fine. While defendant acknowledges that a sentencing court’s oral pronouncement generally controls over a clerk’s minute order, he argues that in the instant case, the ambiguity in the trial court’s oral pronouncement renders it impossible to determine the amounts of restitution fines that the court intended to impose. Due to this ambiguity, defendant asks this court to remand the matter to the trial court to clarify its restitution orders.
The People argue the trial court imposed $1,000 and $600 restitution fines at the April 9, 2008 hearing, and then read through a boilerplate sentence that included minimum fines of $200 in each case. The People conclude that this inadvertent double imposition of restitution fines was resolved on October 15, 2008, after revocation of probation, when only the intended $1,000 and $600 fines were restated for the record. The People argue that because any ambiguity that may have occurred was corrected by the trial court on October 15, 2008, it would be pointless for this court to remand the matter for an additional restatement of the fines.
For several reasons, we agree with defendant that the matter must be remanded for clarification of the amounts of the restitution fines that the trial court intended to impose. Our first consideration is the scope of the trial court’s authority to impose restitution fines.
The Penal Code provides that “a convicted defendant who is granted probation will ordinarily be subject to two restitution fines--a state Restitution Fund fine under section 1202.4(b) and a probation revocation restitution fine under section 1202.44, which is stayed unless probation is revoked.” (People v. Guiffre (2008) 167 Cal.App.4th 430, 434, italics omitted.) However, “there is no provision for imposing a restitution fine after revocation of probation. The triggering event for imposition of the restitution fine is still conviction.” (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) When probation is revoked, the trial court may not impose a restitution fine in an amount greater than the original restitution fine. (People v. Garcia (2006) 147 Cal.App.4th 913, 917.) Thus, in the instant case, if at the sentencing hearing of April 9, 2008, the trial court intended to impose a state restitution fine of $200 in each case, the court would have had no authority at the October 15, 2008 hearing to impose a state restitution fine in the greater amounts of $1,000 in case No. SS071095A and $600 in case No. SS072763A.
Although defendant did not object to the imposition of restitution fines in the amount of $1,000 and $600 at the hearing of October 15, 2008, we find that he did not forfeit the issue because it concerns the imposition of a second restitution fine following the revocation of probation, in excess of the trial court’s statutory authority. (People v. Chambers, supra, 65 Cal.App.4th at p. 823.)
We next consider whether we may properly determine the amount of the state restitution fine that the trial court intended to impose in each case. The general rule is that if “ ‘the judgment entered in the minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts.’ [Citation].” (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) This is because the rendition of judgment is an oral pronouncement, while entering a judgment in the minutes is a clerical function. (People v. Mesa (1975) 14 Cal.3d 466, 472.) Where the record is in conflict, it will be harmonized if possible. (People v. Harrison (2005) 35 Cal.4th 208, 237.) “If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.]” (Id. at p. 226.)
We find that it is not possible to harmonize the conflict in the record concerning the imposition of state restitution fund fines because the trial court’s oral pronouncements are internally inconsistent. The trial court’s oral pronouncement during the hearing of April 9, 2008, stated that the court was imposing a state restitution fund fine of $1,000 in case No. SS071095A, then subsequently stated that the amount of the restitution fine was $200. Similarly, in case No. SS072763A, the trial court’s oral pronouncement of April 9, 2008, stated a state restitution fund fine of $600, then a restitution fine of $200. The minute order of April 9, 2008, reflected a state restitution fund fine of $200 in both cases, but at the hearing of October 15, 2008, the trial court imposed a state restitution fund fine of $1,000 in case No. SS071095A and $600 in case No. SS072763A, both in the oral pronouncement and as reflected in the minute order.
Because the trial court’s oral pronouncements at the sentencing hearings are internally inconsistent, we are unable to determine the amount of the state restitution fund fine that the trial court intended to impose in each case. It is unclear whether the court intended to impose a state restitution fund fine of $1,000 or $200 in case No. SS071095A, or a state restitution fund fine of $600 or $200 in case No. SS072763A.
The People’s argument that any inconsistency in the trial court’s oral pronouncements at the April 9, 2008 sentencing hearing was clarified at the October 15, 2008 hearing is not persuasive. As we have discussed, the first restitution fine survives the revocation of probation, and therefore the trial court has no authority to impose a second restitution fine after probation is revoked. (People v. Chambers, supra, 65 Cal.App.4th at p. 822 .) Because we are uncertain whether the trial court intended to impose state restitution fund fines in the amounts of $1,000 and $600, and not $200 in both cases, we are also uncertain whether the restitution fines imposed after defendant’s probation was revoked, in the amounts of $1,000 and $600, clarified the intended first restitution fines or constituted improper second restitution fines in excess of the court’s authority.
For these reasons, we conclude that because the trial court’s oral pronouncements at the sentencing hearing of April 9, 2008, were inconsistent with respect to the amount of restitution fines imposed, and cannot be harmonized under the circumstances of this case, we must remand the matter for clarification.
