Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF057053, Graham Anderson Cribbs, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Guillermo Segovia Pina (defendant) argues that the trial court abused its discretion when it imposed a restitution fine of $600. We will affirm.
Like defendant, we take most of the facts from the probation report filed July 14, 2008.
Defendant was charged by felony complaint with evading a pursuing peace officer with willful and wanton disregard for the safety of persons or property. (Veh. Code § 2800.2, a felony.) The complaint, filed January 12, 2007, further alleged that defendant had served a prison term for a prior offense and had not remained free of custody for five years following his release. (Pen. Code, § 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
On August 20, 2007, defendant pled guilty to the felony and admitted the prison prior. As part of his plea, he acknowledged that he would be ordered to pay a restitution fine in an amount between $200 and $10,000, and that if he disagreed with the amount, he could request a hearing. In writing and in court, defendant confirmed that he understood that the maximum fine could be $10,000, that it could be imposed twice, and that his ultimate financial responsibility could be more than $10,000. After accepting his plea, the court referred defendant to the probation department for a presentence probation report.
The probation report was written on December 26, 2007. On a single summary page, it recommended that defendant be denied probation and sent to state prison, and that section 1202.4 restitution and section 1202.45 parole revocation restitution fines each be set at $600.
The copy of the probation report in our file has a partially-visible date of what looks like “1/24” (one of defendant’s court dates) on the face page, but it was not actually filed with the court until the day of sentencing, July 14, 2008.
After numerous continuances, virtually all granted at defendant’s request, a sentencing hearing was finally held on July 14, 2008. Defendant was present. On the day of the hearing, defendant filed a six-page memorandum arguing that his was an unusual case and challenging the recommendation that he be denied probation and sent to state prison. After listening to defense counsel’s comments about the probation report, the trial court granted counsel’s motion to strike a number of the report’s statements and citations, but refused to grant requests for probation or to strike defendant’s prison prior.
Defendant, who was out on bail for the first months after his conviction, failed to appear on February 29, 2008, and again on May 23, 2008. A bench warrant was issued for his arrest and on June 16, 2008, he was remanded to custody.
The court sentenced defendant to a total of two years four months in state prison: the low term of 16 months for the Vehicle Code section 2800.2 violation, plus one consecutive year for the prison prior. The court “further order[ed] that the recommendations set forth in the presentence report [be] adopted and also specifically that [defendant] is to submit to DNA testing.” The clerk’s minutes exactly mirrored the recommendations in the probation report: that defendant participate in substance abuse counseling while imprisoned; that he pay a court security fee of $20 (Pen. Code, § 1465.8, subd. (a)(1)); that he pay a $600 restitution fine (Pen. Code, § 1202.4, subd. (b)); and that a parole revocation restitution fine of $600 be imposed but suspended unless parole was revoked (Pen. Code, § 1202.45, subd. (a)(1)). Defendant did not object to any part of the sentence.
DISCUSSION
Defendant challenges only the restitution and parole revocation restitution fines, insisting that without an oral pronouncement of their specific amounts by the court, he was not “meaningfully present” at the sentencing hearing. The probation report, he argues, was not part of the record and the court could not incorporate its recommendations by reference because, “there is no assurance that the defendant has been read the presentence report or has been given a copy of same.”
Waiver
The People reply first that defendant waived his claim by failing to object to the fines at the time of sentencing.
The California Supreme Court has repeatedly clarified that “the [waiver] doctrine ‘should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.’” (People v. Tillman (2000) 22 Cal.4th 300, 302 (Tillman), quoting People v Scott (1994) 9 Cal.4th 331, 353 (Scott).) In Tillman, the court discussed its decision in Scott, together with its earlier decision in People v. Welch (1993) 5 Cal.4th 228. Waiver principles, it reiterated, encourage the proper development of the record and exercise of the trial court’s discretion and help reduce the number of costly appeals based on invalid probation conditions. (Tillman, at p. 303.) Quoting Scott with emphasis, the court added,“‘Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.’” (Tillman, at p. 303.)
