Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Super. Ct. Nos. Court of San Bernardino County. FWV701241, FWV901337 Mary E. Fuller, Raymond P. Van Stockum, and Paul M. Bryant, Jr., Judges.
Alan Macina, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P.J.
On June 11, 2007, defendant and appellant Alejandro R. Gonzales was charged, in case No. FWV701241, with resisting an executive officer. (Pen. Code, § 69, count 2). The complaint also alleged that defendant had suffered one prior prison conviction. (Pen. Code, § 667.5, subd. (b).) Pursuant to a plea agreement, defendant pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), amended/added count 3), and the court placed him on probation for three years, under certain terms. Approximately two years later, defendant was charged in case No. FWV901337 with committing a lewd act on a child (Pen. Code, § 288, subd. (c)(1), count 1), assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 2), and criminal threats (Pen. Code, § 422, count 3). He pled no contest to count 1, in exchange for the dismissal of the remaining counts, and received three years’ probation. Defendant also admitted that his conduct in case No. FWV901337 constituted a violation of the probation terms in case No. FWV701241. The trial court revoked his probation in case No. FWV701241, and then reinstated him on the original terms and conditions.
Count 1 of the felony complaint charged a codefendant named Ramon Jose Avila, but not defendant.
On February 3, 2010, the probation department filed a petition to revoke defendant’s probation in case No. FWV901337, alleging that he failed to report to probation after he was deported (he was required to report by telephone or mail if removed from the United States), failed to keep probation informed of his residence, and failed to register as a sex offender. Then, on May 27, 2010, the probation department filed a petition to revoke probation in case No. FWV701241, alleging that defendant reentered the United States without proper written authorization, failed to report to probation upon release from custody and thereafter every 14 days, and failed to keep probation informed of his residence. The trial court heard evidence in both matters on June 23, 2010, and found defendant in violation of probation in both cases. It sentenced defendant to two years in state prison in each case and ordered the sentences to run concurrent.
Defendant filed notices of appeal in both cases. Each notice stated that the appeal followed a “contested violation of probation.” On the court’s own motion, we consolidated the appeals for all purposes. As to case No. FWV701241, we direct the trial court to dismiss the prior prison allegation (Pen. Code, § 667.5, subd. (b)) and count 2 (§ 69). As to case No. FWV901337, we direct the trial court to dismiss count 2 (Pen. Code, § 245, subd. (a)(2)) and count 3 (§ 422). In all other respects, we affirm.
FACTUAL BACKGROUND
The following facts were taken from the probation officer’s report:
Case No. FWV701241
Police officers executed a search warrant on an apartment and found defendant in a locked room. They used a tool to break the door open. Upon entering the room, they saw defendant run away from the door, jump on the bed, and jump out of the window. One officer chased him, and eventually took him into custody. Inside the apartment, the officers found a glass methamphetamine pipe, empty baggies, and a clear baggie, which contained what appeared to be methamphetamine. They also found a notebook with names and dollar amounts, which one officer believed to be a “‘pay and owe’” sheet.
Case No. FWV901337
Police officers were investigating a call from a victim who reported that defendant had brandished a gun and threatened to kill him. During the investigation, the police went to defendant’s residence in an attempt to contact him. There, they contacted defendant’s girlfriend, who was 15 years old. She said she lived with defendant and was five months pregnant with his child.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case and a few potential arguable issues, including: 1) whether defendant’s written appeal waiver was valid; 2) whether defendant’s guilty pleas were constitutionally valid; 3) whether the trial court properly advised him of the sentence he would receive under the plea agreement in each case; and 4) whether the court abused its discretion in sentencing him to prison for two years in each case. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record and find no arguable issues.
Although not raised by the parties, we note several apparent clerical errors. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A court “has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. [Citations.]” (In re Candelario (1970) 3 Cal.3d 702, 705.)
Here, in case No. FWV701241, the court neglected to dismiss count 2 and the prior prison allegation. The plea agreement stated that defendant would plead guilty to the added count 3 charge, and that the People would dismiss all other counts and allegations, as well as a misdemeanor case (No. M648360). The court amended the complaint to add count 3, and defendant pled guilty to that charge on June 20, 2007. The court then dismissed the misdemeanor case, pursuant to the agreement, but did not mention count 2 or the prison prior allegation. Neither party mentioned the court’s failure to dismiss count 2 or the prior prison allegation. Notwithstanding the oral pronouncement of judgment, the June 20, 2007 minute order states that the court ordered the prior prison allegation dismissed. It does not mention count 2. The minute order also states that the court ordered count 1 dismissed, on motion of the People, even though the reporter’s transcript does not reflect that the court did so. We note that defendant was not even charged in count 1 of the complaint.
In case No. FWV901337, the court neglected to dismiss counts 2 and 3. The plea agreement stated that defendant would plead guilty to count 1, and that the remaining counts would be dismissed. Defendant pled no contest to count 1 on June 8, 2009, but the court did not dismiss counts 2 and 3. The July 13, 2009 sentencing hearing minute order states that the court ordered counts 2 and 3 dismissed, on motion of the People, even though the reporter’s transcript does not reflect that the court did so.
It is apparent that these errors were inadvertent. Accordingly, in case No. FWV701241, we will direct the trial court to dismiss count 2 and the prior prison allegation, and to generate a new minute order reflecting that the court dismissed count 2. (The June 20, 2007 minute order already states that the court dismissed the prior prison allegation.) We will also direct the superior court clerk to delete the reference to the dismissal of count 1 from the June 20, 2007 minute order. In case No. FWV901337, we will direct the trial court to dismiss counts 2 and 3.
DISPOSITION
As to case No. FWV701241, the trial court is directed to order the dismissal of count 2 (§ 69) and the section 667.5, subdivision (b), allegation. The superior court clerk is directed to generate a new minute order reflecting that the court dismissed count 2. In addition, the superior court clerk is directed to amend the June 20, 2007 minute order to delete the reference to the dismissal of count 1.
As to case No. FWV901337, the trial court is directed to order the dismissal of count 2 (§ 245, subd. (a)(2)) and count 3 (§ 422). In all other respects, the judgments are affirmed.
We concur: McKINSTER J. KING J.