Filed 8/28/24 P. v. Foy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TYRELL FOY,

Defendant and Appellant.

F086323

(Super. Ct. No. F15901580)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. William 

Terrence, Judge.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, 

Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Kelly E. LeBel, 

Deputy Attorney Generals, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Smith, J. and DeSantos, J.
2.

Appellant Tyrell Foy appeals from the judgment of his conviction of several 

sexual offenses. His sole contention on appeal is that the abstract of judgment and 

minute orders contain clerical orders with regard to the financial obligations that were 

imposed on him by the sentencing court. After appellate counsel raised the issue with the 

sentencing court while this appeal was pending, the court found no clerical error was 

made. Appellant maintains the error remains and continues to seek relief from this court. 

Finding no error, we affirm the judgment. 

RELEVANT PROCEDURAL AND FACTUAL BACKGROUND

On January 26, 2023, appellant entered no contest pleas in accordance with a 

negotiated plea agreement to one count of forcible lewd act upon a child (Pen. Code,

1

§ 288, subd. (b)(1); count 2) and three counts of lewd acts upon a child (§ 288, subd. (a); 

counts 1, 7, 8). He further admitted the aggravating factor that the victims were 

particularly vulnerable was true in count 2. In exchange for appellant’s plea, the People 

dismissed the remaining charges. Appellant was to receive a stipulated prison term of 

16 years and waived his right to appeal. 

At sentencing on March 2, 2023, appellant was sentenced in accordance with the 

plea agreement to an aggregate term of 16 years in prison, comprised of the aggravated 

term of 10 years as to count 2 and consecutive terms of one-third the middle term of two 

years as to counts 1, 7, and 8. 

At the sentencing hearing, the court initially imposed a restitution fine of $4,800 

(§ 1202.4) and a corresponding parole revocation fine in the same amount (§ 1202.45). 

The court also imposed a sex offense fine of $300 (§ 290.3); a court operations 

assessment (also referred to as a “court security fee”) of $40 for each conviction, for a 

total of $160 (§ 1465.8, subd. (a)(1)); and a court facilities assessment (also referred to as 

1 All further undesignated statutory references are to the Penal Code.
3.

a “conviction assessment”) of $30 for each conviction, for a total of $120 (Gov. Code, 

§ 70373).

At this point, defense counsel made the following request: 

“Your Honor, the only thing I would like to point out to the Court is that 

[appellant] has been in prison now for over eight years. Approximately 

eight years. And he will be in prison for a number of years further. I don’t 

know how he will be able to meet[] the financial portion of this sentence. I 

would request that the Court waive any restitution and security fees that the 

Court can waive because he’s going to be starting out from—below zero 

when he gets out. And I think it’s going to make—it’s going to make it—it 

will be an opportunity for him to fail on parole. And I would hope we 

could get started at least even when he gets out.” 

The prosecutor declined to comment on defense counsel’s request.

The court responded, “I’m inclined to reduce those fines. I want to reduce that 

$4,800 fine by half, where it will meet in the interest of justice. We will delete all of 

those fines, sir. I’m inclined to reduce them to $2,400.” 

As to the financial obligations imposed in appellant’s case, the minute order and 

abstract of judgment reflected the restitution fine of $2,400, the corresponding parole 

revocation fine of $2,400, the court operations assessment of $160, the conviction 

assessment of $120, and the sex offense fine of $300.

While this appeal was pending, appellate counsel filed a letter pursuant to People 

v. Fares (1993) 16 Cal.App.4th 954 (Fares) and section 1237.2 and subsequently filed an 

“Ex Parte Motion to Correct a Clerical Error on Sentencing Minute Order and to Amend 

the Abstract of Judgment” (unnecessary capitalization omitted). In the motion, as well as 

the Fares letter, appellate counsel asserted the court’s oral pronouncement of judgment 

“delete[d] all fines and fees other than the $2,400 restitution fine ([] § 1202.4).” 

Specifically citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),

2 appellate

2

In Dueñas, Division 7 of the Second District Court of Appeal held due process 

required the court to hold an ability to pay hearing and determine the defendant has the 

ability to pay the court facilities and court operations assessments under section 1465.8 
4.

counsel asserted the court’s comment that it would “ ‘delete all of those fines’ ” indicated 

the court “made a finding that [appellant] didn’t have the ability to pay the court security 

fee ([] § 1465.8), the criminal conviction assessment (Gov[]. Code, § 70373), or the sex 

offense fine ([] § 290.3)” and, accordingly, intended to strike them on that basis. The 

motion also noted “the court did not impose a parole revocation fine.” Appellate counsel 

requested the minute order and abstract of judgment be amended to reflect that the 

aforementioned fines, fees, and assessments were stricken. Attached to the motion was a 

copy of the relevant portion of the reporter’s transcript of the sentencing hearing. 

