P. v. Blocker
Filed 6/26/12 P. v.
Blocker CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA W. BLOCKER,
Defendant and Appellant.
C069753
(Super.
Ct. No. 08F08893)
Defendant Joshua
W. Blocker pled no contest to eight counts of
strike, serious felony, and personal use of a deadly weapon allegations. The trial court sentenced defendant to a
stipulated term of 30 years in state prison.
On appeal,
defendant contends the abstract of judgment contains an erroneous reference to
a restitution order that was not part
of the trial court’s pronouncement of judgment.
We remand for a restitution hearing.
FACTS
On October 12, 2008, defendant used a
BB gun to take $300 from the clerk at an Express Stop market in Sacramento. That same day, he took $229 and cigarettes
from a Chevron station after threatening to shoot the attendant.
Defendant
committed two robberies on October
13, 2008. He threatened an
employee of a Shell gas station, who gave him $280 from the cash register and
12 packs of cigarettes. He threatened an
employee at a Sacramento Stop & Shop, who gave him between $200 and $300
from the cash register.
Defendant
committed four robberies on October
15, 2008. He took $621.56
from the cash register attendant at a Union 76 station
in Sacramento. He demanded money from an employee at a
Sacramento Valero station, who gave him $350 from the cash register. Defendant threatened an employee at a
Sacramento Food Stop, and got $80 from the cash register and $90 of the
employee’s money. Defendant threatened
an employee of an Mini Mart in Sacramento,
who gave defendant $200 and two Swisher cigars.
DISCUSSION
The probation
report identified a total of $1,944.50 in restitution for the victims of defendant’s
crimes. The abstract of judgment and
minute order refer to a $1,944.50 restitution order, but the trial court never
addressed restitution when it pronounced sentence.
Defendant asks us
to strike the victim restitution orders.
The People agree that the minute
order and abstract are improper, but ask us to remand the matter to the
trial court for a restitution hearing.
In his reply brief, defendant asserts that the People’s failure to
request restitution in the trial court forfeits the People’s right to seek
restitution.
We agree with the
parties that the clerk could not use the minutes and abstract to supply a
restitution order that was not part of the trial court’s pronouncement of
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral judgment
controls over abstract and minutes]; People
v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [clerk cannot
supplement the judgment through a minute order or abstract].) However, we reject defendant’s contention
that the People forfeited the right to seek victim restitution by failing to
raise the matter in the trial court.
Article I, section
28(b)(13)(B) of the California Constitution provides in relevant part: “Restitution shall be ordered from the
convicted wrongdoer in every case, regardless of the sentence or disposition
imposed, in which a crime victim suffers a loss.” Victim restitution for economic loss is
mandatory (Pen. Code, § 1202.4, subd. (a)(1)) and the court must order
full victim restitution “unless it finds compelling and extraordinary reasons
for not doing so, and states them on the record.” (Id., § 1202.4, subd. (f).)
In this case, the trial court failed to
orally impose victim restitution and did not find compelling and extraordinary
reasons on the record. This omission was
constitutionally unlawful and could not be forfeited by the district
attorney. (People v. Smith (2001) 24 Cal.4th 849, 852 [unauthorized
sentence not subject to forfeiture rule]; see Pen. Code, § 1202.46 [“a victim, the
district attorney, or a court on its own motion” may request “correction, at
any time, of a sentence when the sentence is invalid due to the omission of a
restitution order or fine without a finding of compelling and extraordinary
reasons pursuant to Section 1202.4”].)
Accordingly, we shall strike the references to the restitution order in
the minute order and abstract and remand for a restitution hearing.
DISPOSITION
The trial court is directed to delete the
references to the restitution order in the minute order and abstract, hold a
restitution hearing, prepare an amended minute order and abstract reflecting
the results of that hearing, and forward a copy of the corrected abstract to
the Department of Corrections and
Rehabilitation. In all other
respects, the judgment is affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
MURRAY , J.
