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Filed 12/7/ 23 P . v. Green CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE

, Plaintiff and Responden t

,

v.

D E MONE LEE GREEN, SR.

, Defendant and Appellant. A 1 6 7528

( Napa County Super. Ct.

No. 21CR001550 )

Defendant D e mone Lee Green, Sr. appeals a two

- year sentence imposed

by the trial court after Green pleaded no contest to one felony count of

carrying a dirk or dagger and admitted a prior strike

. Green ’s appointed

appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d

436 ( Wende ), identifying no issues and requesting that this court review the

record and determine whether any arguable issue exists on appeal. Having

done so, we affirm

.

FACTUAL AND PROCEDURAL BACKGROUND 1

Around 12:3 0 a.m. on May 31 , 2021, Napa County Deputy Sherriff

Angel Maldonado observed a grey Acura on State Route 29 without a license

1 The factual summary in this case is taken from the related police
report, which ultimately formed the factual basis for Green’s plea.2

plate. When the deputy initiated a traffic stop, he learned that Green, who

had been driving the vehicle, was on parole for assault with a deadly weapon

(a knife). After Green was detained and removed from the vehicle, a search

of his person disclosed a folding knife in the locked/open position concealed in

his rear back pocket. A methamphetamine pipe was also located in the

driver’s side map pocket of the vehicle. Green was arrested.

On September 16, 2021

, the Napa County District Attorney filed a n

information

, charging Green with felony carrying of a dirk or dagger ( Pen

.
Code, 2 § 21310 , count 1 ) and misdemeanor possession of drug paraphernalia

( Health & Saf. Code

, § 11364, count 2 )

. C ount one was enhanced with

allegations that Green previously had been convicted of a serious or violent

felony within the meaning of section 667, subdivisions (b) through (i) ( e.g.,

§ 245, subd. (a)(1), 12022.7). Green (who was on supervised release) waived

his right to a speedy t rial, and several continuances were granted so that

defense counsel could explore the possibility of drug court, the impact of new

legislation, and Green’s history of childhood trauma and mental illness for

use in a possible diversion motion or for sentencing mitigation.

On October 31, 2022, defense counsel filed a pleading entitled

“ Biographical and Mitigating Information Relevant to Settlement

Discussions. ” On November 2, 2022, the Napa County Di strict Attorney filed

the operative amended information in this case , which, in addition to the

allegations from the original information, added numerous alleged

circumstances in aggravation under California Rules of Court rule 4.421

,
including that Green was armed with a weapon and that his prior

performance on parole was unsatisfactory

. On November 4, 2022

— after

executing a waiver of rights and plea form

— Green pleaded no contest to

2 All undesignated statutory references are to the Penal Code.3

count one and admitted the prior strike allegation. Pursuant to the plea

,

Green’s maximum period of incarceration was set at 32 months. Count two

and the special allegations in aggravation were dismissed with a Harvey 3

waiver. The trial court found Green’s waivers to be knowing and voluntary.

Prior to sentencing, defense counsel submitted a sentencing statement

and Romero 4 motion, requesting that the court exercise its discretion to strike

Green’s prior strike. The prose cution opposed the motion, arguing that Green

should be sentenced to the maximum of 32 months in prison based on the

seriousness of his conviction history

. At the sentencing hearing on J anuary

2 3 , 202 3 , the trial court struck Green’s prior conviction but denied probation,

stating that Green’s prior performance on parole had been “horrendous.”

Thereafter, noting Green would qualify for half time since it struck the strike,

the court sentenced Green to the mid

- term of tw o years. It ordered one day of

custody credi t, imposed a restitution fine of $300 (§ 1202.4)

, and imposed and

stayed a parole revocation fine of $300 (§ 1202.45)

. This timely appeal

followed

.

DISCUSSION

As discuss ed above

, Green appeal s from the trial court’s January 2023

sentencing order made after he pleaded no contest to felony carrying of a dirk

or dagger and admitted a prior strike

. We appointed counsel to represent

Green on appeal

. After examining the record, counsel filed a Wend e brief

raising no issues and requesting that we independently review the record.

( Wende, supra , 25 Cal.3d 436 , 441; see also People v. Kelly (2006) 40 Cal.4th

106, 109

– 110 .) Green was advised by his attorney of the opportunity to file a

supplemental bri ef with this court, but he has not done so.

3 People v. Harvey (1979) 25 Cal.3d 754.

4 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.4

We have examined the entire record and are satisfied that Green ’s

attorney has complied with h is responsibilities and that no arguable issue

exist s

. We do note that the sentencing minute order and the abstract of

judgment indicate that the court imposed a court security fee of $40

(§ 1465.8) and a criminal conviction assessment of $30 (Gov. Code, § 70373)

in this case, as recommend ed by probation. T he reporter’s tran script, in

contrast, discloses that the trial court did not orally impose these two fees.

Generally, when there is a discrepancy between a written record of the

judgment and the oral pronouncement, “the oral pronouncement controls.”

( People v. Gabriel (2 010) 189 Cal.App.4th 1070, 1073.) However, these fees

are mandatory

, and Green failed to object to them

— or indeed to any fees

— at

sentencing on grounds of inability to pay

. He has therefore forfeited the

issue

. ( People v. Lowery (2020) 43 Cal.App.5th 1046, 1054.) Under the

circumstances , we will deem the minute order and abstract of judgment to

prevail over the reporter’s transcript. (See People v. Cleveland (2004) 32

Cal.4th 704, 768 ; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1157

[where trial court fails to impose a mandatory fee or assessment, appellate

court may do so on appeal] .)

In contrast, as stated above, the trial court orally imposed a restitution

fine of $300 (§ 1202.4) and imposed and staye d a parole revocation fine of

$300 (§ 1202.45), and the minute order memorializes this fact. The abstract

of judgment, however, does not reflect these fines. We will therefore issue a

limited remand so that the trial court can correct th is error in the a bstract of

judgment.5 DISPOSITION

The case is remanded to the trial court with instructions to the court

clerk to amend the abstract of judgment to reflect the imposition of the $300

restitution fine (§ 1202.4) and the $300 imposed and stayed parole revocation

fine (§ 1202.45). The clerk shall forward a copy of the amended abstract to

the Department of Corrections and Rehabilitation. T he judgment is

otherwise affirmed.6 GETTY, J. 

WE CONCUR:

M ARGULIES

, ACTING P.J.

B ANKE

, J.

A1675 28 N

 Judge of the Solano County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.