Filed 6/1/21; certified for publication 6/22/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C091339
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FER-
2018-0003013)
v.
YAMIN AMAHLI BONGANI EL,
Defendant and Appellant.
Defendant Yamin Amahli Bongani El appeals the sentence imposed after a jury
found him guilty of misdemeanor driving on a suspended license (Veh. Code, § 14601.1,
subd. (a)). He contends the trial court: (1) failed to exercise its discretion in sentencing
him to the maximum term in jail, as it believed such a term was mandatory when he
declined probation; and (2) failed to articulate the fines and fees imposed. The People
properly concede. We shall vacate the sentence, remand for resentencing, and otherwise
affirm the judgment.
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BACKGROUND
The substantive facts underlying defendant’s conviction are not relevant to the
issues on appeal and are therefore not recounted here.
The trial court indicated it intended to sentence defendant to three years’ informal
probation, with credit for nine days served. Defense counsel indicated defendant would
not consent to a grant of probation. In response, the trial court stated, “So then he has to
have the six months is the max. You have to have six months in jail if he’s not going to
consent to probation.”
The trial court then indicated it would reduce the grant of informal probation to
one year and continued, “[t]his is not negotiable at this point, this is sentencing. So he
can either take no fine, because he’s got credit and one year informal probation with obey
all laws, don’t commit a same or similar offense. Or if he wants to reject probation, then
six months in jail . . . .” After consulting with defendant, counsel again stated defendant
would not consent to probation. Defense counsel also asked the court to exercise its
discretion to impose a sentence of less than six months. The People indicated they
understood that if defendant did not accept probation, the trial court was required to
sentence him to the maximum term. The trial court agreed with the People’s statement of
the law. As to fines and fees, the trial court’s only statement prior to sentencing was it
had looked at “$125 a day, he has 9 days, he would have done 11, 25 on the fine and the
range is between 829 to 1,409.”
The trial court then imposed sentence. “So what I’m going to do, because he’s
rejecting probation and I would have given him one year probation and some conditions,
I won’t impose any conditions and I’ll just order him to serve six months in county jail
and he can have credit for the nine days against the sentence, I’ll do that, and I’ll suspend
the fine.” Pursuant to defense counsel’s request, the sentence was stayed for 180 days,
pending appeal. The minute order reflects imposition of a $1,409 fine, suspended; a $150
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restitution fine plus a $15 surcharge; a $150 probation revocation fine, suspended unless
probation is revoked; a $4 fee; a $30 conviction assessment; and $40 security fee.
DISCUSSION
I
Imposition of Maximum Term
Defendant contends the trial court abused its discretion in sentencing him to the
maximum term, in that it failed to exercise its discretion mistakenly believing that six
months in county jail was the mandatory term when defendant declined probation. The
People properly concede this claim.
Vehicle Code section 14601.1 provides that upon a first conviction for violating
the section and driving on a suspended license, the person shall be punished “by
imprisonment in the county jail for not more than six months or by a fine of not less than
three hundred dollars ($300) or more than one thousand dollars ($1,000), or by both that
fine and imprisonment.” (Veh. Code, § 14601.1, subd. (b)(1), italics added.) The plain
language of the statute sets a maximum term. It does not require imposition of that term.
A defendant has the right to refuse probation and simply choose to serve the sentence.
(People v. Moran (2016) 1 Cal.5th 398, 403.) Like the People, we cannot find any
authority which requires imposition of a maximum term where a defendant exercises that
right.
“ ‘Failure to exercise a discretion conferred and compelled by law constitutes a
denial of a fair hearing and a deprivation of fundamental procedural rights, and thus
requires reversal. [Citations.]’ [Citation.] Where . . . a sentence choice is based on an
erroneous understanding of the law, the matter must be remanded for an informed
determination. [Citations.]” (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
“Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court,’ and a court that is unaware of its discretionary
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authority cannot exercise its informed discretion. [Citation.]” (People v. Brown (2007)
147 Cal.App.4th 1213, 1228.)
The trial court clearly indicated repeatedly at the sentencing hearing that it
believed it did not have discretion to impose any sentence other than the maximum six-
month term. Since the record shows that the trial court proceeded with sentencing on the
erroneous assumption it lacked discretion, remand is necessary so that the trial court may
have the opportunity to exercise its sentencing discretion at a new sentencing hearing.
(See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; People v.
Myers (1983) 148 Cal.App.3d 699, 704.)
II
Imposition of Fines and Fees
Defendant contends the fines and fees reflected on the minute order were not
ordered by the trial court. The People agree the trial court’s oral pronouncement of
judgment does not include these fines and fees, and the matter must be remanded.
The oral imposition of sentence constitutes the judgment in an action, and the
minutes cannot add anything substantive to the oral pronouncement. (People v. Mitchell
(2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-
389.) Generally, the oral pronouncement controls if there is a discrepancy, and the court
clerk lacks the authority to add fines or fees not imposed by the trial court. (Zackery, at
pp. 385-390.) “The clerk cannot supplement the judgment the court actually pronounced
by adding a provision to the minute order and the abstract of judgment. [Citation.] . . .
[T]he clerk’s minutes must accurately reflect what occurred at the [sentencing] hearing.”
(Id. at pp. 387-388.) If the clerk includes fines in the court’s minutes or the abstract of
judgment that were not part of the oral pronouncement of sentence, those fines must be
stricken from the minutes and the abstract of judgment. (Id. at pp. 387-389.) The trial
court was required to impose a restitution fine under Penal Code section 1202.4, a $30
criminal conviction assessment under Government Code section 70373, and a $40 court
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operations assessment under Penal Code section 1465.8, but did not do so. (People v.
Woods (2010) 191 Cal.App.4th 269, 272.) Accordingly, we will remand the matter to the
trial court to delineate any fines and fees imposed, and their statutory bases. (People v.
High (2004) 119 Cal.App.4th 1192, 1200.)
DISPOSITION
Defendant’s sentence is vacated and the matter is remanded for resentencing
consistent with this opinion. Upon resentencing, the trial court shall prepare an amended
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
/s/
RAYE, P. J.
We concur:
/s/
HOCH, J.
/s/
KRAUSE, J.
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Filed 6/22/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C091339
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FER-
2018-0003013)
v.
YAMIN AMAHLI BONGANI EL, ORDER CERTIFYING
OPINION FOR
Defendant and Appellant. PUBLICATION
APPEAL from a judgment of the Superior Court of San Joaquin County, Linda L.
Lofthus, Judge. Remanded for resentencing and otherwise affirmed.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Michael P.
Farrell, Assistant Attorneys General, Michael A. Canzoneri and Clifford E. Zall, Deputy
Attorneys General, for Plaintiff and Respondent.
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THE COURT:
The opinion in the above-entitled matter filed June 1, 2021, was not certified for
publication in the Official Reports. For good cause it appears now that the opinion
should be published in the Official Reports and it is so ordered.
BY THE COURT:
/s/
RAYE, P. J.
/s/
HOCH, J.
/s/
KRAUSE, J.
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