Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05NF4449, Richard W. Stanford, Jr., Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
A jury found defendant Arturo Alonso Morales guilty of one count each of possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 2). Because the only issues in this appeal relate to sentencing, we need not relate the factual basis for his conviction. Contrary to the argument of the Attorney General, we do not find that court’s statements in the imposition of sentence were so confusing as to compel a remand for resentencing. We will order correction of the minute order that memorializes the sentencing proceedings. On our own motion we will also order correction of the probation order.
1. The sentencing proceedings
In attempting to determine the sentence imposed, we start with the probation report, which states, “the defendant is marginally suitable for a grant of probation. Should the Court concur, it is suggested the defendant serve 270 days in Orange County Jail, register as a drug offender, use no illegal drugs, submit to drug testing, pay a restitution fine and pay for the preparation of this report.”
At the sentencing hearing, the court stated it had read and considered the probation report and noted “as the probation officer is recommending a grant of probation with a nine-month sentence, . . . the court is willing to go ahead and do that.” Both the prosecutor and defendant’s lawyer declined the court’s offer to comment.
Thereupon the court stated: “Then, sir, the crimes for which you have been found guilty are crimes that I could sentence you to prison for right now. However, the probation department . . . call[s] you marginally suitable person for a grant of probation, [¶] I am willing to take a chance on you also, but you’ve got to understand that the sentence for these offenses is like three years in prison and if you were to violate the terms of your probation . . . the court likely would just send you to prison.”
After inquiring whether the defendant understood the potential consequences of probation violations, the court went on: “the court at this time is willing to go ahead and grant probation and rather than impose a prison term at this time, imposition of your sentence will be suspended for the next three years.” After defendant waived arraignment for sentencing, the court stated, “imposition of that sentence having been suspended then, you’re placed on a grant of three years[’] formal supervised probation.”
Following this statement the court recited the conditions of defendant’s probation and concluded by asking “I think he has some significant credit to apply against his sentence already?” When defense counsel recited that defendant had accumulated a total of 129 days credit, the court ordered them to be applied. The court also ordered defendant to report to the probation department within 72 hours of his release. It then noted that the “sentence is on count 1 and that sentence on count 2 is stayed 654 PC.” (Pen. Code, § 654; all further statutory references are to this code.)
After defendant’s lawyer reminded the court that there also was an unresolved misdemeanor charge (paraphernalia), to which the defendant pleaded guilty, the court imposed a sentence of “60 days in the county jail with credits for 60 days already served.” There also were outstanding traffic tickets; with respect to these the court stated, “all fines are ordered suspended.” At the request of the prosecutor the court then changed its earlier ruling under section 654 and ordered that defendant be sentenced on the second count with sentence on the first count stayed. Before the court adjourned, defendant’s lawyer asked that it recommend defendant “serve the balance of his stay at the farm.” The court declined to do so.
The minute order prepared to memorialize these proceedings states, “defendant is sentenced to state prison for middle term of 3 year(s). [¶] . . . Execution of state prison sentence is suspended and defendant is placed on 3 year(s) formal probation as to count(s) 2.” (Capitalization omitted.) Finally, a separate “probation order,” after noting erroneously that defendant pleaded guilty, states “execution of state prison sentence is suspended . . . .” (Capitalization omitted.)
The court also ordered defendant to pay a restitution fine of $400.
2. Did the court impose a suspended sentence or was imposition of sentence suspended?
Both parties agree that, when there is an inconsistency between the court’s oral pronouncement of sentence and the written order memorializing the proceedings, the oral pronouncement prevails and the written order must be revised to conform. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The Attorney General argues that we cannot determine from inconsistent statements made by the court whether the court intended to impose a sentence and suspend it or to suspend imposition of sentence. We disagree.
The court stated unequivocally it was “willing to go ahead and grant probation and rather than impose a prison term at this time, imposition of your sentence will be suspended for the next three years.” The subsequent discussion regarding credits as well as the instruction defendant report to probation shortly after his release presumably referred to the jail sentence imposed as a condition of probation. The court did make some statements inconsistent with imposition of sentence being suspended. The discussion regarding the application of section 654 was unnecessary. But we read these statements as perhaps indicating some confusion on the part of a busy trial judge as well as the prosecutor; they do not persuade us that the court changed its mind about suspending the imposition of sentence. After making the unequivocal statement quoted above, if the court had intended to change its ruling, we would expect an equally unequivocal statement to that effect.
Therefore the minute order memorializing the imposition of sentence and the “probation order” should be corrected to reflect the sentence imposed by the court. The “probation order” should also be corrected to indicate that defendant’s guilt was determined after a jury trial, rather than guilty pleas.
3. The court erred in imposing a restitution fine.
The trial court ordered defendant “to pay the restitution fine in the amount of $400 as directed . . . .” Presumably this fine was imposed under section 1202.4, subdivision (f). Appellant contends, and the Attorney General agrees, that this portion of the judgment should be stricken. Section 1202.4, subdivision (f) provides for a restitution fine payable to the victims of crimes. But here there were no victims of defendant’s crime; thus no restitution can be made to anyone.
DISPOSITION
The judgment is affirmed with directions to modify the minute order and “probation order” as set out above.
WE CONCUR: SILLS, P. J. FYBEL, J.