The trial court conducted a hearing on the matter on February 2, 2024. Appellant’s 

trial counsel appeared on behalf of appellant and stated the “motion is correct factually” 

in that “the Court had ... agreed to do what is requested here” and requested the abstract 

of judgment be amended as stated in the motion. The district attorney stated the People 

had no objection to the “correction.” 

In ruling, the court stated: “This Court does not find that this was a clerical error 

as suggested by the attorney that filed these Points and Authorities in this case.” The 

court noted it reviewed the transcript and recalled the case. The court went on to say its 

intention at sentencing was to reduce the restitution fine from $4,800 to $2,400. It stated 

the assertion that the court’s action included a finding that appellant did not have the 

ability to pay the “court security fee” was “frankly a mischaracterization of the 

sentencing transcript.” The court underscored it made no finding regarding ability to pay; 

rather it explained, “The Court did on balance consider the amount of the fine of $4,800, 

given the 16-year sentence. The Court listened to argument as to why that fine should be 

reduced or deleted, and the Court elected to still impose a fine of $2,400.” 

and Government Code section 70373 before imposing them and further that the 

restitution fine under section 1202.4 must be stayed until the court finds the defendant 

has the ability to pay it. (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
5.

In response, defense counsel stated, “Well, Your Honor, I interpreted it a little bit 

differently, but I think the result that you’ve come to is the same that—that I understood. 

Meaning, I thought you reduced it to 2,400 and you eliminated other fines.” The court 

responded, 

“That’s exactly right. And that was the intention of the Court at the time. 

The suggestion that the language that I used of ‘delete all those fines’ was 

in reference to the original $4,800 fine and then I issued the $2,400 fine 

and—the argument here is that I made a finding that the defendant didn’t 

have any ability to pay, which was not the case whatsoever. [¶] So to 

clarify our record today, the Court did delete the $4,800 fine. The Court 

does find it’s in the interest of justice and that the defendant does have the 

ability to pay $2,400 under the circumstances and that fine is going to 

remain.” 

Appellate counsel subsequently filed an appellate brief maintaining the clerical 

error existed and that the initial sentencing transcript demonstrates the sentencing court 

did initially strike all fines, fees, and assessments except for the $2,400 restitution fine 

and should have corrected the minute order and abstract of judgment.

DISCUSSION

Appellant contends the abstract of judgment and minute order’s representation that 

the court imposed the sex offense fine (§ 290.3) and the court operations (§ 1465.8) and 

court facilities (Gov. Code, § 70373) assessments is a clerical error that conflicts with the 

oral pronouncement of judgment and must be corrected by this court. Respondent 

contends no clerical error occurred, as stated by the court at the ex parte hearing. We 

agree with respondent. 

As a general rule, “[w]hen there is a discrepancy between the minute order and the 

oral pronouncement of judgment, the oral pronouncement controls.” (People v. Gabriel

(2010) 189 Cal.App.4th 1070, 1073.) Because entering judgment in the minutes is a 

clerical function, a discrepancy between the judgment as orally pronounced by the court 

and as entered in the clerk’s minutes is presumed to be the result of clerical error. 
6.

(People v. Mesa (1975) 14 Cal.3d 466, 471.) However, the Supreme Court directs us to 

harmonize written and oral pronouncements if possible. (People v. Smith (1983) 

33 Cal.3d 596, 599; see People v. Cleveland (2004) 32 Cal.4th 704, 768 [finding that an 

erroneous statement in the reporter’s transcript purporting to impose a one-year sentence 

enhancement was “of no effect” because the minute order and abstract of judgment 

correctly omitted the enhancement].) 

We find no clerical error, and to the extent the sentencing court made any 

misstatement, we can harmonize the written and oral pronouncements. The thrust of 

appellant’s argument is that at the initial sentencing, the court’s language, particularly the 

statement that it would “delete all of those fines” and reduce “those fines” to $2,400 

meant that the court was not only reducing the $4,800 restitution fine but striking the 

court operations and facilities assessments and sex offense fine.3 At the ex parte hearing, 

however, the court explicitly rejected appellant’s interpretation that the phrase “delete all 

of those fines” referred to the court operations and facilities assessments and sex offense 

fine. Rather, it appears, based on the totality of the court’s comments, its intention was to 

“delete” the $4,800 restitution fine and parole revocation fine (hence the plural “fines”) 

and impose lower fines in the amount of $2,400. It simply remained silent on the court 

operations and facilities assessments and sex offense fine.4

3 Though he does not appear to be advancing the argument here, below, appellant 

suggested that the court had also struck the parole revocation fine (§ 1202.45). If 

appellant were advancing that argument here, we would reject it. When a person is 

convicted of a crime and his or her sentence includes a period of parole, the court is 

required to impose a parole revocation fine in the same amount as the restitution fine. 

(§ 1202.45, subd. (a).)

4 While it could be stated that the court’s comments are imprecise, we note defense 

counsel’s request for lower financial obligation was also imprecise, as he requested the 

court “waive any restitution and security fees that the Court can waive.” No where did 

defense counsel specifically request the court strike the sex offense fine or court facilities 

assessment. Rather, defense counsel used the phrase “restitution and security fees that 

the Court can waive” as a catchall. Thus, the court’s response that it was willing to 
7.

