No. F072085.

THE PEOPLE, Plaintiff and Respondent, v. RAFAEL GONZALEZ, Defendant and Appellant.

Court of Appeals of California, Fifth District.

Attorney(s) appearing for the Case

Kendall D. Wasley , under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Appellant Rafael Gonzalez is incarcerated in Wasco State Prison and was convicted of possessing heroin in prison, a violation of Penal Code section 4573.6.1 Gonzalez appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.


In 2007, Gonzalez was convicted of first degree murder; several enhancements were found true. A sentence of 51 years 8 months to life was imposed. Gonzalez was incarcerated at Wasco State Prison on December 30, 2012.

Around 5:00 p.m. on December 30, 2012, a correctional officer was conducting a standing inmate count in the prison. The officer saw Gonzalez through the glass window of the door to cell 237. Gonzalez was dressed only in boxer shorts and standing up holding on to the rail of the top bunk. The officer asked Gonzalez if he was "okay" and Gonzalez turned toward the officer and responded affirmatively. Gonzalez then stated he was "going to go back to sleep" and sat down on the lower bunk, although he was assigned the upper bunk.

About 45 minutes later, the officer returned to cell 237 and found Gonzalez still sleeping. Based upon an order from the sergeant, Gonzalez was taken to the prison medical facility. At the prison medical facility, the licensed vocational nurse saw fresh puncture wounds on Gonzalez's arms and hands.

After Gonzalez was out of the cell, the officer searched the cell and found a prison-made syringe and three bindles of heroin. The three bindles were found under a blanket on the lower bunk where Gonzalez had been sitting and sleeping. One of the bindles was open; the other two were not.

On April 4, 2014, the Kern County District Attorney filed an information charging Gonzalez with a violation of section 4573.6, possession of heroin in a state prison. Prior strike conviction and prior prison term enhancements also were alleged.

The People filed a motion in limine seeking in part to allow the officer to testify that Gonzalez appeared to be under the influence of a controlled substance during the inmate count and testimony from several officers that Gonzalez previously was found in possession of prison-made syringes. The defense filed a motion in limine seeking to admit evidence of third party culpability and to preclude reference to Gonzalez as a "lifer." The trial court granted Gonzalez's motion, but denied the People's motion as to testimony Gonzalez was under the influence. Regarding the People's request to admit evidence of prior possession of prison-made syringes, the parties reached a stipulation in lieu of testimony.

At trial, the parties stipulated that Gonzalez knew the substance in the bindles was a controlled substance and the syringe was intended to be used for injecting or consuming a controlled substance.

On July 30, 2014, the jury returned a verdict of guilty on the charge of violating section 4573.6. That same day, the trial court found the prior strike conviction true and the prior prison term enhancement was dismissed when the People elected not to proceed.

Prior to sentencing, the defense filed a motion to dismiss the prior strike enhancement in the interests of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The defense also filed a motion for a new trial. The People filed written opposition to both motions. On July 22, 2015, the trial court denied both defense motions.

At the sentencing hearing, the trial court imposed the upper term of eight years for the section 4573.6 conviction, to be served consecutive to the term Gonzalez currently was serving on the murder conviction. Various mandatory fines and fees were imposed. The abstract of judgment filed July 27, 2015, accurately sets forth the term of imprisonment, but fails in paragraph 5 to specify the fines and fees imposed at sentencing.

Gonzalez filed a notice of appeal on July 24, 2015.


Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on June 13, 2016. On Jun 14, 2016, this court issued its letter to Gonzalez inviting supplemental briefing. No supplemental brief was filed.

When there is a discrepancy between the trial court's oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls; we presume any inconsistency is the result of clerical error and rely upon the oral pronouncement contained in the reporter's transcript. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.)

At sentencing, the trial court imposed a $30 fee pursuant to Government Code section 70373; a $40 fee pursuant to Penal Code section 1465.8; a $240 restitution fine pursuant to Penal Code section 1202.4, subdivision (b); and a $240 fine pursuant to Penal Code section 1202.45, suspended, subject to parole or postrelease supervision proceedings. We will direct the superior court to prepare a corrected abstract of judgment.

After an independent review of the record, other than clerical error in the preparation of the abstract of judgment, we find that no reasonably arguable factual or legal issues exist.


The judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment that reflects the fines and fees imposed at the July 22, 2015, sentencing hearing pursuant to Government Code section 70303, and sections 1202.4, subdivision (b), 1202.45, and 1465.8 of the Penal Code and to disseminate the corrected abstract to the appropriate authorities.


* Before Kane, Acting P.J., Peña, J. and Smith, J.
1. References to code sections are to the Penal Code unless otherwise specified.


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