Filed 7/6/17 P. v. Hauge 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

COLIN CHRISTOPHER HAUGE,

Defendant and Appellant.


C083414

(Super. Ct. No. P15CRF0128)


Appointed counsel for defendant Colin Christopher Hauge asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Having reviewed the record, we discovered errors in the abstract of judgment involving the probation revocation fine, restitution fine, and parole revocation fine. We shall correct the abstract of judgment to conform to the oral pronouncement of judgment. In all other respects, the judgment is affirmed.
We provide the following brief description of the facts and procedural history. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In June 2015, defendant pleaded no contest to domestic violence, driving under the influence of alcohol, and two counts of battery. The court suspended imposition of sentence and granted defendant four years’ probation, conditioned on serving 365 days in county jail.
On July 13, 2015, a “petition in lieu and order for revocation of probation” was filed in the trial court alleging defendant violated his probation by committing another act of domestic violence. The trial court revoked defendant’s probation and issued a criminal protective order, requiring defendant to stay away from his victim. Defendant admitted the violation. The court reinstated probation on the same terms and conditions.
On September 16, 2015, defendant’s victim (who also is his wife) asked to have the criminal protective order terminated. The court granted her request, but expressed its reservations.
In November 2015, the trial court received notification defendant enrolled in a 52-week batterer’s program and an 18-month DUI program.
On July 25, 2016, the probation department filed a petition to revoke defendant’s probation, alleging defendant violated his probation by leaving the state without informing his probation officer and testing positive for alcohol. The trial court revoked defendant’s probation. Defendant denied the allegations.
The trial court presided over a contested probation revocation hearing on September 26, 2016. At that hearing Deputy Rodney Ginocchio from the Douglas County, Nevada Sheriff’s Department testified that on July 24, 2016, he was contacted by Harrah’s and Harvey’s security personnel to “attend to a matter” in their employee parking garage.
Deputy Ginocchio went to the garage and found defendant standing next to the driver’s side door of a car; defendant’s wife was on the passenger side. Deputy Ginocchio smelled alcohol emanating from defendant. Defendant said he had only ordered a “coke” from the bartender inside the casino; if the bartender added alcohol to his drink, defendant was “unaware.” Defendant admitted he was on probation and submitted to a “preliminary breath test.” The test indicated defendant’s blood-alcohol content was at 0.048 percent. Defendant also told Deputy Ginocchio he did not have permission to be in Nevada.
The trial court found true the allegations in the petition to revoke defendant’s probation. The court then set the matter for judgment and sentencing.
At the sentencing hearing on October 31, 2016, the trial court found defendant’s performance on probation “unacceptable.” Accordingly, the court sentenced defendant to serve three years in state prison and 365 days in county jail. The court awarded him 57 days of custody credits.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that we review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Our review of the record discloses an error in the judgment. When defendant was initially granted probation, the trial court imposed but stayed a $300 probation revocation fine pursuant to Penal Code section 1202.44. When the trial court revoked defendant’s probation and sentenced him to prison, the court should have imposed the stayed fine. The court did not and its failure to do so results in an unauthorized sentence we can correct at any time. (People v. Smith (2001) 24 Cal.4th 849, 854.)
We also note a discrepancy between the oral pronouncement of judgment and the abstract of judgment. When defendant was sentenced to prison on October 31, 2016, the trial court “reaffirmed” the “previous fines and fees that were ordered.” The court explained: “The minimal -- they were the minimum fines and fees, I believe, those are just confirmed.” The minimum restitution fine is $300 (Pen. Code, § 1202.4), as are the minimum revocation fines (Pen. Code, §§ 1202.44 & 1202.45), and when defendant was initially granted probation, the trial court ordered him to pay a $300 restitution fine under Penal Code section 1202.4, and stayed a $300 probation revocation fine. The abstract of judgment reflecting defendant’s current prison sentence, however, reflects a $150 restitution fine (Pen. Code, § 1202.4) and a $150 parole revocation fine (Pen. Code, § 1202.45).
Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Under our inherent authority to correct such clerical errors (People v. Rowland (1988) 206 Cal.App.3d 119, 123; People v. Anthony (1986) 185 Cal.App.3d 1114, 1125-1126), we shall order the correction of the abstract of judgment to conform to the trial court’s oral pronouncement of judgment.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is corrected to impose the previously stayed $300 probation revocation fine. The trial court is instructed to correct the abstract of judgment to reflect imposition of a $300 restitution fine pursuant to Penal Code, section 1202.4 and a $300 parole revocation fine pursuant to Penal Code, § 1202.45. The court is further instructed to forward a certified copy of the corrected abstract of judgment to the El Dorado County Sheriff’s Office and the California Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.



/s/
HOCH, J.



We concur:



/s/
BUTZ, Acting P. J.



/s/
MURRAY, J.