P. v. Marin
Filed 7/18/12 P. v. Marin CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FIDELIO SALAZAR MARIN,
Defendant and Appellant.
G045175
(Super. Ct. No. 08WF2161)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, M. Marc Kelly, Judge.
Affirmed as modified.
Steven A. Torres, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Gary Brozio and William M. Wood, Deputy
Attorneys General, for Plaintiff and Respondent.
Fidelio Salazar Marin
appeals from the judgment entered after a jury found him guilty of
allegation that he personally used a knife during the commission of the murder,
within the meaning of Penal Code section 12022, subdivision (b)(1).
not committed during the heat of passion and, therefore, we should reduce his
conviction to voluntary manslaughter; (2) the trial court erroneously permitted
the prosecution to present a “cleaned up†English translation of a letter he
wrote in Spanish immediately after the killing; and (3) we must strike the $200
restitution fines imposed under sections 1202.4 and 1202.45 because the court
failed to orally pronounce judgment on the matter. We agree the restitution fines must be
stricken, but otherwise reject Marin’s contentions and affirm the judgment as
modified.
FACTS
Marin and his common law
wife, Felix Mendez, lived together for about 18 years. They had four children, the eldest of whom
was Juliana Marin, who was 15 years old at the time of the incidents. About one month prior to her death on October 10, 2008, Mendez began
having an affair with another man. Marin
testified he began suspecting the affair in early September 2008.
On September 14, 2008, Juliana and her mother
attended a quinceañera party without Marin.
Marin made numerous telephone calls to Juliana and her mother, demanding
they return home, which they did around midnight. When they arrived home, Marin was drunk, and
complained he had gotten telephone calls reporting Mendez was dancing with
someone else at the party. Marin
confronted Mendez, and a heated argument ensued. When Mendez tried to call the police, Marin
ripped the telephone out of her hands and began choking her. The noise brought Juliana out of her room,
and she was able to push Marin off her mother.
After Juliana intervened, Mendez called the police. Marin left the apartment before the police
arrived, and did not return. Juliana
testified this was the first time she had seen her parents involved in a
physical altercation.
A few days later, Marin
moved to Washington State
where he had relatives and was able to find work picking grapes and
apples. He sent money to Mendez and
frequently spoke with his family on the telephone. Marin and Mendez agreed to separate but to
remain friendly for the sake of their children.
On October 9, 2008, Marin took a bus back to Orange
County. He did not have a government identification
card, which was required to purchase a bus ticket, so his sister bought a
ticket for him, and he traveled under a false name. Marin’s friend picked him up from the bus
station and drove him to a motel in Huntington Beach,
where he rented a room for two nights.
Because the motel also required identification, the friend completed the
motel registration, but Marin signed the registration, again using a false
name. Marin testified he used false
names because he feared the police were still looking for him in relation to
the September 14 domestic abuse incident.
Marin called Mendez, and she agreed to meet him at the motel the next
day to iron out their differences over money.
On October 10, 2008, Juliana received several cell
phone calls from Marin while she was at school.
During these calls, Marin told Juliana to hurry up, and to bring him
food when she brought Mendez to the motel.
Juliana left school around noon
and went home, where she found her mother with a female friend. Mendez told Juliana she had no money to buy
food for Marin, so Juliana called Marin, who told her to come to the motel to
get some money. Juliana went to the
motel, where Marin gave her $20 and told her to have Mendez buy him some beer.
Juliana returned home,
picked up her mother, and the two stopped to buy tacos and beer for Marin on
their way back to the motel. Mendez
asked Juliana to pick her up in 30 minutes, and Marin gave Juliana money to pay
his cell phone bill. Juliana drove to a
friend’s house.
A short time later,
Juliana received a telephone call from Marin asking whether she had paid his
cell phone bill. Juliana heard her
mother in the background saying “come for me now.†Subsequently, Juliana received two cell phone
calls from Mendez asking to be picked up.
About five minutes after the second call, Juliana was ready to
leave. She called her mother several
times, but her calls went directly to voicemail. Juliana called Marin to ask him where Mendez
had gone; Marin told Juliana Mendez left and he did not know where she had
gone. Juliana tried unsuccessfully to
locate her mother. She again called
Marin. Marin maintained that he did not
know Mendez’s whereabouts, but said she was walking and would be home by 7:00 p.m.
