P. v. Perez
Filed 10/21/08 P. v. Perez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----
THE PEOPLE, Plaintiff and Respondent, v. RODOLFO PEREZ, Defendant and Appellant. | C059070 (Super. Ct. No. CRF06820) |
In November 2006, defendant Rodolfo Perez and Rigoberto P. went up to David Kerths camper and began chatting with Kerth, who ultimately agreed to give them a ride. When Rigoberto said that he needed to stop to use the bathroom, Kerth opened the camper to get toilet paper. Defendant then came up behind Kerth, put a gun to his head, and made him lie on the ground. Defendant threatened to shoot Kerth, kicked him in the side of the head and neck, tied his hands, put him in the back of the camper, and drove away. Kerth was able to escape the restraints and kick his way out of the camper. Defendant then rolled the camper.
Defendant was charged with multiple counts, including carjacking, kidnapping, felony assault, and vehicle theft, and enhancements related to use of a firearm. In a negotiated disposition, he pled guilty to carjacking and admitted personally using a firearm. In exchange for his pleas, he was to receive an aggregate sentence of 10 years in state prison, and the remaining charges were dismissed.
In accordance with the plea agreement, defendant was sentenced to an aggregate term of 10 years in state prison, and the court imposed a $200 restitution fine and a $200 restitution fine suspended unless parole is revoked.
On appeal, defendant contends that the abstract of judgment erroneously reflects the imposition of two restitution fines of $2,000, rather than $200, each. He is right. Indeed, the People have filed a letter brief that joins in the Appellants Opening Brief, citing California Rules of Court, rule 8.200(a)(5).
The pronouncement of judgment is a judicial function, while entries into the minutes and abstract of judgment are clerical functions; thus, any variance between the oral pronouncement of sentence and the minute order or abstract of judgment is presumed to be clerical error, and the oral pronouncement of judgment and sentence controls. (People v. Mesa (1975) 14 Cal.3d 466, 471.) An appellate court has the authority to correct such clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187; People v. Rowland (1988) 206 Cal.App.3d 119, 123.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the court imposed a $200 restitution fine (Pen. Code, 1202.4) and another $200 restitution fine, which the court suspended unless parole is revoked (Pen. Code, 1202.45), and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
SCOTLAND, P.J.
We concur:
BLEASE , J.
DAVIS , J.
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