Filed 2/25/21 P. v. Vargas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL MENDOZA VARGAS,

Defendant and Appellant.

F078774

(Super. Ct. No. VCF316597)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. 

Paden, Judge.

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-
2.

INTRODUCTION

The crimes in this case occurred when defendant Manuel Mendoza Vargas entered 

the bedroom of an acquaintance’s teenaged daughter while he was staying at the home 

overnight and raped her.1 Defendant was convicted by jury of two counts of rape by 

force or duress (Pen. Code, § 261, subd. (a)(2); counts 1 & 3),2two counts of rape by 

threat (§ 261, subd. (a)(6); counts 2 & 4), first degree robbery (§ 211; count 5), criminal 

threats (§ 422; count 6), dissuading a witness from reporting a crime by threat of force or 

violence (§ 136.1, subd. (c)(1); count 7), and dissuading a witness from reporting a crime 

(§ 136.1, subd. (b)(1); count 8).3 Pursuant to section 667.61, subdivisions (d)(4) and 

(e)(2), known as the “One Strike” law, the jury also found true the special allegations that 

defendant committed the rapes during the commission of burglary.

The trial court sentenced defendant to a determinate term of four years and an 

indeterminate term of 50 years to life. On the determinate counts, the court imposed the 

lower term of three years on count 5 for robbery; the middle term of two years on count 6 

for criminal threats, stayed under section 654; one year (one-third of the middle term) on 

count 7 for dissuading a witness by threat of force or violence, consecutive to the robbery 

term; and the middle term of two years on count 8 for dissuading a witness, stayed under 

section 654. The court imposed indeterminate terms of 25 years to life each on counts 1 

1 We take judicial notice of our prior opinion in People v. Vargas (Aug. 29, 2018, 

F073606) [nonpub. opn.] (Vargas I) and the record from that appeal. (Evid. Code, §§ 452, 

subd. (d), 459.) With the exception of defendant’s claim of error under section 654, the facts are 

not relevant to the issues resolved on appeal and, therefore, we do not summarize the trial 

evidence other than as necessary to resolve the claim of error addressed in part II. of the 

Discussion.

2 All further statutory references are to the Penal Code unless otherwise stated.

3 Section 261, subdivision (a)(2), proscribes rape “by means of force, violence, duress, 

menace, or fear of immediate and unlawful bodily injury on the person or another,” and 

section 261, subdivision (a)(6), proscribes rape by “threatening to retaliate in the future against 

the victim or any other person.” We refer to the crimes as rape by force or duress and rape by 

threat, respectively.
3.

through 4, stayed the sentences on counts 2 and 4 for rape by threat under section 654, 

and imposed mandatory consecutive terms on counts 1 and 3 for rape by force or duress. 

(§ 667.6, subds. (a), (d).)

In Vargas I, defendant claimed that the jury’s burglary findings under

section 667.61, subdivisions (d)(4) and (e)(2), were not supported by substantial 

evidence; and that the trial court erred in its instructions to the jury under CALCRIM 

Nos. 3180 (burglary special circumstances) and 3426 (voluntary intoxication). He also 

claimed that his sentences of 25 years to life under section 667.61, subdivision (a), were 

unauthorized because the jury did not make the requisite finding that he intended to 

commit rape by force or threat; the trial court abused its discretion in determining the 

rapes involved the same victim on separate occasions under section 667.6, 

subdivision (d); and his cumulative sentence of 50 years to life constituted cruel and/or 

unusual punishment under the federal and state Constitutions.

The People conceded the trial court’s instruction under CALCRIM No. 3180 was 

erroneous as given, but contended the error was not prejudicial. They otherwise disputed 

defendant’s entitlement to any relief.

As discussed in Vargas I, we concluded there was insufficient evidence supporting 

the jury’s burglary findings under section 667.61, subdivisions (d)(4) and (e)(2). We 

reversed the findings and remanded the matter for resentencing, but otherwise affirmed 

the judgment.

On remand, the trial court resentenced defendant to a total determinate term of 

24 years 4 months as follows: the aggravated terms of 11 years each on counts 1 and 3 

for rape by force or duress, one year four months on count 5 for robbery, and one year on 

count 7 for dissuading a witness by threat of force or violence, to run consecutively. 