Juliana drove along the street where the motel was located but gave up
looking, thinking perhaps Mendez had gotten a ride from her boyfriend.
Upon returning to her
friend’s house, Juliana called Marin to ask him for money so she could go
shopping. Marin told her that he had
left the motel and was expecting a ride, but he would give her money if she met
him. When Juliana found Marin, he gave
her about $400 and asked her to drive him to Santa Ana,
where he planned to get an identification card to take a bus to Chicago. Juliana testified that when she dropped Marin
off in Santa Ana, he seemed “jumpyâ€
and was chain-smoking. Marin told her to
go back to the motel because he left some jewelry and money in the room. He said she did not need a room key because
the window was open. He directed her to
pick up her siblings and told her Mendez would be waiting at the motel for
them. According to Juliana, Marin was
not emotional but was speaking quickly in a nervous way.
Juliana called her
brother, who told her Mendez was still not home. She drove back to the motel and entered
through the window. Upon opening the
drapes, Juliana saw her mother’s feet extending out of the bathroom. She ran towards the bathroom and found her
mother’s bloody body covered with stab wounds.
On her way out of the motel room, Juliana found a letter written in
Spanish, in her father’s handwriting.
(Relevant testimony and procedural issues related to the letter will be
described anon.) Juliana called out for
help, and the motel clerk ultimately telephoned the police.
The Orange County
Coroner’s Chief Forensic Pathologist testified Mendez had been strangled, but
the cause of death was multiple stab wounds.
The pathologist found 36 stab wounds, about half of which were
superficial. Three of the stab wounds
were independently life threatening: two
stab wounds to Mendez’s abdomen that pierced her liver, and a “large gaping
stab wound†that severed her trachea and left carotid artery. Mendez also had multiple defensive wounds to
her hands and arms, and broken fingernails, all of which indicated a struggle.
Police found food, an
empty beer can, cigarette butts, empty condom wrappers, a receipt from a bus, a
bus fare ticket, and a copy of the motel registration card in Marin’s
room. The police asked Juliana to make a
series of calls to Marin from her cellular telephone. During the first call, Juliana asked her
father why he killed her mother. Marin
responded “‘no one’s going to make a fool out of me’†or “‘make me look all
dumb.’†Marin hung up, and when Juliana
made a second call, he told her to go home with her brothers and to wait for
him there. During the last call, Juliana
asked Marin what would happen to her and her brothers; Marin began to cry and
said he was going to kill himself.
With the assistance of
the cellular service carrier, police were able to locate Marin. Police arrested Marin on a local transit bus
in Santa Ana. Police found a four‑inch folding knife
in Marin’s pocket. Mendez’s DNA was
recovered from blood found on the blade of the knife and Marin’s DNA was
recovered from the handle. Marin had
scratches on his chest, a cut on his left thumb, and an injury to his index
finger.
Marin’s
Trial Testimony
Marin testified that
when Mendez arrived at the motel, they were friendly and reached an agreement
about their money issues. Marin told
Mendez he had a job and a place to live in Washington,
and he wanted to move the family there.
They had sex twice, and Marin testified he was feeling happy about
Mendez and the family. Shortly after the
second time they had sex, Mendez received a cell phone call from her
boyfriend. Marin stated Mendez would not
let him answer the call. Marin took
Mendez’s cell phone and returned the call from it, telling the male caller to
stop coming around his wife, or he would “fuck [him] over.†(However, police testified the cell phone
records showed there was never a return call made from Mendez’s cell phone to
her boyfriend.)
Marin testified that
after receiving the cell phone call, he and Mendez began arguing. She demeaned his masculinity and called him
names. They began pushing each other,
and Marin choked Mendez to “shut her up.â€
Marin retrieved his grape-cutting knife from his backpack. When Mendez told him he did not “have the
balls†to use it, he stabbed her repeatedly until he realized she was
dead. He then wrote the letter to
Juliana, leaving it on the dresser. He
said that while he did not know what he was going to do next, he thought about
going to Mexico or back to Washington.
