P. v. Silver
Filed 12/17/12 P. v. Silver CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ADAM LANCE SILVER,
Defendant and Appellant.
B240273
(Los Angeles
County
Super. Ct.
No. MA051038)
APPEAL from
a judgment of the Superior Court
of
County, Bernie C. LaForteza, Judge. Affirmed as modified.
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and Zee
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
___________________
Pursuant to a negotiated agreement, Adam Lance Silver
pleaded no contest to two counts of committing a lewd act upon a child under
the age of 14 years and was sentenced to an aggregate state prison term of 10
years. On appeal Silver contends the
minute order entered following his sentencing hearing and the abstract of
judgment should be corrected to conform to the trial court’s oral pronouncement
of judgment, which did not include any penalty assessments on the sex offender
fine. He also contends the trial court
miscalculated his presentence custody credit.
We affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Silver was
charged in an information with two counts of committing a lewd act upon a child
under the age of 14 years between August and October 2010 (Pen. Code,
§ 288,
subd. (a))
title="">[1] with a special allegation
he had suffered two prior serious or violent felony conviction within the
meaning of the “Three Strikes†law (§§ 667, subds. (b)-(i); 1170.12, subds.
(a)-(d)). Silver pleaded not guilty and
denied the special allegation.
Represented
by appointed counsel, Silver agreed to plead no contest to both charges and to
admit one of the two prior strike allegations.
In accordance with the terms of the negotiated agreement, on January 31,
2012 Silver was sentenced to an aggregate state prison term of 10 years: six years (the lower term of three years
doubled under the Three Strikes law) on one count and a consecutive term of
four years (one-third the middle term of six years doubled under the Three Strikes
law) on the second count. The court
ordered Silver to pay a $40 court operations assessment and a $30 criminal
conviction assessment on each count, a $300 sex offender fine and a $600
restitution fine. The court imposed and
suspended a parole revocation fine pursuant to section 1202.45. The court dismissed the remaining special
allegation on the People’s motion.
Silver was awarded a total of 507 days of presentence custody credit
(441 actual days and 66 days of conduct credit).
DISCUSSION
1. The
Trial Court Erred in Failing To Impose Certain Mandatory Penalty Assessments
When sentencing Silver, the trial court ordered him to
pay a $300 sex offender fine pursuant to section 290.3, subdivision (a).
assessments in its oral pronouncement of judgment. Nonetheless, the minute order entered
following the sentencing hearing, as well as the abstract of judgment, reflect
the court’s imposition of $840 in penalty assessments on that fine. Although he does not dispute the calculation
of the penalty assessments or claim an inability to pay the fine, Silver argues
the $840 in penalty assessments should be stricken to conform to the oral
pronouncement of judgment.
Generally,
when there is a discrepancy between the oral pronouncement of judgment and the
minute order of the judgment, the oral pronouncement controls. (People
v. Mitchell (2001) 26 Cal.4th 181, 185-186; see People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“[w]here
there is a discrepancy between the oral pronouncement of judgment and the
minute order or the abstract of judgment, the oral pronouncement
controlsâ€].) However, once the trial
court has determined a defendant is required to pay the fine prescribed by
section 290.3, subdivision (a), it is jurisdictional error not to impose the mandatory
penalties and surcharges established by section 1464, subdivision (a), and
Government Code section 76000, subdivision (a), and related
provisions. (People v. Stewart (2004) 117 Cal.App.4th 907, 910; see
1151, 1157.)
Having concluded Silver was able to
pay the sex offender fine, the trial court was required to impose the penalties
mandated by these statutory provisions.
Accordingly, we modify the oral pronouncement of judgment to include the
$840 in penalty assessments. (See People
v. Smith (2001) 24 Cal.4th 849, 854 [an unauthorized sentence may be
corrected at any time whether or not there was an objection in the trial
court]; People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is
generally ‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular caseâ€; in such circumstances “[a]ppellate courts
are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencingâ€]; People v. Hong (1998)
64 Cal.App.4th 1071, 1075 [failure to impose a mandatory fine is jurisdictional
error, which can be raised for first time on appeal and corrected by modifying
the judgment].) The minute order and
abstract of judgment, which included the penalty assessments, require no
correction.
2. The
Trial Court Did Not Miscalculate Silver’s Actual Custody Credits
The trial
court awarded Silver 507 days of presentence credit (441 actual days and
66 days of conduct credit).
name="_ftnref3" title="">[3] Silver contends he was arrested on
November 7, 2010, as reflected on one page of the probation officer’s
report, not on November 17, 2010, as the court believed, and thus served
451, not 441, days in actual custody.
In support of his contention Silver
points to a box on the second page of the probation officer’s report with a
typed “Arrest Date†of November 7, 2010.
However, the probation officer’s narrative of the offenses and the
preliminary hearing transcript establish the victim reported the lewd acts on
November 11, 2010 to the police, who then arrested Silver and took him
into custody on November 17, 2010.
The typed date in the probation officer’s report appears simply to be a
clerical error. Silver was properly
awarded 441 days of actual custody credit.
DISPOSITION
The
oral pronouncement of judgment is modified to reflect imposition of $840 in
mandatory penalty assessments based on the section 290.3, subdivision (a) sex
offender fine. As modified, the judgment
is affirmed.
PERLUSS,
P. J.
We concur:
WOODS,
J.
ZELON,
J.
who is convicted of any offense specified in subdivision (c) of Section 290
shall, in addition to any imprisonment or fine, or both, imposed for commission
of the underlying offense, be punished by a fine of three hundred dollars
($300) upon the first conviction . . . unless the court determines that the
defendant does not have the ability to pay the fine. . . .â€