Pursuant to section 654, the court imposed and stayed the aggravated terms of eight years 

each on counts 1 and 4 for rape by threat, three years on count 6 for making criminal 

threats, and three years on count 8 for dissuading a witness. The court also imposed a 
4.

restitution fine of $10,000 under section 1202.4, subdivision (b)(1); a parole revocation 

restitution fine of $10,000 under section 1202.45, subdivision (a), suspended; a crime 

prevention fine of $10 under section 1202.5; a sexual assault examination fee of $800 

under section 1203.1h, subdivision (b); a total court operations assessment of $320 under 

section 1465.8; and a total court facilities assessment of $240 under Government Code 

section 70373.

Defendant’s appeal following resentencing is now before us. Defendant claims his 

conviction on count 7 for dissuading a witness by threat of force or violence is not 

supported by substantial evidence. He also claims that the trial court erred when it failed 

to stay his sentence on count 7 under section 654; the trial court violated his right to due 

process and to be free from double jeopardy when it increased the restitution fine under 

section 1202.4 from $300 to $10,000 on remand; and he is entitled to remand for an 

ability-to-pay hearing pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas). Finally, defendant claims that the abstract of judgment should be corrected to 

reflect he was convicted of robbery rather than burglary.

The People concede that the trial court violated defendant’s rights when it 

increased the restitution fine from $300 to $10,000 on remand and that this court should 

order correction of the abstract of judgment, but they otherwise dispute his entitlement to 

relief.

We conclude defendant’s attack on his conviction on count 7 for dissuading a 

witness by threat of force or violence is untimely and we decline to consider it, and we 

reject his challenge to his sentence on count 7 under section 654. We agree with the 

parties that the trial court violated defendant’s constitutional rights when it increased the 

restitution fine from $300 to $10,000 during resentencing and we order a reduction, but 

we conclude that by failing to exercise his statutory right to object to the $10,000 fine, 

defendant forfeited his Dueñas claim in its entirety. (§ 1202.4, subd. (d).) Finally, we 
5.

agree with the parties that the abstract of judgment contains a clerical error and we order 

its correction.

DISCUSSION

I. Substantial Evidence Challenge to Count 7

Defendant claims his conviction on count 7 for dissuading a witness from 

reporting a crime by threat of force or violence is unsupported by substantial evidence. 

(§ 136.1, subd. (c)(1); People v. Zamudio (2008) 43 Cal.4th 327, 357.) The People 

disagree. As this claim is untimely, we do not reach the merits.

Defendant’s challenges to his convictions and sentence were raised in his first 

appeal and resolved in Vargas I. We affirmed the judgment other than reversal of the 

burglary findings under section 667.61 and we remanded the matter for the limited 

purpose of resentencing. Defendant now seeks a second bite at the apple by advancing a 

challenge to one of his convictions on grounds that could have been but were not raised 

in his first appeal. He may not do so.

“California law prohibits a direct attack upon a conviction in a second appeal after 

a limited remand for resentencing or other posttrial procedures ....” (People v. Senior

(1995) 33 Cal.App.4th 531, 535, citing People v. Webb (1986) 186 Cal.App.3d 401, 410; 

accord, People v. Deere (1991) 53 Cal.3d 705, 713; People v. Murphy (2001) 88 

Cal.App.4th 392, 396–397; People v. Rogers (1988) 201 Cal.App.3d 286, 290.) We 

remanded this matter for resentencing given reversal of the penalty allegation findings 

made under the One Strike law, but we otherwise affirmed the judgment. (People v. 

Hargis (2019) 33 Cal.App.5th 199, 204 [“[O]nce the remittitur issues, ‘the trial court is 

revested with jurisdiction of the case, but only to carry out the judgment as ordered by the 

appellate court.’”].) Therefore, only errors relating to resentencing may be raised in this 

appeal and we will not consider a belated attack on a conviction that should have been 

raised in Vargas I. (People v. Deere, supra, at p. 713; see People v. Hargis, supra, at 

p. 207 [limited remand not “a straitjacket” where issue could not have been raised in 
6.

earlier appeal and it “concerned a [fundamental] change in the law that altered the court’s 

authority to adjudicate [the] defendant’s case in criminal (adult) court in the first 

instance”].)

