P. v. Chavez
Filed 4/22/13 P. v. Chavez 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY RALPH CHAVEZ,
Defendant and Appellant.
C072573
(Super. Ct. No.
CR122782)
Appointed
counsel for defendant Anthony Ralph Chavez has asked this court to review the
record to determine whether there exist any
v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment, but order the
abstract of judgment corrected as we explain post.
On June 14, 2012, defendant sold
approximately 3.4 grams of methamphetamine to an undercover agent. Defendant was driving a stolen vehicle. When law enforcement attempted to stop
defendant, he fled.
On June 27, 2012, law enforcement
located defendant in Sacramento,
driving the same stolen vehicle. Law
enforcement attempted to stop him and he fled again. He drove “recklessly†to evade law
enforcement; he ran through red light intersections and, although it was
evening, he did not turn on the car’s headlights. Law enforcement ended their pursuit “for fear
of public safety.†They later found the
stolen vehicle with .5 grams of heroin inside.
On July 10, 2012, defendant (in a
different stolen vehicle) negotiated the sale of half an ounce of
methamphetamine to another undercover agent.
When defendant arrived at the location agreed upon for the sale,
uniformed law enforcement officers attempted to arrest him. Defendant ran from the officers but was
ultimately detained. The officers found
.2 grams of heroin and .5 grams of marijuana in defendant’s possession.
Defendant
was arrested and subsequently charged with the following: (1) transporting methamphetamine, a
controlled substance (Health & Saf. Code, §11379, subd. (a)); (2) selling
methamphetamine, a controlled substance (Health & Saf. Code, § 11379,
subd. (a)); (3) two counts of theft of a vehicle, with a prior felony
conviction for vehicle theft (Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5, subd.
(a)); (4) two counts of transporting heroin, a controlled substance (Health
& Saf. Code, § 11352, subd. (a)); (5) evading a peace officer with
reckless driving (Veh. Code, § 2800.2); (6) conspiracy to sell
methamphetamine, a felony (Pen. Code, § 182, subd. (a)(1)); (7) offering
to sell methamphetamine, a controlled substance (Health & Saf. Code,
§ 11379, subd. (a)); (8) purchase or receipt of a stolen vehicle (Pen.
Code, § 496d, subd. (a)); (9) evading a peace officer (Veh. Code,
§ 2800.1, subd. (a)); and (10)
resisting or obstructing a peace officer (Pen. Code, § 148, subd.
(a)(1)). It was further alleged that
defendant previously served three prison terms.
(Pen. Code, § 667.5, subd. (b).)
Defendant
pleaded no contest to one count of transporting methamphetamine in violation of
Health and Safety Code, section 11379, subdivision (a) and one count of theft
of a vehicle with a prior conviction for theft of a vehicle in violation of
Vehicle Code section 10851, subdivision (a) and Penal Code section 666.5,
subdivision (a). Defendant also admitted
to serving three prior prison terms (Pen. Code, § 667.5, subd. (b)).
In exchange
for his plea, the People agreed to a sentencing lid of eight years (to be
served in “county prisonâ€) and to dismiss the remainder of the charges and
allegations. The People also agreed
defendant was eligible for a “split sentence†under the terms of Penal Code
section 1170, subdivision (h)(5)(b).
The trial
court sentenced defendant in accordance with his plea to a “split
sentenceâ€: 1947 days in custody and 973
days of mandatory supervision. Defendant
was awarded custody credit and ordered
to pay various fines and fees. Defendant
appeals without a certificate of probable cause.
Counsel
filed an opening brief that sets forth the facts of the case and asks us to
determine whether there are any arguable issues on appeal. (Wende,
supra, 25 Cal.3d 436.) Counsel advised defendant of the right to
file a supplemental brief within 30 days of the date of filing of the opening
brief. More than 30 days have elapsed,
and we have received no communication from defendant. We have undertaken an examination of the
entire record and find no arguable error that would result in a disposition
more favorable to defendant.
We do,
however, find error in the abstract of judgment. The trial court orally imposed a $50 crime
lab analysis fee plus a $150 penalty assessment (Health & Saf. Code,
§ 11372.5). Those fees are not
reflected in the abstract of judgment.
It is the
oral imposition of sentence that constitutes the judgment in an action. (People
v. Mitchell (2001) 26 Cal.4th 181 (Mitchell),
185; People v. Zackery (2007)
147 Cal.App.4th 380, 387-388 (Zackery).) This means it is the oral rendition of
judgment that must specify the amounts and statutory bases for all fines and
fees that the court imposes (People v.
High (2004) 119 Cal.App.4th 1192, 1200 (High)), or at a minimum include an incorporation of an accurate
written breakdown by reference.
Further,
because the abstract of judgment is the order that executes the judgment by transferring
defendant into custody and authorizing the performance of its provisions (
p. 185; In re Black (1967)
66 Cal.2d 881, 889-890), it must be an accurate summary of the judgment,
including all fines and fees. (
p. 1200; Zackery, supra,
147 Cal.App.4th at pp. 387-388; People
v. Sanchez (1998) 64 Cal.App.4th 1329, 1332; People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) Here, the abstract fails to reflect the full
judgment.
Further, at
sentencing the trial court incorporated the written breakdown of fines and fees
found on the “first page of [defendant’s] mandatory supervision terms and
conditions.†That breakdown of fines and
fees includes a $240 restitution fine under Penal Code section 1202.4,
subdivision (b). That fine also was
omitted from the abstract of judgment.
We must direct correction of the abstract accordingly.
The
judgment is affirmed. The trial court
shall prepare a corrected abstract of judgment in accordance with our
directions in this opinion and forward a certified copy to the
DUARTE , J.
We concur:
ROBIE , Acting
P. J.
MAURO , J.
