Filed 6/27/13 P. v. Jessen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. ALVIN AUGUST JESSEN, Defendant and Appellant. H037830 (Santa Cruz County Super. Ct. No. F21097)

A jury convicted defendant Alvin August Jessen of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) The trial court sentenced him to a “split” sentence of five years in coun ty jail and two years of supervised release. (Pen. Code, § 1170, subd. (h).) On appeal, defendant contends (1) he re ceived ineffective assi stance of counsel when his trial counsel failed to object to th e imposition of a $240 restitution fine that exceeded the statutory minimum of $200; (2) the trial court was not authorized to impose a probation revocation restitution fine because he was found ineligible for probation; and (3) the trial court violated his state a nd federal constitutional rights by issuing a supplemental sentencing order in his absence. 1

1 In his opening brief, defendant set forth the ad ditional claim that the trial court erred in refusing to award him an additional 191 days of conduct credit. The pa rties agree that the issue is now moot, since the trial court subs equently awarded the claimed conduct credit to defendant. Accordingly, we find the claim moot.2 We find no merit to defendant's argument th at he received ineffe ctive assistance of counsel, but we agree with defendant and will accept respondent's concession that the court erred by imposing a separate probation revocation restitution fine, although we note that the erroneously imposed fine was a parole revocation restitution fine. We will order that fine stricken and the abstract of judgmen t corrected to remove it. We also conclude that the trial court erred by modifying de fendant’s sentence by ex parte order. Accordingly, that order will be stricken. As so modified, we will affirm the judgment.
FACTS At trial, two Santa Cruz police officers i nvolved in defendant’s arrest testified to the following: They observed defendant and a female in an area known for the use of drugs and alcohol. As the officers approa ched, defendant turned away and dropped a black object into a nearby planter. Defendant then walked quickly through a parking lot and into a nearby bagel shop. One officer se arched the planter a nd found a black pouch with a glass vial, numerous ziplock baggies , and several grams of methamphetamine.
The other officer saw defendant watching them from a window at the bagel shop. The officers entered the shop and arrested defendant. A former Santa Cruz police officer testifie d to the facts of defendant’s prior arrest for possession of methamphetamine for sale in 2002. Defe ndant stipulated to prior convictions for possession of methampheta mine in 2005, 2 007, and 2008.
DISCUSSION
I. Trial Counsel’s Failure to Ob ject to the Restitution Fine Defendant argues that trial counsel provid ed ineffective assistance of counsel by failing to object to a restitution fine of $240 . He contends that under the version of the statute applicable at the time he committed th e offense, the statutory minimum restitution fine was $200. (Former Pen. Code § 12 02.4, Stats. 2011 ch 45 § 1 (SB208).) Respondent contends that, notwithstanding the $2 00 minimum set forth in the statute, the trial court had the discretion to impose a grea ter fine of $240, and that trial counsel’s3 failure to object was, therefore, reasonable. Respondent further argues that even if trial
counsel’s inaction constituted er ror, no prejudice resulted.
A. Standard of Review and Ineffective Assistance of Counsel
“The standard of review of a restitu tion order is abuse of discretion, but ‘a restitution order “resting upon a ‘ “demonstrable error of law” ’ constitutes an abuse of the court’s discretion.” ’ ” ( People v. Tuan Quong Duong (2010) 180 Cal.App.4th 1533, 1537.) “To prevail on a claim of ineffective assist ance of counsel, a defendant must show both that counsel’s performance was defici ent and that the deficient performance prejudiced the defense. [Citations.] Co unsel’s performance was deficient if the representation fell below an objective sta ndard of reasonableness under prevailing professional norms. [Citation.] Prejudice exis ts where there is a reasonable probability that, but for counsel's errors, the result of the proceeding wo uld have been different.” ( People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 68 7-688, 693-694.) “ ‘Tactical errors are generally not deemed reversible; and counsel’s decisionmaking must be evaluated in the context of the available facts. [Cita tion.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, [the appellate cour t] will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ” ( People v. Hart (1999) 20 Cal.4th 546, 623-624.) “It is the defendant's burden on appeal [or in a petition for writ of habeas corpus]
to show that he or she was de nied effective assistance of counsel and is entitled to relief. [Citations.] ‘[T]he burden of proof that the defe ndant must meet in order to establish his [or her] entitlement to relief on an ineffectiv e-assistance claim is preponderance of the evidence.’ [Citation.]” ( In re Hill (2011) 198 Cal.Ap p.4th 1008, 1016.)4 B. Discussion Defendant committed the offens e on July 4, 2011. The stat ute in effect at the time of his offense specified a minimum restitution fi ne of $200. “The restitution fine shall be

