Opinion
D059362
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY FRANCIS VINCENT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCE305898)
APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed as modified with directions.
Anthony Francis Vincent pleaded guilty to first degree burglary (Pen. Code, § 459) and making a criminal threat (§ 422) and admitted having a prior serious felony conviction (§ 667, subd. (a)) and a strike (§ 667, subds. (b)-(i)). The court sentenced him to prison for a stipulated term of seven years eight months: two years eight months (twice the lower term) for making a criminal threat, five years for the serious felony prior and a concurrent four-year term (twice the lower term) for burglary. The court orally imposed a $2,400 restitution fine (§ 1202.4, subd. (b)) and suspended a $2,800 parole revocation fine (§ 1202.45). The abstract of judgment states that each of these two fines is $2,800.
All further statutory references are to the Penal Code.
Vincent appeals, contending the abstract of judgment must be amended to reflect a $2,400 restitution fine and a $2,400 parole revocation fine. The People properly concede the point. The court's oral pronouncement takes precedence over the abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The parole revocation fine must be the same amount as the restitution fine. (§ 1202.45.) Additionally, there are two errors not mentioned by the parties: the abstract of judgment erroneously fails to state the sentence for making a criminal threat was concurrent and incorrectly states that sentence was stayed (§ 654). The abstract of judgment must be modified to correct these errors.
DISPOSITION
The judgment is modified to reflect a restitution fine (§ 1202.4, subd. (b)) of $2,400 rather than $2,800; a parole revocation fine (§ 1202.45) of $2,400 rather than $2,800; and a concurrent term for making a criminal threat rather than a stayed term. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR:
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NARES, Acting P. J.
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HALLER, J.
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McINTYRE, J.