B. Presentence Custody Credits
The trial court awarded defendant 577 days of presentence custody credits. Defendant contends the trial court’s calculation of his presentence custody credits erroneously denied him nine days of presentence custody credits under section 4019. The People concede that the trial court erroneously calculated defendant’s presentence custody credits, but contend defendant is only entitled to seven additional days.
As a threshold matter, we note that defendant did not object to the award of 577 presentence custody credits at the time of the October 15, 2008 hearing. We may nevertheless consider the issue because another issue is being litigated on appeal. (§ 1237.1; People v. Florez (2005) 132 Cal.App.4th 314, 319, fn. 12.)
Accordingly, we will resolve the issue under the well established rules governing the calculation of presentence custody credits. Defendants may earn two types of credits when housed in county jail prior to sentencing. “Defendants sentenced to prison for criminal conduct are entitled to credit against their terms for all actual days of presentence and postsentence custody.... Defendants detained in a county jail, or other equivalent specified facility, ‘prior to the imposition of sentence,’ may also be eligible for presentence good behavior/worktime credits... of up to two days for every four days of actual custody. [Citation.]” (People v. Cooper (2002) 27 Cal.4th 38, 40.)
Under section 4019, “presentence conduct credit is calculated by ‘dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.)
In the present case, the record reflects that the trial court calculated 379 days of actual presentence custody credits and 198 days of section 4019 conduct credits for a total of 577 days of presentence custody credits, based upon the recommendation of probation officer. Defendant argues he is entitled to 392 days of actual presentence custody credit and 194 days of section 4019 conduct credits for a total of 586 days of presentence custody credits. The People, on the other hand, contend that defendant is entitled to 390 days of actual presentence custody credit and 194 days of section 4019 conduct credits for a total of 584 days of presentence custody credits. As we will show, we agree with defendant that he is entitled to 586 days of presentence custody credits.
In case No. SS071095A, the record reflects defendant was in custody from February 24, 2007 to February 25, 2007, a period of two days, and from October 18, 2007 to April 9, 2008, a period of 175 days. This totals 177 days of actual presentence custody credits. As mentioned previously, conduct credits are calculated under section 4019 by dividing the number of days spent in custody by four and rounding down to the nearest whole number, which is then multiplied by two and added to the original number of days spent in actual custody. (People v. Williams, supra, 79 Cal.App.4th at p. 1176, fn. 14.) Defendant spent 177 days in actual custody, and 177 divided by four, rounded down to the nearest whole number, equals 44. That number multiplied by two equals 88 days of conduct credits. Thus, defendant should receive 265 days of presentence custody credit (177 days of actual custody, plus 88 days of conduct credit) in case No. SS071095A. The parties agree that defendant is entitled to 265 days of presentence custody credit in case No. SS071095A.
In case No. SS072763A, the record reflects defendant was in custody from September 22, 2007 until October 15, 2008. However, defendant received actual custody credits in case No. SS071095A for the period of October 18, 2007, to April 9, 2008. Pursuant to section 2900.5, subdivision (b), defendant is not entitled to credit for that time in case No SS072763A. (People v. Bruner (1995) 9 Cal.4th 1178, 1180.) Section 2900.5, subdivision (b) provides in relevant part, “Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” Because defendant received multiple consecutive sentences of five years in Case No. SS071095A and three years in case No. SS072763A, he is not entitled to dual credits for the period of October 18, 2007 to April 9, 2008.
Therefore, we determine that in case No. SS072763A defendant is entitled to actual custody credits for September 22, 2007 to October 17, 2007, a period of 26 days, and April 10, 2008, to October 15, 2008, a period of 189 days, totaling 215 days of actual time in custody. When 215 days are divided by four and rounded down to the nearest whole number, the result is 53 days. That number multiplied by two equals 106 days of conduct credits. The sum of 106 days of conduct credits and 215 days of actual custody is 321. Thus, defendant is entitled 321 days of presentence credits in case No. SS072763A.
To determine the correct amount of presentence custody credits to which defendant is entitled, we add the total number of presentence custody credits in each case: 265 days in case No. SS071095 plus 321 days in case No. SS072763A, for a combined total of 586 days of presentence custody credits. We therefore conclude that the trial court erred in awarding defendant the lesser amount of 577 days of presentence custody credits and we will direct the court to modify the judgment to reflect 586 days of presentence custody credits, including 392 days of actual custody credit and 194 days of conduct credit.
IV. DISPOSITION
The judgment is reversed and remanded to the trial court with directions to (1) clarify the amount of restitution fines the court intended to impose at the hearing held on April 9, 2008, in case Nos. SS071095A and SS072763A; (2) to modify the judgment as needed to reflect the correct amount of the restitution fines; (3) to modify the judgment to state that defendant is entitled to 586 days of presentence custody credit, including 392 days of actual custody credit and 194 days of conduct credit. The clerk of the superior court is ordered to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: Mcadams, J., Duffy, J.