II. Failure to Stay Sentence on Count 7 Under Section 654

Defendant was convicted, in relevant part, on counts 1 and 3 of rape by force or 

duress, in violation of section 261, subdivision (a)(2), and on count 7 of attempting to 

prevent or dissuade a witness or crime victim, by threat of force or violence, from making 

a report, in violation of section 136.1, subdivision (c)(1). Defendant claims the trial court 

erred under section 654 when it failed to stay his sentence on count 7 because the same 

physical act underlies the crimes of rape by force or duress and dissuading a witness by 

threat of force or violence.4 We agree with the People that no error occurred.

A. Legal Standard

Section 654, subdivision (a), provides, “An act or omission that is punishable in 

different ways by different provisions of law shall be punished under the provision that 

provides for the longest potential term of imprisonment, but in no case shall the act or 

omission be punished under more than one provision....” The statute “expressly 

prohibits separate punishment for two crimes based on the same act, but has been 

interpreted to also preclude multiple punishment for two or more crimes occurring within 

the same course of conduct pursuant to a single intent.” (People v. Vargas (2014) 59 

Cal.4th 635, 642; accord, People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).) 

Determining “[w]hether a defendant may be subjected to multiple punishment under 

section 654 requires a two-step inquiry ....” (People v. Corpening (2016) 2 Cal.5th 307, 

4 During resentencing, defense counsel argued that the sentences on counts 5 through 8 

should be stayed under section 654 because defendant acted pursuant to a single objective, which 

was to commit rape. Additionally, a trial “court acts in ‘excess of its jurisdiction’ and imposes 

an ‘unauthorized’ sentence when it erroneously stays or fails to stay execution of a sentence 

under section 654” (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17), and such errors “are 

reviewable ‘regardless of whether an objection or argument was raised in the trial and/or 

reviewing court’” (People v. Smith (2001) 24 Cal.4th 849, 852).
7.

311.) “We first consider if the different crimes were completed by a ‘single physical act.’ 

[Citation.] If so, the defendant may not be punished more than once for that act. Only if 

we conclude that the case involves more than a single act—i.e., a course of conduct—do 

we then consider whether that course of conduct reflects a single ‘“intent and objective”’ 

or multiple intents and objectives.” (Ibid.)

We review the trial court’s express or implied factual findings for substantial 

evidence, and its conclusions of law de novo. (People v. Brents (2012) 53 Cal.4th 599, 

618; People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; People v. Moseley (2008) 164 

Cal.App.4th 1598, 1603.) We “affirm the trial court’s ruling, if it is supported by 

substantial evidence, on any valid ground” (People v. Capistrano (2014) 59 Cal.4th 830, 

886, fn. 14, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56, 

103–104; accord, People v. Brents, supra, at p. 618), and where there is no “explicit 

ruling by the trial court at sentencing, we infer that the court made the finding appropriate 

to the sentence it imposed, i.e., either applying section 654 or not applying it” (People v. 

Mejia (2017) 9 Cal.App.5th 1036, 1045, citing People v. Tarris (2009) 180 Cal.App.4th 

612, 626–627).

B. Analysis

1. Single Physical Act

“Whether a defendant will be found to have committed a single physical act for 

purposes of section 654 depends on whether some action the defendant is charged with 

having taken separately completes the actus reus for each of the relevant criminal 

offenses.” (People v. Corpening, supra, 2 Cal.5th at p. 313.) The relevant inquiry is 

whether “‘a separate and distinct act can be established as the basis of each 

conviction ....’” (People v. Beamon (1973) 8 Cal.3d 625, 637; accord, People v. 

Corpening, supra, at p. 316.)

As set forth in Vargas I, defendant entered the bedroom of the victim and raped 

her twice in her bed. Preceding the first rape, defendant placed his hand over the victim’s 
8.

mouth, told her there was a man or men with her mother, and warned her that if she 

screamed or said anything, her mother would be killed. He then pulled down her shorts. 

The victim attempted to prevent the assault by telling defendant she had to get up soon 

and she was on her period, but he said he did not care and he removed her tampon 

himself after she refused to do so. He then raped her the first time, repositioned her on 

the bed, and raped her a second time. After he heard a noise coming from her mother’s 

room, defendant ceased raping the victim, pulled his pants up, took the victim’s cell 

phone from its charger, threatened to kill her mother if she said anything, and left the 

room.

