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Filed 3/3/16 P. v. Alfieri CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY W. ALFIERI,

Defendant and Appellant. C078085

(Super. Ct. No. 11F03766)

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ).
Having reviewed the record as required by Wende , we affirm the judgment but order an
amendment of the abstract of judgment, as we shall explain

. We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

FACT UAL AND PROCEDURAL BACKGROUND
In May 2011, defendant Jeffrey W. Alfieri zip tied the victims, laid them on the
ground in a tire shop, pointed a shotgun at them, and demanded and took their money and
identification. A complaint filed charged defendant wit h three counts of robbery. (Pen.2

Code, § 211.) 1 The complaint also alleged as to each count defendant personally used a
firearm. (§ 12022.53, subd. (b).) Defendant pleaded no contest to two counts of robbery
and admitted the personal use enhancements i n exchange for a negotiated sentence of

12 years , to run consecutive to an unrelated f ederal term . The third count was dismissed

with a Harvey 2 waiver. 3
The trial court sentenced defendant to an aggregate state prison term of 12 years
(two years, the low term, on count 1, plus ten years for the firearm enhancement), and the
same term on count two to run concurrent. The court awarded defendant 96 days of presentence custody credit. The court imposed a $240 restitution fine (§ 1202.4,

subd. (b)), a $240 suspended parole revocation restitution fine (§ 1202.45), and a $40
court security fee (§ 1465.8). The court expressly waived all other fines and fees. Lastly,

the court ordered victim restitution as to count 1 and count 2 to be determined.
Defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5) 4

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

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

3 In a separate case, not appealed, defendant also pleaded no contest to misdemeanor driving under the influence of alcohol. (Veh. Code, § 23152, subd. (b)).

4 Any right to appeal from a no contest plea is governed by section 1237 .5. ( People v. McEwan (2007) 147 Cal.App.4th 173, 177.) That section precludes an appeal unless: (1) the defendant has filed a written statement “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceeding s ” ; and (2) the trial court has issued a certificate of probable cause. (§ 1237.5; McEwan, at p. 177.) There are two instances when an appeal is appropriate after a no contest plea: when a defendant raises issues (1) concerning search and seizure, or (2) focusing on proceedings after the plea concerning the degree of the crime or penalty imposed. ( McEwan, at p. 177, citing People v. Shelton (2006) 37 Cal.4th 759, 766 ; see also Cal. Rules of Court, rule 8.304(b).)3 WENDE REVIEW We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. ( Wende, supra , 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 d ays elapsed, and we

received no communication from defendant. 5 Having undertaken an examination of the
entire record, we find no arguable error that would result in a disposition more favorable

to defendant.
We must remand the matter to the trial court, however, for correction of the abstract of judgment. The abstract states that a $30 criminal conviction assessment (Gov.
Code, § 70373) was ordered, despite the court’s oral statement that it waived all fines and
fees other than those it specifically orde red at sentencing. “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.]” ( People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The abstra ct of
judgment may not add to or modify the judgment. ( Id. at p. 389.) This rule applies even
to mandatory fines and fees, such as the criminal conviction assessment under
Government Code section 70373. ( Ibid .) Because the trial court stated that it wa s waiving all fines and fees other than those it expressly imposed, the abstract of judgment
could not properly add any fines or fees to the judgment.

5 Counsel’s Wende brief was filed on Sep tember 23 , 2015. On December 10, 2015, defendant filed a motion to file a late supplemental brief, indicating he had not received counsel’s letter explaining the Wende brief until “late Oct[ober].” Because defendant did not obtain a certificate of probable cause the issues cognizable on appeal are limited to those occurring after the plea concerning the sentence imposed. Defendant was sentenced in accordance with the negotiated plea. Accordingly, we denied this motion.4 DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with
directions to prep are an amended abstract of judgment that omits the $30 criminal
conviction assessment under Government Code section 70373, and to forward a certified
copy of the amended abstract of judgment to the Department of Corrections and

Rehabilitation.

MURRAY , J.

We concur:

NICHOLSON , Acting P. J.

MAURO , J.