1 Filed 11/12/14 P. v. Ojeda CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. ARTURO OJEDA, Defendant and Appellant. E058700 (Super.Ct.No . SWF1208112) OPINION

APPEAL from the Superior Court of Rive rside County. John M. Davis, Judge. Affirmed with directions. David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys Ge neral, for Plaintiff and Respondent. Defendant is serving four years in st ate prison after pleading guilty to possessing methamphetamine and a billy club. He ch allenges only the imposition of a restitution2 fine and a parole revocation restitution fine be cause, although the fine s are set forth in the minute order for the sentencing hearing, th e sentencing court did not actually impose them at the hearing. For the reasons disc ussed below, we order the minute order and abstract of judgment corrected to reflect that the sentencing court did not impose any restitution fines.
P ROCEDURAL B ACKGROUND On December 11, 2012, de fendant pled guilty to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) an d possessing a billy club (Pen. Code, § 22210) 1 and admitted a strike prior (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). On March 18, 2013, the trial court h eard and denied defendant’s motion to withdraw his plea. On that date, the court sentenced defendant to two years for the drug charge, doubled to four years for the strike pr ior, plus a concurrent sentence of two years for the billy club charge, doubled to four ye ars for the strike prior. The court awarded defendant 102 days of actual pre-sentence custody credits, plus 102 days of good-time credits (§ 4019). The record transcript indi cates the court did not impose or even mention any fines. However, the minute order for th at date reflects a $960 restitution fine pursuant to section 1202.4, s ubdivision (b) and a $960 parole revocation fine also pursuant to section 1202.45, subdivision (a), which the court “suspended unless parole is revoked.” These fines are also f ound on the abstract of judgment. This appeal followed.

1 All section references are to the Penal Code unless otherwise indicated.3 D ISCUSSION Defendant argues the restitu tion and parole revocation fi nes should be stricken because they were not part of the trial court’s oral pronouncement of judgment. We agree that the trial court did not actu ally impose the fines, even though they are included on the minute order, because the cour t did not do so orally at sentencing in the presence of defendant. “Where th ere is a discrepancy between the oral pronouncement of judgment and the minute orde r or the abstract of judgment, the oral pronouncement controls.” ( People v. Zackery (2007) 147 Cal.App.4th 380, 385 ( Zackery ).) “Although we recognize that a detaile d recitation of all the fees, fines and penalties on the record may be tedious, Calif ornia law does not authorize shortcuts.” ( People v. High (2004) 119 Cal.App.4th 1192, 1200.) “The clerk cannot supplement the judgment the court actually pronounced by a dding a provision to the minute order and the abstract of judgment.” ( Zackery , at pp. 387-388.) However, as the People point out, the tria l court was obligated either to impose both the restitution fine and the parole revocation fine, or st ate on the record its reasons for not imposing the fines. “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine , unless it finds compelling and extraordinary reasons for not doing so an d states those reasons on the record.” (§ 1202.4, subd. (b).) “In every case where a person is convicted of a crime and his or her sentence includes a period of parole, th e court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b)4 of Section 1202.4.” (§ 1202. 45, subd. (a).) Therefore, in addition to the error by the court clerk in supplementing the court’s oral judgment, the sentencing court erred when it neither imposed the fines nor stated on the re cord its reasons for not imposing the fines. The next question, then, is what to do about this. Defendant argues we should order the fines stricken. The People ar gue the matter should be remanded to the sentencing court so it can consider whether to impose the fines and, if not, to state its reasons on the record.
In Zackery , the relevant facts were identical to those of this case—the trial court did not orally impose these two fines or stat e its reasons for not imposing them, although the clerk entered the fines into the minutes. The court of appeal remanded the case to the trial court to perform its duty—to either impos e the fines or state on the record its reasons for not doing so. The People argue this exact remedy would be appropriate in this case. We might be inclined to agree, were it not for the following decision handed down by our Supreme Court on the issue of waiver.
In People v. Tillman (2000) 22 Cal.4th 300 ( Tillman ), our Supreme Court found that the appellant—in that case the People —had waived its right to challenge the “sentencing court’s failure to discharge the duty imposed by the statutes.” In Tillman , the tables were turned, in that the People sought to have th ese same two fines imposed on appeal after the trial court had omitted to eith er impose the fines or state its reasons for not imposing them. In that case, however, th e fines did not appear in the minutes. The Supreme Court found “no material difference” as to whether an appellant had waived the issue, no matter whether the appellant was a defendant challenging the fines imposed or5 the People challenging that the fines were not imposed. “Although the court is required to impose sentence in a lawful manner, c ounsel is charged with understanding, advocating, and clarifying permissible sentenci ng choices at the hearing. Routine defects in the court’s statement of reasons are eas ily prevented and corrected if called to the court’s attention. As in other waiver cas es, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them.” ( Id . at p. 303, citing People v. Scott (1994) 9 Cal.4th 331, 353.) The Supreme Court declared the imposition of th ese two restitution fines together to be a “discretionary sentencing choice,” and so we are bound by this. 2 The People contend that the holding in Tillman means “the trial court’s failure could not be corrected on appeal when there had been no obje ction below.” This may be true. However, we see two separate failures or errors here in the trial court—one subject to waiver and one not. The first error was by the court at sentencing when it failed to comply with sections 1202.4, subdivision (b), and 1202.45, su bdivision (a), which required the court to either impose the fines or state its reasons for not doing so. Under Tillman , this type of error is not correctible on appeal unless the appellant points out the