Defendant’s argument is subject to the reasoning of Tillman, Scott, and Welch. If there was a defect or omission in the court’s pronouncement of the restitution fines, it could easily have been corrected at the sentencing hearing. This is especially true since it is clear that defendant’s claim that he was unaware of those recommendations is, at best, disingenuous. The case had been continued numerous times, at his request, between the date the probation report was filed and the date of sentencing. He first failed to appear at his scheduled court appearances shortly after the report was completed. He filed a six-page memorandum challenging recommendations found on the same page of the probation report and in the same short list as the restitution fines recommendation. Defense counsel most likely did not raise the issue because both he and his client knew the fines were mandatory and were well aware of the amounts proposed.
If defendant’s objection was somehow not waived, we find it without merit. It is true that a trial court is generally required to “pronounce” a “sentence” orally. (In re Bateman (1928) 94 Cal.App. 639, 640-641.) It should not merely incorporate by reference statements and recommendations of a probation report. (People v. Turner (1978) 87 Cal.App.3d 244, 246-247.) To the extent that the court’s oral pronouncement of sentence conflicts with the clerk’s minutes, the former is controlling. (People v. Martinez (1980) 109 Cal.App.3d 851, 855.)
Here, the court’s oral pronouncement of sentence did not conflict with the minutes. It was merely incomplete, and only in the sense that it incorporated by reference details found in a document with which all the parties were obviously familiar. Even assuming that the court should have pronounced the amounts of the fines orally, the error is subject to review under the harmless error standard appropriate for noncapital sentencing errors. (People v. Price (1991) 1 Cal.4th 324, 491-492, superseded by statute on another point as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161; People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685-1686.) Reversal is required only when the reviewing court, after careful examination of the entire case, is of the opinion that there is a reasonable probability that a result more favorable to the appealing party would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
On this record, there is no evidence that defendant’s fines would have been different had the court pronounced them orally rather than by reference to the probation report. First, as we have explained, that defendant had ample notice of the amounts recommended is obvious from the challenge he filed to the report’s other recommendations. Second, when defendant entered his plea, he repeatedly expressed his understanding and agreement that he was subject to a fine of up to $20,000. These amounts were not unusual or excessive.
Restitution and parole revocation restitution fines are mandatory and must be the same. (§§ 1202.4, subd. (a)(3)(A), 1202.45.) The amount of a restitution fine is to be set at the discretion of the court and may be determined as the product of $200, multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of his felony convictions. (§ 1202.4, subd. (b)(2).) However, in setting the fine above $200, a court may consider any relevant factors and is not required to make express findings as to the factors it considers in setting the amount. (§ 1202.4, subd. (d).) There is no evidence that the court did anything other than fulfill this statutory duty.
Defendant’s reliance on People v. Zackery (2007) 147 Cal.App.4th 380 (Zackery), is misplaced. In Zackery,the appellate court found numerous errors in the clerk’s record and in the sentence based on those errors, as well as in the resulting abstract of judgment. The minutes at a change of plea hearing erroneously stated that the defendant changed his plea on one charge from “not guilty” to “nolo contendere.” In fact, defendant had neither changed his plea on, nor been convicted of, the charge in question. (Id. at pp. 385-386.) Then, at sentencing, the court imposed a $2,150 fine for the nonexistent conviction. (Id. at pp. 386-387.) Finally, absent any oral pronouncement or reference at all, the clerk added various other fines and provisions to the minutes and to the abstract of judgment. (Id. at pp. 387-390.) The appellate court concluded that the case was “replete with errors,” and said that “the clerk’s minutes must accurately reflect what occurred at the hearing.” (Id. at pp. 384, 388.)
What happened here is not like what happened in Zackery. This case is not replete with errors. Although the court did not orally pronounce the amounts of the fines, by referring to the probation report it did indicate its intention to impose them and their amounts. Moreover, as we have explained, the recommendations in the probation report appear to have been very familiar to defendant and his attorney.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.