Marin testified about
his subsequent meeting with Juliana and confirmed most of what she said. However, he denied telling Juliana to go back
to the motel. Marin claimed he told Juliana
to go pick up her little sister and he would call her when he got back to the
motel. He also testified that when he
was arrested, he was on a bus to Huntington Beach and was going to turn himself
in.
The information charged
Marin with murder (§ 187, subd. (a)), and alleged he used a dangerous and
deadly weapon (a knife), in the commission of the murder (§ 12022, subd.
(b)(1)). The court instructed the jury
on first and second degree murder, and the lesser included offense of
passion. The jury found Marin guilty of
second degree murder and found it true he used a dangerous or deadly weapon in
the commission of that murder. The court
imposed a sentence of 16 years to life:
15 years to life for the murder conviction and a consecutive one-year
weapons enhancement.
DISCUSSION
Marin contends there is
murder conviction. He argues the
prosecution failed to prove malice aforethought because it failed to prove the
absence of provocation and heat of passion beyond a reasonable doubt. Moreover, he argues we should find
provocation and heat of passion existed as a matter of law and reduce the
offense to voluntary manslaughter. We
reject his contentions.
“In addressing a
challenge to the sufficiency of the evidence supporting a conviction, the
reviewing court must examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial
evidence—evidence
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]
The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence. [Citations.]
The same standard applies when the conviction rests primarily on
Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.] ‘“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment. [Citation.]â€â€™ [Citation.]â€
(People v. Kraft (2000) 23
Cal.4th 978, 1053.)
In the instant case,
Marin was charged with murder, and the court instructed the jury on both murder
and the lesser offense of voluntary manslaughter. “Murder is the unlawful killing of a human
being . . . with malice aforethought.†(§ 187, subd. (a).) Malice may be express or implied. It is express where “there is manifested a
deliberate intention†to kill; it is implied where “no considerable provocation
appears, or when the circumstances attending the killing show an abandoned and
malignant heart.†(§ 188.) In contrast, voluntary manslaughter is
defined as “the unlawful killing of a human being without
malice . . . upon sudden quarrel or heat of passion.†(§ 192, subd. (a).) “‘A murder . . . may be
reduced to voluntary manslaughter if the victim engaged in provocative conduct
that would cause an ordinary person with an average disposition to act rashly or
without due deliberation and reflection.’
[Citation.]†(
759; see also People v. Danielly (1949)
33 Cal.2d 362, 385 [“The decisive factor in determining which crime has been
committed is the defendant’s state of mindâ€].)
Marin correctly asserts
that when murder and voluntary manslaughter are under joint consideration, the
burden is on the prosecution to prove, beyond a reasonable doubt, the absence
of a sudden quarrel or heat of passion, in order to establish the malice
element of murder. (People v. Rios (2000) 23 Cal.4th 450, 454.) However, “[e]ven if defendant’s testimony
provided some evidence of provocation for the jury to consider, it remains the
jury’s exclusive province to decide whether the particular facts and
circumstances are sufficient to create a reasonable doubt as to whether the
defendant acted under a heat of passion.
[Citations.]†(
350.) “‘The jury was not required to
accept defendant’s version of the killing.
[Citations.]’ [Citation.]†(People
v. Harris (1971) 20 Cal.App.3d 534, 537.)
Here, the court properly instructed the jury on both murder and
voluntary manslaughter and upon review, we “‘credit jurors with intelligence
and common sense’ [citation] and presume they generally understand and follow
instructions [citation].†(
52 Cal.4th 610, 670.)
The question before us
then is whether, when examining the whole record in the light most favorable to
the judgment, a reasonable jury could have found Marin possessed the malice
necessary to support a second degree murder conviction. Upon review, we find there was substantial
evidence of malice, sufficient to support the jury’s verdict.
The autopsy results
confirmed Mendez was manually strangled prior to her death. After strangling Mendez, Marin used his
four-inch grape-cutting knife to stab her 36 times. The cause of death was multiple stab wounds,
three of which were independently life threatening: two pierced her liver and a third severed her
trachea and left carotid artery. We agree
with the Attorney General that these facts alone support a finding of
malice. (See People v. Bolden (2002) 29 Cal.4th 515, 561 [“In plunging the knife
so deeply into such a vital area . . . defendant could have
had no other intent than to killâ€].)