2 We acknowledge the People ’s argument that section 1202.46, enacted effective January 1, 2000, allows a victim, the Pe ople or the sentencing court to request “correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a findi ng of compelling and extraordinary reasons pursuant to Section 1202.4.” (§ 1202.46 .) However, we agree with the court in People v. Turrin (2009) 176 Cal.App.4t h 1200, at page 1208, footnote 3, that section 1202.46 did not Legislatively overrule Tillman , and that the statute “does not allow correction of a judgment for a restitution fine [on appeal ] where its omission has been forfeited.”6 error to the sentencing court in time for it to correct the erro r. Neither party did so here. 3
The second failure was that of the clerk when he or she inaccurately entered into the minutes a report that the court had imposed the fi nes, when it fact the court had not. This error was then compound ed when the abstract of judgment was prepared to include the fines. This is not the type of error described in Tillman that the defendant could have pointed out at the sentencing h earing in time for the court to have prevented or corrected it. While we cannot pinpoint with accurac y when defendant and/or his counsel became aware of the error, it is not unreasonable to a ssume that this awareness did not take place in time to prevent or correct the error without resorting to the appeal process. For the reasons stated above, we conclude that the trial court’s error in failing to impose the fines or state why it was not imposing them was correctable at the time, and so any challenge to this error is waived. However, defendant has not waived his ability to ask this court, in this appeal , to correct the inaccurate minut es and abstract of judgment. Waiver principals do not apply in this inst ance because defendant had no opportunity to point out the error at the sentencing hearing so that the sentencing court could prevent or correct the error.
D ISPOSITION We direct the superior court clerk to correct the minute order of the sentencing hearing and the abstract of ju dgment to reflect that the se ntencing court did not impose

3 The plea agreement contains a hand-wr itten notation at the bottom of the first page referring to the two restitution fines. However, defendant did not initial this [footnote continued on next page]7 any restitution fines, and to forward an amende d abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS GAUT J. *

We concur:
RAMIREZ P. J.
MILLER J.

[footnote continued from previous page] notation, and there is no indication when this notation was added to the agreement. Thus, we do not consider the notation and the fi nes to be part of the plea agreement.

* Retired Associate Justice of the Cour t of Appeal, Fourth Appellate District, Division Two, assigned by the Chief Justic e pursuant to article VI, section 6 of the California Constitution.