set at the discretion of the court and commensurate with the seriousness of the offense,
but shall not be less than two hundred dollars ($200). . . .” (Former Pen. Code § 1202.4, subd. (b)(1), Stats. 2011 ch 45 § 1 (SB208).) (Italics added .) Application of a later
version of the statute would have constituted error. “A re stitution fine qualifies as punishment for purposes of the prohibition against ex post facto laws.” ( People v. Saelee (1995) 35 Cal.App.4th 27, 30.) However, u nder the language of the then-applicable statute, $200 was the minimum amount the trial court could impose. There is no dispute that the court had the discretion to lawfully im pose a greater fine of $240; therefore, there was no ex post facto error because the court imposed a lawfully authorized fine.
Defendant’s claim of ineffective assistan ce of counsel claim also lacks merit. First, with respect to trial counsel’s perfo rmance, defendant does not meet his burden of showing that counsel’s conduct was deficient. Trial counsel may have made a tactical decision not to object to the comparatively minor issue of $40 in restitution, particularly in light of his apparent desire to focus th e court’s attention on the weightier issue of incarceration. Absent a showing that trial c ounsel had no satisfactory explanation for his conduct, we do not question his performance. ( People v. Hart , supra , 20 Cal.4th at pp. 623-624.) Second, with respect to the element of pr ejudice, defendant has not demonstrated a reasonable probability that an objection from trial counsel would have resulted in a different outcome. Defendant argues that th e court imposed the minimum fine, but in the wrong amount. He acknowledges that the c ourt had the discretion to impose a fine of $240, but argues that nothing in the record shows that th e trial court’s imposition of a greater fine was an exercise of discretion. Defendant is correct that the record does not5 show that the court intended to impose more than the statutory minimum of $200, but the
record also does not show that the court intended to impose only the minimum.
Because defendant bears the burden of showing ineffective assistance of counsel,
and because the record is sile nt on the trial court’s reasons for imposing a restitution fine greater than the minimum, we find no indica tion that an objection from defense counsel
would have resulted in a lower fine. Furtherm ore, we presume the trial court applied the law properly. “It is a basic presumption indu lged in by reviewing courts that the trial court is presumed to have known and applie d the correct statutory and case law in the exercise of its official duties.” ( People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) “[I]t is settled that: ‘A judgment or order of the lower court is presumed correct . All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirma tively shown. This is not only a general principle of appellate practice but an ingredie nt of the constitutional doctrine of reversible error.’ ” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Because defendant has not shown the required el ements of ineffective assistance of counsel, his claim fails.
II. The Trial Court’s Imposition of a Pa role Revocation Restitution Fine
Defendant contends the trial court erred by imposing a probation revocation
restitution fine under Penal Code secti on 1202.44 because he was not placed on probation. Respondent conced es this point. We accept re spondent’s concession and will
order this fine stricken. Preliminarily, defendant is incorre ct that the trial court imposed a probation
revocation restitution fine under Penal Code section 1202.44. Although the minutes of the sentencing hearing and the ab stract of judgment do show such a fine, the trial court at the sentencing hearing orally ordered a parole revocation restitution fine under Penal Code section 1202.45. The abstract of ju dgment conflicts with the court’s oral pronouncement. When there is a conflict be tween the oral pronouncement of judgment6 and the abstract of judgment, the oral pronouncement controls. ( People v. Morelos (2008) 168 Cal.App.4th 758, 768.) Nonetheless, defendant is correct that the fine was unauthorized. Defendant was sentenced to a “split” sentence under Penal Code section 1170, subdivision (h). “[S]uch a defendant is not subject to a parole revocation restitution fine.” ( People v. Cruz (2012) 207 Cal.App.4th 664, 672, fn. 6 .) Accordingly, we will orde r the fine stricken, and we will order correction of the abstract of judgment.
III. The Trial Court’s Finding of Inelig ibility for Alternative Sentencing
Defendant also contends that the tria l court erred by entering a minute order finding him ineligible for altern ative sentencing. He argues that the trial court violated his rights under the federal and state constituti ons by entering the minute order at an ex parte “supplemental sentencing hearing” outsid e of his presence and the presence of his counsel. Respondent argues that defendan t had no constitutional right to be present
because the minute order did not involve a discretionary or substantive sentencing decision. Respondent further ar gues that defendant failed to show prejudice, and that any
error was harmless.
The trial court sentenced defendant on January 10, 2012. The minute order and abstract of judgment, issued the same day, set forth the terms of the sentence and judgment. The minute order shows that de fendant was remanded to the custody of the sheriff at the conclusion of the sentencing h earing. The next day, on January 11, 2012, the court issued a minute order captioned “Ex Parte Actions” specifying that “Per order of Judge Ariadne J. Symons, Court does not authorize altern ative methods of incarceration regarding sentence imposed on 1/10 /12.” Neither defendant nor his counsel were present when the court i ssued this ex parte order. Defendant has the right to be present at se ntencing. “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the7 trier of fact, and at the time of the impositi on of sentence.” (Pen. Code, § 977, subd. (b)(1).) “With certain exceptions [. . .] [citations] judgment and sentence in felony cases may be imposed only in the presence of the accused.” ( People v. Zackery (2007) 147 Cal.App.4th 380, 386-387, quoting In re Levi (1952) 39 Cal.2d 41, 45.) Even where a defendant requests that judgment be pronounc ed in his absence, th e defendant must be represented by counsel when judgment is pr onounced. (Pen. Code, § 1193, subd. (a).) Respondent, citing People v. Hines (1997) 15 Cal.4th 997, 1038-1039, argues that defendant does not have a constitutional right to be present “at every hearing held in the course of a trial.” She also argues that courts apply harmless-error analysis when a
defendant has been involuntar ily absent from a criminal tr ial. She relies on case law concerning the personal absence of the defendant, where defendant is otherwise represented by counsel, but cites no case concerni ng a sentencing order issued ex parte, in
the absence of both defenda nt and defense counsel. Here, the trial court imposed a condition of defendant’s sentence not only in the absence of defendant personally, but also in the absence of his counsel. Defendant and his counsel were entitled to be pr esent for such an order. (See People v. Arbee (1983) 143 Cal.App.3d 351, 356 [court erred in modi fying abstract of judgment to increase sentence in defendant’s absence].) While courts have the inherent power to correct clerical erro rs, the order issued
here was not a clerical correction. “The di stinction between clerical error and judicial
error is ‘whether the error was made in rendering the j udgment, or in recording the judgment rendered.’ [Citation].” ( In re Candelario (1970) 3 Cal.3d 702, 705 [finding
error in trial court’s amendment to an abst ract of judgment].) “An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error wa s not the result of the exercise of judicial discretion.” ( Ibid. ) Here, the court’s minute order was no t the result of a failure to record8 the terms of the judgment impos ed during the sentencing hearing. The transcript of the sentencing hearing shows that the court never ordered defendant inelig ible for alternative incarceration. Nor does the record clearly dem onstrate that the error was not the result of the exercise of judicial discretion. Furtherm ore, ineligibility for a lternative incarceration
constitutes a material alteration of defendant’ s rights. Therefore, the court's ex parte minute order was judicial error, not the correction of a clerical error. Defendant requests that we order a new hearing to be held on the issue of defendant’s eligibility for alte rnative incarceration. Th e only form of “alternative incarceration” identified by defendant woul d be participation in a work furlough program. However, while a trial court may deny or restrict a defendant’s participation in such programs, it is not empowered to se ntence defendant to work furlough or home detention. ( People v. Superior Court (Peterson) (1992) 12 Cal.App.4th 16, 23.) In any event, defendant’s trial counsel declined to ra ise the issue at his sentencing hearing. We deny defendant’s request for a new hearing.
DISPOSITION The parole revocation restitution fine of $24 0 shall be stricken and the abstract of judgment shall be corrected to exclude this fine. Furtherm ore, the court’s ex parte9 minute order dated January 11, 2012, shall be stricken. As so modified, the judgment is
affirmed.