Because a reasonable jury could have concluded Marin intended to kill
Mendez, it was justified in finding malice sufficient to return a conviction
for second degree murder.
Marin does not dispute
the finding he acted with the intent to kill, but instead argues that the
murder conviction should be reduced to voluntary manslaughter because the
killing occurred in the heat of passion.
Marin’s contention is supported almost exclusively by the testimony he
gave as to his state of mind at the time of the killing. “‘Although we must ensure the evidence is
reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder. [Citations.]’
[Citation.]†(
1206.)
We find reasonable
jurors could reject Marin’s version of the killing. Marin traveled under a false name to come
from Washington to California, bringing the murder weapon with him, and used a
second false name to check into the motel.
He testified he used Mendez’s cell phone to return Mendez’s boyfriend’s
call, but the telephone records show there was never a return call made from
Mendez’s cell phone. His testimony
contradicted that of Juliana’s with regard to his instructions after she
dropped him off in Santa Ana, and her subsequent actions were consistent with
her version of his instructions, but not with his. The verdict was supported by substantial
evidence and the jury was reasonable in its rejection of the defense’s heat of
passion argument.
Marin relies on
515 (Berry) and People v. Borchers (1958) 50 Cal.2d 321, 328-329 (
unfaithful wife or a lover’s infidelity constitute provocation sufficient to
arouse a defendant’s heat of passion such that the murder should, as a matter
of law, be reduced to voluntary manslaughter.
However, both cases are distinguishable on procedural grounds. In Berry,
the failure of the trial court to instruct the jury on voluntary manslaughter
resulted in prejudicial error. (
both murder and voluntary manslaughter, and, as previously discussed, the jury
necessarily rejected voluntary manslaughter by finding Marin guilty of second
degree murder.
In Borchers, the trial court exercised its authority under section
1181, reducing a second degree murder conviction to voluntary
manslaughter. (Borchers, supra, 50 Cal.2d at p. 328.) The Supreme Court affirmed the trial court’s
ruling, finding that “[f]rom the evidence viewed as a whole the trial judge
could well have concluded that defendant was roused to a heat of ‘passion’ . . . .†(Ibid.) Here, the trial court had the authority to
reduce Marin’s murder conviction to voluntary manslaughter, but instead entered
judgment on the jury’s verdict. “When
reviewing the sufficiency of evidence . . . the relevant
inquiry is ‘“whether . . . any rational trier of fact could have found the essential elements
of the allegation beyond a reasonable doubt.’â€
[Citations.] We presume in
support of the judgment the existence of every fact the trier of fact
reasonably could infer from the evidence.
[Citation.] . . . A reviewing court neither reweighs
evidence nor reevaluates a witness’s credibility. [Citation.]â€
(People v. Lindberg (2008) 45
Cal.4th 1, 27.) Having examined the
record, we do not feel constrained to hold the evidence is legally inadequate
to support a verdict of second degree murder.
Marin contends the trial
court erred by admitting an English translation of the letter to Juliana found
in his motel room. We reject his
contention.
begin with some background. The letter
Juliana found in the motel room was written by Marin in Spanish, and the
prosecution had it translated by a court certified interpreter into
English. The English translation read as
follows:
“‘Juliana Marin is my
daughter. [Address and telephone number
omitted.] Fidelio Marin and my wife is
Felix Mendez. Look, my daughter, I did
what I did because of what your mother did to me. It hurt me a lot. I want you to take care of your brothers and
take care of each other and be good with your Aunt Lettie because she will be
better
- - she will take better care of you than your mother did. Because your mother would leave you alone all
the time. Forgive me for what I did. I couldn’t stand it anymore. And tell your mother’s friends to go fuck
themselves. If they come near you, chase
them out of the house and ask them if they are happy now. And if your mother’s friends come to see you,
chase them out of the house. And I
didn’t find that son of a bitch because I was also going to kill him. My four children, forgive me. [Children’s names omitted.] Dad who loved you very much.’â€
During pretrial
hearings, defense counsel refused to
stipulate to the accuracy of the translation, because she believed the interpreter
had taken “some liberties in cleaning [the letter] up.†However, defense counsel subsequently agreed
cross-examination
of the interpreter would suffice in pointing out claimed inaccuracies in the
translation. The trial court noted
defense counsel’s objection went to weight and not admissibility of the letter,
and defense counsel agreed she was not objecting to the relevancy of the
letter. During jury selection, defense
counsel indicated she would prefer the matter to be handled as a hearing
outside the presence of the jury because “if the People want to at some
point . . . admit the interpretation into evidence, once
she’s testified to it, it’s in front of the jury obviously and that is my
concern.†The court deferred the matter,
and defense counsel did not raise any further objection prior to or during the
interpreter’s testimony.