The actus reus of rape is sexual intercourse (§ 261, subd. (a)), and defendant was 

convicted of rape by force or duress based on his threat to harm the victim’s mother that 

preceded the rapes. The second act of rape ended when defendant heard a noise and 

moved off of the victim. After he pulled up his pants, he took the victim’s cell phone and 

threatened to kill her mother if she said anything, which supplied the threat of force or 

violence underlying the crime of dissuasion charged in count 7. Thus, the crimes of rape 

and dissuasion were not completed by a single physical act and we reject defendant’s 

contrary argument. (People v. Corpening, supra, 2 Cal.5th at p. 311.)

2. Multiple Independent Objectives

Generally, “‘“[w]hether a course of criminal conduct is divisible and therefore 

gives rise to more than one act within the meaning of section 654 depends on the intent 

and objective of the actor. If all of the offenses were incident to one objective, the 

defendant may be punished for any one of such offenses but not for more than one.”’” 

(People v. Capistrano, supra, 59 Cal.4th at p. 885, quoting People v. Rodriguez (2009) 

47 Cal.4th 501, 507.) However, “‘[t]he temporal proximity of the two offenses is 

insufficient by itself to establish that they were incident to a single objective’” (People v. 

Jackson (2016) 1 Cal.5th 269, 354, quoting People v. Capistrano, supra, at p. 887; 

accord, Harrison, supra, 48 Cal.3d at p. 335), and “‘[b]ecause of the many differing 
9.

circumstances wherein criminal conduct involving multiple violations may be deemed to 

arise out of an “act or omission,” there can be no universal construction which directs the 

proper application of section 654 in every instance’” (People v. Hicks (2017) 17 

Cal.App.5th 496, 514, quoting People v. Beamon, supra, 8 Cal.3d at p. 636; accord, 

Harrison, supra, at p. 336). Section 654 “is intended to ensure that [the] defendant is 

punished ‘commensurate with his culpability’” (Harrison, supra, at p. 335), and the 

California Supreme Court has cautioned that “a ‘broad and amorphous’ view of the single 

‘intent’ or ‘objective’ needed to trigger the statute would impermissibly ‘reward the 

defendant who has the greater criminal ambition with a lesser punishment’” (id. at 

pp. 335–336, quoting People v. Perez, supra, 23 Cal.3d at p. 552).

“‘If [the defendant] entertained multiple criminal objectives which were 

independent of and not merely incidental to each other, he may be punished for 

independent violations committed in pursuit of each objective even though the violations 

shared common acts or were parts of an otherwise indivisible course of conduct.’” 

(People v. Porter (1987) 194 Cal.App.3d 34, 38, quoting People v. Beamon, supra, 8 

Cal.3d at p. 639; accord, Harrison, supra, 48 Cal.3d at p. 335; People v. Tom (2018) 22 

Cal.App.5th 250, 260.) This determination requires consideration of “all the 

circumstances and is primarily a question of fact for the trial court, whose finding will be 

upheld on appeal if there is any substantial evidence to support it.” (People v. Porter, 

supra, at p. 38, citing People v. Goodall (1982) 131 Cal.App.3d 129, 148; accord, People 

v. Tom, supra, at p. 260.)

“Furthermore, ‘multiple crimes are not one transaction where the defendant had a 

chance to reflect between offenses and each offense created a new risk of harm.’” 

(People v. Lopez (2011) 198 Cal.App.4th 698, 717, quoting People v. Felix (2001) 92 

Cal.App.4th 905, 915.) “Under section 654, a course of conduct divisible in time, though 

directed to one objective, may give rise to multiple convictions and multiple punishment 

‘where the offenses are temporally separated in such a way as to afford the defendant 
10.

opportunity to reflect and renew his or her intent before committing the next one, thereby 

aggravating the violation of public security or policy already undertaken.’” (People v. 

Lopez, supra, at pp. 717–718, quoting People v. Gaio (2000) 81 Cal.App.4th 919, 935; 

accord, People v. Roles (2020) 44 Cal.App.5th 935, 946; People v. Gaynor (2019) 42 

Cal.App.5th 794, 803–804.)

