People v. Hernandez CA4/2

Opinion

Filed 3/17/21 P. v. Hernandez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074760

v. (Super.Ct.No. BAF1901182)

JUSTIN PAUL HERNANDEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed with directions.

David Zarmi, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

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

White, Deputy Attorneys General, for Plaintiff and Respondent.

1 On December 23, 2019, Justin Paul Hernandez pleaded guilty to possession of

methamphetamine for sale. (Health and Saf. Code, § 11378.) The court sentenced him to

16 months, doubled to 32 months for a prior strike conviction. (Pen. Code, §§ 667,

subds. (b)-(i), 1170.12.) Hernandez timely appealed the judgment.

On appeal, Hernandez argues the minute order of his sentence does not conform

with the trial court’s oral pronouncement, and the case should be remanded to permit the

trial court to correct the error. Specifically, the minute order states the trial court

instructed Hernandez he was prohibited from owning or controlling firearms when it

didn’t actually do so. The People agree there is a discrepancy between the minute order

and the court’s oral pronouncement, but argue the error either does not need to be

corrected or that if it does we can do so on our own without remanding.

“In a criminal case, it is the oral pronouncement of sentence that constitutes the

judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) “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.) “Courts may correct clerical errors at any time, and appellate

courts . . . that have properly assumed jurisdiction of cases,” may order these clerical

errors corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

Because there is no dispute that the minute order does not match the court’s oral

pronouncement, we find remand unnecessary and exercise our independent authority to

order the trial court to correct the minute order to conform with the court’s oral orders.

2 DISPOSITION

We direct the trial court to correct the December 23, 2019 sentencing minute order

by striking the reference to the firearm prohibition. In all other respects, we affirm the

judgment. The trial court shall prepare a corrected minute order and forward a certified

copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J. We concur:

CODRINGTON Acting P. J.

RAPHAEL J.