_ ____________ ____________ MÁRQUEZ, J.

I CONCUR:

_____________ ____________ RUSHING, P.J.Grover, J., Concurring I respectfully concur in the judgment. With respect to the trial court’s imposition of a $240 restitution fine, I believe defendant has shown a reasonabl e probability that an objection from counsel would ha ve resulted in the imposition of the minimum statutory fine of $200 in effect as of the date of th e offense. The minimum fine under Penal Code
section 1202.4 was increased to $240 effective January 1, 2012 (Stats. 2011, ch. 358 § 1 (AB 898)), ten days before defendant was sent enced. The record re veals absolutely no deliberation about imposing a restitution fine in an amount other than the statutory minimum. Although I ag ree with the majority that the tr ial court had discretion to impose an amount greater than the $200 minimum under the previous vers ion of the statute (Stats. 2011 ch. 45 § 1 (SB 208)), nothing in this record convin ces me that the trial court actually intended to do so. The foregoing notwithstandi ng, it is not clear that defendant has fully met his burden under both prongs of Strickland v. Washington (1984) 466 U.S. 668 cited by the majority. As defendant has no t sufficiently eliminated a tac tical or other explanation for trial counsel’s failure to question the amount of the restitution fine, I concur with the majority that reversal of the judgment due to ineffective assistance of counsel is not
warranted.

___________________ ___________________ Grover, J.