In this case, as we have discussed, the rapes and the witness dissuasion were

distinct crimes “necessarily accomplished through separate actions” (People v. Jackson, 

supra, 1 Cal.5th at p. 354), and the trial court’s implied finding that the crimes involved 

separate intents and objectives is supported by the record (People v. Capistrano, supra, 

59 Cal.4th at p. 886; People v. Mesa (2012) 54 Cal.4th 191, 199). Here, defendant raped

the victim for his own sexual gratification and then, to avoid the consequences of his 

actions, he dissuaded her by threat from making a report, the latter of which had nothing 

to do with his sexual gratification. This conclusion comports with the goal of ensuring 

punishment commensurate with culpability, as defendant compounded his physical 

violation of the victim by threatening to kill her mother if she said anything, causing the 

victim further trauma separate from and unnecessary to the completed crime of rape. 

(People v. Capistrano, supra, at p. 886.) Accordingly, we find no error under 

section 654.

III. Increased Restitution Fine

The restitution fine imposed during the original sentencing hearing was the 

statutory minimum amount of $300. (§ 1202.4, subd. (b)(1).) In resentencing defendant, 

the trial court followed the probation officer’s recommendation and imposed the statutory 

maximum amount of $10,000. (Ibid.) Defendant claims, and the People concede, that 

the trial court erred when it increased the restitution fine during resentencing.

“When a defendant successfully appeals a criminal conviction, California’s 

constitutional prohibition against double jeopardy precludes the imposition of more 

severe punishment on resentencing” (People v. Hanson (2000) 23 Cal.4th 355, 357), and 
11.

restitution fines “constitute punishment for purposes of double jeopardy” (id. at pp. 360–

361). This rule forestalls “the chilling effect on the right to appeal generated by the risk 

of a more severe punishment that lies at its core” (id. at p. 366), and is compelled not 

only by the prohibition against double jeopardy, but by due process considerations under 

state law (id. at pp. 366–367). Therefore, we accept the People’s concession that it was 

error to increase the restitution fine on remand for resentencing. (Id. at pp. 358, 363; 

accord, People v. Daniels (2009) 208 Cal.App.4th 29, 31–32; cf. People v. Neely (2009) 

176 Cal.App.4th 787, 800 [“A more severe sentence may be imposed following a 

successful appeal if the initial sentence was unlawful or unauthorized.”].) The restitution 

fine and corresponding parole revocation restitution fine are each reduced to $300. 

(§§ 1202.4, subd. (b)(1), 1202.45, subd. (a).)

IV. Dueñas Claim

As previously set forth, during resentencing, the trial court imposed a maximum 

restitution fine of $10,000 under Penal Code section 1202.4, subdivision (b)(1); a parole 

revocation restitution fine of $10,000 under section 1202.45, subdivision (a), suspended; 

a crime prevention fine of $10 under section 1202.5; a sexual assault examination fee of 

$800 under section 1203.1h, subdivision (b); a total court operations assessment of $320

under section 1465.8; and a total court facilities assessment of $240 under Government 

Code section 70373. Defendant challenges the imposition of fines, fees and assessments 

without a determination on his ability to pay, in accordance with the decision in Dueñas, 

which was issued approximately three weeks before the resentencing hearing. The 

People dispute defendant’s entitlement to any relief under Dueñas.

Although we have reduced the restitution fine from the statutory maximum of 

$10,000 to the statutory minimum of $300 due to constitutional error, defendant had a 

statutory right to object to the $10,000 fine when it was imposed, based on inability to 

pay, but he did not do so. (§ 1202.4, subds. (c), (d).) Nor did defendant object to the 

crime prevention fine of $10 or the sexual assault examination fee of $800, both of which 
12.

also include statutory ability-to-pay considerations. (§§ 1202.5, subd. (a), 1203.1h, 

subd. (a).)5 Defendant’s argument that Dueñas was not reasonably foreseeable is 

contradicted by the facts that the decision was issued approximately three weeks before 

the resentencing hearing and that he could have but did not object to the maximum 

restitution fine, crime prevention fine and sexual assault examination fee. Accordingly, 

we conclude defendant forfeited appellate review of his claim that the trial court erred in 

imposing the fines, fees and assessments without determining his ability to pay. (People 

v. Montelongo (2020) 55 Cal.App.5th 1016, 1033–1035; People v. Taylor (2019) 43 

Cal.App.5th 390, 399–400; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; 

