When defendant declined offer of probation, the trial court was not required to impose the maximum term of punishment and had discretion to impose a lesser term. Following defendant’s conviction for misdemeanor driving on a suspended license (Veh. Code, § 14601.1, subd. (a)), the trial court indicated it would place him on three years’ informal probation. When defendant did not consent to probation, the trial court offered to reduce the probationary term to one year, advising defendant that if he did not accept probation the court was required to impose the maximum sentence of six months in jail. Defendant declined the offer, and the court imposed the six-month sentence (but stayed the sentence for 180 days at defense counsel’s request). Defendant appealed. Held: Sentence vacated and remanded for resentencing. 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,” by a fine, or by both a fine and imprisonment. The plain language of the statute sets only 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. Where, as here, the trial court proceeded with sentencing on the erroneous assumption it lacked discretion to impose a lesser sentence, remand is necessary so that the trial court may have the opportunity to exercise its informed sentencing discretion at a new sentencing hearing.
The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. The fines and fees reflected in the minute order were not actually ordered by the trial court. The clerk cannot supplement the judgment the court actually pronounced by adding provisions to the minute order and the abstract of judgment, and the clerk’s minutes must accurately reflect what occurred at the sentencing hearing. Fines included in the minutes or the abstract of judgment that were not part of the oral pronouncement of sentence must be stricken from the minutes and the abstract of judgment. Here, the court was required to impose a restitution fine and certain assessments, which it did not do. On remand, it must determine any fines and fees, and their statutory basis.