People v. Fotiou CA4/2

• Court: California Court of Appeal
• Decided: June 17, 2021
• Docket: E075518
• Status: Unpublished

Opinion

Filed 6/17/21 P. v. Fotiou CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075518

v. (Super.Ct.No. FVI19001816)

CHRISTOPHER DANIEL FOTIOU, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Tony Raphael,

Judge. Affirmed in part and remanded with directions.

Christopher Love, under appointment by the Court of Appeal, for Defendant and

Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, and Robin Urbanski and

Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

1 A jury convicted Christopher Daniel Fotiou of possessing false or misleading

registration tags and receiving a stolen vehicle. The court sentenced him to an aggregate

term of nine years four months.

On appeal Fotiou argues, and the People agree, that there are clerical errors in the

court’s oral pronouncement of sentence, the minute order, and the abstract of judgment.

Specifically, the parties argue that the trial court inadvertently switched which count

referred to which crime, and the minute order and abstract of judgment corrected this

mistake but swapped the sentences. We agree and will therefore correct these errors on

appeal, but otherwise affirm the judgment.

I

FACTS

Because they are irrelevant to the issue on appeal, we do not summarize the facts

underlying Fotiou’s convictions. Suffice it to say, a jury found Fotiou guilty of

possessing false registration (Veh. Code, § 4463, subd. (a), count 1) and receiving a

stolen vehicle (Pen. Code, § 496d, count 2). Fotiou admitted he had three prior

convictions for stealing cars (Pen. Code, § 666.5), a prior strike (Pen. Code, §§ 1170.12,

subds. (a)-(d), 667 subds. (b)-(i)), and previously served six prison terms. (Pen. Code,

§ 667.5, subd. (b).)

At sentencing, the trial court stated it was imposing the “[u]pper term on Count 1

which is the violation of Penal Code Section [496d, subdivision (a)],” which was four

years. However, count 1 was actually the false registration charge. The court continued

2 this misattribution by stating “[a]s to Count 2, possession of a false or blank registration,

in violation of Vehicle Code Section 4463[,subdivision](a),” and imposing a term of

“one-third the mid term of 3 years or 8 months.”1 The court then doubled each term due

to the prior strike to arrive at an aggregate term of nine years four months.

The minute order correctly noted that count 1 was the false registration charge but

reflects an eight-year term for that conviction. Additionally, the minute order reflects a

term of 16 months for count 2, the receipt of a stolen vehicle conviction. The abstract of

judgment reflects the counts, convictions, and terms from the minute order.

Fotiou timely appealed.

II

ANALYSIS

Fotiou argues, and the People agree, that the court’s oral pronouncement of

sentence, the minute order, and the abstract of judgment contain inadvertent, clerical

errors.

“It is well established that a sentence which is the result of clerical error (in the

sense of inadvertence, though committed by the judge) may be corrected at any time, by

the trial court or the reviewing court.” (People v. Menius (1994) 25 Cal.App.4th 1290,

1294-1295.)

1 The midterm for a violation of Vehicle Code section 4463, subdivision (a), is not three years but two years. However, the court accurately calculated and imposed the correct term (eight months is one-third of two years). Therefore, this error in the oral pronouncement does not require correction.

3 “Where there is a discrepancy between the oral pronouncement of judgment and

the minute order or the abstract of judgment, the oral pronouncement controls.” (People

v. Zackery (2007) 147 Cal.App.4th 380, 385.) We have independent authority to correct

the identified clerical errors. (In re Candelario (1970) 3 Cal.3d 702, 705.)

Here, the errors are clear and are clearly inadvertent. The trial court mistakenly

identified count 1 as the receipt of a stolen vehicle count, when it was in fact count 2. It

made the complementary error with regards to the false registration charge, identifying it

as count 2 instead of count 1. Other than the misstatement of which charge corresponded

to which count, the terms imposed for each violation were legally permissible. Therefore,

we conclude the court inadvertently misspoke in its oral pronouncement, and that the

error is clerical and thus capable of correction on appellate review. (See People v.

Anderson (1976) 59 Cal.App.3d 831, 839 [“The distinction between a clerical error and a

judicial error does not depend so much on the person making it as it does on whether it

was the deliberate result of judicial reasoning and determination.”].)

III

DISPOSITION

We modify the July 28, 2020 minute order and abstract of judgment to reflect that

Fotiou was sentenced to one-third the midterm, or eight months, doubled to 16 months

due to the prior strike for count 1, the violation of Vehicle Code section 4463,

subdivision (a), and the upper term of four years, doubled to eight years due to the prior

strike for count 2, the violation of Penal Code section 496d. We direct the court to

4 prepare an amended abstract of judgment in accordance with this opinion and forward a

certified copy to the Department of Corrections and Rehabilitation and correct the

sentencing minute order.

In all other respects, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J. We concur:

CODRINGTON Acting P. J.

FIELDS J.