Further clarifying its intention at the ex parte hearing, the court explained it made 

no finding that appellant did not have the ability to pay the “court security fee.” This 

explanation is supported by our review of the original sentencing hearing transcript. The 

court indeed made no express finding regarding the appellant’s ability to pay. We 

conclude, based on its clarifying comments at the ex parte hearing, the court impliedly 

found appellant had the ability to pay the court operations and facilities assessments and 

sex offense fine. In accepting the court’s comment that it did not make an inability to pay 

finding, we acknowledge the court therefore had no basis on which to strike the 

assessments or sex offense fine. Absent a finding of inability to pay, these assessments 

and the sex offense fine are mandatory. (§ 1465.8, subd. (a)(1) [assessment “shall” be 

imposed on every criminal conviction]; Gov. Code, § 70373, subd. (a)(1) [same]; § 290.3, 

subd. (a) [fine “shall” be imposed “unless the court determines that the defendant does 

not have the ability to pay”]; see, e.g., People v. Son (2020) 49 Cal.App.5th 565, 598

[though not codified, some courts have held, including different panels of this court, that 

the court must strike the court operations and facilities assessments if it finds the 

defendant has met his or her burden to show he or she does not have the ability to pay 

them]

5

.) 

reduce the restitution fine without mention to the assessments and sex offense fine was 

not inappropriate given the context of the vague request. 

5 As stated above, appellate counsel cited Dueñas, supra, 30 Cal.App.5th 1157 in 

her Fares letter and ex parte motion and argued trial counsel made his request to reduce 

the fines “in the spirit of” that decision. 

We note by the time appellant was sentenced, many other Courts of Appeal had 

weighed in on the correctness of the Dueñas decision, including this one. (See People v. 

Montes (2021) 59 Cal.App.5th 1107, 1115‒1117 [summarizing the splits of authority and 

this court’s approaches to date].) In addition, the California Supreme Court was (and still 

is) reviewing the issues of whether a court must consider a defendant’s ability to pay 

before imposing or executing fines, fees, and assessments and which party bears the 

burden of proof regarding defendant’s inability to pay. (People v. Kopp (2019 Cal. 
8.

We note the court’s decision to reduce, or, in the court’s parlance, “delete” and 

impose a lower amount for the restitution fine/parole revocation fine “in the interest of 

justice,” absent a finding appellant had the inability to pay, is congruent with the relevant 

statutory law, which gives the court discretion to rely on a number of factors to set the 

amount of the restitution fine, “including, but not limited to, the defendant’s inability to 

pay, the seriousness and gravity of the offense and the circumstances of its commission, 

any economic gain derived by the defendant as a result of the crime, the extent to which 

any other person suffered losses as a result of the crime, and the number of victims 

involved in the crime.” (§ 1202.4, subd. (d).) Further, the court is not required to make 

“[e]xpress findings ... as to the factors bearing on the amount of the fine....” (§ 1202.4, 

subd. (d).) We therefore do not infer from the court’s decision to reduce the restitution 

fine and parole revocation fine any implied inability to pay finding that could be attached 

to the court operations and facilities assessments and sex offender fine. 

Finally, we address the court’s response to defense counsel’s comment at the ex 

parte hearing that “I thought you reduced it to 2,400 and you eliminated other fines.” 

(Italics added.) Appellant suggests the court’s response to this comment of “That’s 

exactly right” further supports his assertion that the court intended to strike the court 

operations assessment, court facilities assessment, and sex offense fine. We disagree. 

While the record certainly could be clearer, it appears from the court’s full response, as 

well as the context of its earlier explanation, that its intention was to “delete” the $4,800 

restitution fine and parole revocation fine only, and it did not make express findings on 

LEXIS 8371); People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, 

S257844.) 

That is to say, the trial court was likely aware of and was not bound by the Dueñas 

decision and could instead choose between conflicting authorities, including those that 

have not followed Dueñas or those that have imposed the burden to prove inability to pay 

on the defendant. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 

456.) 
9.

the court operations assessment, court facilities assessment, or sex offense fine. We find 

it clear that if “That’s exactly right” was intended to mean the court intended to strike the 

court operations assessment, court facilities assessment, and sex offense fine, as appellant 

suggests, the court would have ordered the requested correction to the abstract of 

judgment and minute order, as it had the opportunity to do so. Because it declined to do 

so, and because its other comments lead to what we deem a reasonable harmonization of 

the oral pronouncement of judgment and abstract of judgment, we decline to adopt 

appellant’s interpretation of the court’s comment. 

Based upon the statements made by the court at both the original sentencing 

hearing and the ex parte hearing, as well as the relevant statutory and decisional law on 

the fines and fees in question, we find no clerical error. 

DISPOSITION

The judgment is affirmed.