The interpreter
testified the handwriting in the letter was not very clear, suggesting the
author had very little schooling. Marin
later testified he stopped going to school around the age of eight. The interpreter further testified the syntax,
spelling, and grammar were wrong, and it would have been difficult even for a
Spanish speaker to make sense of the letter’s meaning. On cross-examination, the interpreter testified
there were times when she made a choice between the interpretation of slang or
words. She stated translations are not
normally made word by word, but the translation is meant to reflect the intent
or meaning of the words.
After the interpreter
testified, defense counsel agreed to allow the original Spanish letter into
evidence, but objected under Evidence Code section 352 to the admission of a
copy of the English translation of the letter, i.e., the letter’s prejudicial
effect outweighed its probative value.
The court overruled the objection, finding it was a matter of weight,
and not admissibility, and because the interpreter had already read her
translation of the letter into the record, the prejudicial effect did not
outweigh the probative value. The court
further reminded defense counsel she was free to emphasize to the jury in
argument that the written translation was not an exact translation of the
original Spanish letter.
The Attorney General
contends Marin failed to properly object to admission of the English
translation of the letter, waiving the issue on appeal. We agree.
“A verdict or finding
shall not be set aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to
or a motion to exclude or to strike the evidence that was timely made and so
stated as to make clear the specific ground of the objection or motion; and (b)
The court which passes upon the effect of the error or errors is of the opinion
that the admitted evidence should have been excluded on the ground stated and
that the error or errors complained of resulted in a miscarriage of
justice.†(Evid. Code, § 353.)
Marin argues he
adequately objected prior to trial in an Evidence Code section 402 hearing, and
again when the prosecution introduced a written copy of the translation into
evidence. We disagree. While defense counsel refused to stipulate to
the accuracy of the interpreter’s translation, she agreed the matter could be
handled on
cross-examination. Later, even though defense counsel suggested
the interpreter’s testimony might be better handled as a hearing outside the
presence of the jury, she failed to renew the objection when the interpreter
took the stand. Furthermore, defense
counsel did not object when the prosecution asked the interpreter to read the
English translation into the record.
When defense counsel later objected to the admission of a copy of the
translated letter into evidence, the court properly overruled the objection,
finding the prejudicial value did not outweigh the probative value because the
translation had already been read into the record. (Evid. Code, § 352.) Defense counsel had multiple opportunities
during trial to object to the admission of the interpreter’s translation of the
letter, and failed to do so, thus waiving the issue on appeal.
Marin next asserts
defense counsel was not required to make any further objection because doing so
during trial would have been futile. There
is nothing in the record to suggest that properly raising an objection to the
interpreter’s testimony would have been futile.
When defense counsel indicated she would prefer the matter to be handled
outside the presence of the jury, the court deferred, suggesting she was free
to renew her objection when the prosecution called the interpreter to testify.
Finally, Marin contends
even if the objection was waived, the trial court’s error in admitting the
English translation of the letter affected the validity of the final judgment,
and should thus be preserved on appeal.
We disagree. Even if Marin had
adequately objected, we would find no reversible
error.
First, the parties
agreed the letter was relevant to the case, and on review, we find that an
English translation was proper and not unduly prejudicial. “When the written characters in a writing
offered in evidence are incapable of being deciphered or understood directly, a
translator who can decipher the characters or understand the language shall be
sworn to decipher or translate the writing.â€
(Evid. Code, § 753, subd. (a).)