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1154; People v. Crittle (2007) 

154 Cal.App.4th 368, 371.) We recognize that the imposition of court operations and 

facilities assessments under Penal Code section 1465.8 and Government Code 

section 70373 is mandatory irrespective of ability to pay, but we agree with the Court of 

5 Section 1202.5, subdivision (a), provides, in relevant part: “In any case in which a 

defendant is convicted of any of the offenses enumerated in Section[s] 211, 215, 459, 470, 484, 

487, subdivision (a) of Section 487a, or Section[s] 488, or 594, the court shall order the 

defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. If 

the court determines that the defendant has the ability to pay all or part of the fine, the court shall 

set the amount to be reimbursed and order the defendant to pay that sum to the county in the 

manner in which the court believes reasonable and compatible with the defendant’s financial 

ability. In making a determination of whether a defendant has the ability to pay, the court shall 

take into account the amount of any other fine imposed upon the defendant and any amount the 

defendant has been ordered to pay in restitution.”

Section 1203.1h, subdivision (a), provides, in relevant part: “In addition to any other 

costs which a court is authorized to require a defendant to pay, upon conviction of any offense 

involving child abuse or neglect, the court may require that the defendant pay to a law 

enforcement agency incurring the cost, the cost of any medical examinations conducted on the 

victim in order to determine the nature or extent of the abuse or neglect. If the court determines 

that the defendant has the ability to pay all or part of the medical examination costs, the court 

may set the amount to be reimbursed and order the defendant to pay that sum to the law 

enforcement agency in the manner in which the court believes reasonable and compatible with 

the defendant’s financial ability. In making a determination of whether a defendant has the 

ability to pay, the court shall take into account the amount of any fine imposed upon the 

defendant and any amount the defendant has been ordered to pay in restitution.”
13.

Appeal in People v. Gutierrez that “[a]s a practical matter, if [defendant] chose not to 

object to a $10,000 restitution fine based on an inability to pay, he surely would not 

complain on similar grounds regarding an additional $[560] in fees.” (People v. 

Gutierrez, supra, at p. 1033; accord, People v. Montelongo, supra, at pp. 1034–1035.)

In People v. Taylor, the Court of Appeal applied the forfeiture doctrine where the 

defendant failed to object to the imposition of the maximum restitution fine, but declined 

to do so with respect to the court operations and facilities fees, reasoning that the 

defendant’s failure to object to the restitution fine despite a statutory right to do so may 

have been based on reasons unrelated to his ability to pay. (People v. Taylor, supra, 43 

Cal.5th at pp. 400–401; accord, People v. Oliver (2020) 54 Cal.App.5th 1084, 1100–

1101.) We are unpersuaded on that point, however, and conclude that defendant forfeited 

his ability-to-pay claim under Dueñas in its entirety by failing to object to the $10,000 

restitution fine.

V. Clerical Error in Abstract of Judgment

Finally, “[a]ny discrepancy between the judgment as orally pronounced and as 

recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of 

clerical error” (People v. Leon (2020) 8 Cal.5th 831, 855, citing People v. Mesa (1975) 

14 Cal.3d 466, 471), and we may order correction on review (People v. Mitchell (2001) 

26 Cal.4th 181, 185, citing In re Candelario (1970) 3 Cal.3d 702, 705). The parties 

agree, and our review confirms, that the abstract of judgment incorrectly reflects that on 

count 5, defendant was convicted of first degree burglary rather than first degree robbery. 

We shall order the correction.

DISPOSITION

The restitution fine imposed under section 1202.4, subdivision (b)(1), and the 

parole revocation restitution fine imposed under section 1202.45, subdivision (a), are 

each reduced from $10,000 to $300. The trial court shall issue and forward to the 

appropriate authorities an amended abstract of judgment reflecting modification of the 
14.

restitution fine and parole revocation restitution fine and reflecting that on count 5, 

defendant was convicted of first degree robbery. Except as modified, the judgment is 

affirmed.

MEEHAN, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

SMITH, J.