P. v. Melendrez
Filed 7/19/13
P. v. Melendrez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LORENZO EDUARDO MELENDREZ,
Defendant and
Appellant.
F065490
(Super.
Ct. No. VCF248412)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Valeriano Saucedo, Judge.
Gregory L.
Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S.
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
This appeal involves a discrepancy between the reporter’s
transcript of the sentencing hearing and the minute order arising from that
hearing. In keeping with the general
rule, we adopt the trial court’s oral pronouncement as the intended sentence
and modify the judgment accordingly. As
modified, the judgment will be affirmed.
FACTS AND PROCEDURAL HISTORY
On February
10, 2011, defendant and appellant Lorenzo Eduardo Melendrez fired a gun at a
car occupied by the victims, indentified as M.M. and B.G. Subsequently, defendant pled no contest to
charges of shooting at an occupied vehicle (count I, Pen. Code, § 246);
assault with a semiautomatic firearm on M.M. (count II, Pen. Code, § 245,
subd. (b)); and assault with a semiautomatic firearm on B.G. (count III,
As to counts II and III, defendant admitted that he personally used a
firearm during the commission of the offense (Pen. Code, § 12022.5, subd.
(a)). (Each of the three counts was
alleged to be a serious and violent felony under the “Three Strikes†law.) Defendant was sentenced to an operative
prison sentence of six years. The court
imposed a restitution fine of $2,600.
(Pen. Code, § 1202.4.) It
imposed and stayed a parole revocation restitution fine of $3,600. (See id.,
§ 1202.45.) The minute order and
the abstract of judgment, however, both indicated that the court had imposed a
restitution fine of $3,600.
DISCUSSION
Defendant
contends, and respondent agrees, that when there is a discrepancy between the
oral pronouncement of judgment and the minute order or the abstract of
judgment, the oral pronouncement controls.
(See People v. Mitchell (2001)
26 Cal.4th 181, 185.) Accordingly, both
parties request that this court modify the minute order to conform to the oral
pronouncement of judgment, and we will do so.
Defendant
also contends, and respondent agrees, that the parole revocation restitution
fine required by Penal Code section 1202.45 is, by the terms of the statute,
required to be in the same amount as the restitution fine imposed under Penal
Code section 1202.4. Both parties
request that we modify the minute order to conform to that requirement, and we
will correct the unauthorized sentence by doing so.
DISPOSITION
The minute
order of May 31, 2012, is modified to reflect the imposition of a restitution
fine in the sum of $2,600 pursuant to Penal Code section 1202.4. The minute order of May 31, 2012, is further
modified to impose a parole revocation restitution fine in the sum of $2,600
pursuant to Penal Code section 1202.45.
As modified, the judgment is affirmed.
The trial court shall cause the preparation of an amended abstract of
judgment reflecting these modifications, which it shall transmit to the
appropriate authorities.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Levy, J. and Peña, J.