Because the letter was written in Spanish, and, according to the
interpreter, was difficult to decipher even in Spanish, it was proper for a
court-appointed interpreter to translate the writing.
Marin does not object to
the meaning of the letter being introduced, but contends “the jury got a
version that removed appellant’s language, misspellings, poor grammar, slang,
and other parts that were highly relevant to his claim of acting under extreme
passion.†However, the interpreter
testified to the changes she made to the letter during the translation, and
defense counsel was free to cross-examine the interpreter as to the accuracy of
the translated meaning. Moreover,
defense counsel was free to present an alternate translation or to call another
interpreter, and, as the court pointed out, to remind the jury the English
version was not an exact translation of the original Spanish letter.
Second, once the
interpreter had testified to her translation, there was no error in admitting
the physical document because the English translation had already been read
into the record. “The issue of the
relevance of evidence is left to the sound discretion of the trial court, and
the exercise of that discretion will not be reversed absent a showing of
abuse. [Citations.] That discretion is only abused where there is
a clear showing the trial court exceeded the bounds of reason, all of the circumstances
being considered. [Citations.]†(People
v. DeJesus (1995) 38 Cal.App.4th 1, 32.)
There is nothing in the record to suggest the trial court abused its
discretion in admitting the physical document, and we find the admission of the
physical letter was proper and not unduly prejudicial.
Marin contends we should
strike from the abstract of judgment references to a $200 restitution fine
imposed under section 1202.4, subdivision (b), and a $200 parole revocation
fine imposed under section 1202.45. At
sentencing, the trial court did not orally impose the restitution fine or
parole revocation fine—its only comment on the matter was to advise Marin
“appropriate fines and fees will be taken out of your prison pay.†The prosecutor did not object to the trial
court’s omission, but the clerk’s minutes and the abstract of judgment show
both fines were imposed.
“The clerk cannot
supplement the judgment the court actually pronounced by adding a provision to
the minute order and the abstract of
judgment. [Citation.]
. . . [T]he clerk’s minutes must accurately reflect what
occurred at the [sentencing] hearing.†(
380, 387-388 (Zackery).) “When there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract of judgment, the
oral pronouncement controls.
[Citations.]†(
1364, 1367, fn. 3.)
“Under subdivision (b)
of . . . section 1202.4, a trial court must impose ‘a separate and additional restitution fine’ as part of
the judgment of conviction entered against a criminal defendant, ‘unless it
finds compelling and extraordinary reasons for not doing so, and states those
reasons on the record.’ If the ‘sentence
includes a period of parole,’ then the court must also impose a parole revocation fine ‘in the same amount as
that imposed pursuant to subdivision (b) of [s]ection 1202.4.’ [Citation.]â€
(People v. Smith (2001) 24
Cal.4th 849, 851, fns. omitted.)
To impose these fines,
the trial court must include them in its oral pronouncement of sentence in the
presence of the defendant. (
pp. 386-387.) The trial court’s passing
observation to Marin that “appropriate fines and fees†would be taken out of
his prison pay, did not constitute oral pronouncement of imposition of the
restitution and parole revocation fines.
If the trial court does not include the fines in its oral pronouncement
of sentence, the court clerk may not include the fines in the court’s minutes
or the abstract of judgment. (
471; Zackery, supra, 147 Cal.App.4th at pp. 387-388.) If the clerk does so, the fines must be
stricken from the minutes and the abstract of judgment. (Id.
at pp. 387-389.) Moreover, we are bound
by our Supreme Court’s holding in People
v. Tillman (2000) 22 Cal.4th 300, 303, that the People’s failure to object
to the court’s omission of the restitution fines precludes correction on
appeal. Accordingly, we conclude the
references to these fines in the minutes and abstract are clerical errors at
variance with the judgment that must be corrected.
DISPOSITION
The trial court is
ordered to modify the abstract to omit any reference to the restitution (§
1202.4, subd. (b)) or parole revocation (§ 1202.45) fines. The trial court is further directed to send a
certified copy of the modified abstract of judgment to the Department of
Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
O’LEARY,
P. J.
WE CONCUR:
RYLAARSDAM, J.
ARONSON, J.
further statutory references are to the Penal Code, unless otherwise indicated.
