Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF089438A, SF095066A, TF032315A
RAYE, J.
Defendant Rickey Paul Murray appeals the restitution and parole revocation fines imposed by the trial court as a result of his probation violation. Finding only a clerical error in the abstract of judgment, we shall order the abstract to be amended and otherwise affirm the judgment.
In three prior cases, defendant pled guilty to charges of corporal injury to a spouse/cohabitant (Pen. Code, § 273.5, subd. (a) -- case No. SF089438A); battery on a custodial officer (§ 243.1 -- case No. TF032315A); and vandalism (§ 594, subd. (a) -- case No. SF095066A). In each of these cases, defendant waived a referral to the probation department and was sentenced to five years’ probation.
All further statutory references are to the Penal Code.
For ease of reference, in this opinion we will refer to these cases by the letter assigned to each in the abstract of judgment. Case No. SF089438A will be referred to as “case A,” case No. SF095066A as “case B,” and case No. TF032315A as “case C.”
In cases A and C, the trial court also ordered defendant to pay a $200 restitution fine. (§ 1202.4, subd. (b).) In case B, the court initially ordered defendant to pay a $200 restitution fine, then said, “I’m going to waive that at this time.”
On November 14, 2006, defendant admitted to violating his probation in all three prior cases. Defendant again waived referral to the probation department and was sentenced to a total of two years in state prison. Defendant received 701 days of custody credit and 350 days of conduct credit. The court also ordered defendant to “pay a statutory fine of $200 pursuant to [section] 1202.45. That’s [sic] fine is stayed pending revocation of parole.”
Defendant argues on appeal that at the November 14, 2006, sentencing (1) the trial court erroneously imposed a second restitution fine in cases A and C, and (2) the trial court erroneously imposed a restitution fine and corresponding parole revocation fine (§ 1202.45) in case B, having already waived the restitution fine at the initial judgment and sentencing.
With regard to defendant’s first claim, the Attorney General argues there was no mistake made by the trial court, only an error in the abstract of judgment. With regard to defendant’s second claim, the Attorney General argues the trial court simply forgot to impose a restitution fine in case B and the matter should be remanded so the court may consider doing so. Both defendant and the Attorney General are incorrect.
At the November 14 sentencing, the trial court said only that “[t]he defendant is ordered to pay a statutory fine of $200 pursuant to [section] 1202.45. That’s [sic] fine is stayed pending revocation of parole.” The court did not order defendant to pay additional restitution fines in either case A or case C. And contrary to the Attorney General’s assertion, the restitution fines listed on the abstract were not listed in error. Rather, the abstract reflects all prior orders not satisfied by defendant at the time of the November 14 hearing, and there is no evidence defendant had paid these fines. Accordingly, the restitution fines in cases A and C are properly listed on the abstract of judgment.
The parole revocation fines listed on the abstract of judgment in cases A and C are mandatory because the court ordered restitution fines in each case. (People v. Tillman (2000) 22 Cal.4th 300, 302 (Tillman).)
The restitution fine listed on the abstract of judgment relative to case B, however, is not consistent with the trial court’s ruling. Defendant correctly points out that the court waived the restitution fine in case B when defendant was initially sentenced. Thus, defendant contends, the trial court could not subsequently impose a restitution fine when his probation was revoked.
Whether the trial court had the authority to impose a restitution fine in case B when defendant’s probation was revoked is of no moment because it is evident from the reporter’s transcript the trial court did not do so. Ergo, the abstract of judgment is inconsistent with the court’s ruling on the record. When an abstract conflicts with the court’s oral pronouncement of judgment, it is the court’s oral pronouncement that prevails. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Accordingly, as acknowledged by the Attorney General, the court did not order a restitution fine in case B.
Nevertheless, the Attorney General’s request that we remand this case and allow the trial court another opportunity to impose a restitution fine in case B is not well taken. The People forfeited their right to argue on appeal that a restitution fine should be imposed when the prosecutor failed to object to the trial court’s waiver of the fine. (Tillman, supra, 22 Cal.4th at pp. 302-303.)
In Tillman, the California Supreme Court ruled that the forfeiture doctrine precluded the prosecution from raising on appeal the trial court’s failure to impose the restitution and parole revocation fines, thereby disapproving those appellate cases where the prosecution’s request to correct the omission of these fines for the first time on appeal had been granted.
The Attorney General rightly acknowledges Tillman, supra, 22 Cal.4th 300 as controlling precedent. He nevertheless argues an exception is warranted in this case because there was no probation report. The Attorney General does not, however, cite any authority for his position and we can find none. Bound by Tillman,we conclude the issue has been forfeited. The trial court is therefore ordered to amend the abstract of judgment to reflect the court’s oral pronouncement of judgment and remove the restitution and parole revocation fines listed for case B.
DISPOSITION
The superior court is directed to amend the abstract of judgment accordingly and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: DAVIS, Acting P.J., CANTIL-SAKAUYE, J.