Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF09332.
ROBIE, J.
Defendant Robert Eugene Martin was awarded $5,000 on an insurance claim. When he did not receive a check for the amount, his attorney contacted the insurance company which put a stop payment on the check and issued a new one. Defendant received the new check and cashed it. Later, defendant received the original check in the mail and cashed it as well.
Defendant pled guilty to grand theft in exchange for a sentencing lid of two years and the dismissal of several other counts. The court sentenced defendant to state prison for the midterm of two years.
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)
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. (People v. Wende (1979) 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 days elapsed, and we received no communication from defendant.
We note an error. Defendant entered his plea in exchange for dismissal of other counts, driving on a suspended or revoked license, a misdemeanor (count II) and possession of an open container, an infraction (count III). At the entry of plea hearing, the court took the motion to dismiss the remaining counts under submission. At sentencing, the count did not orally rule on the prosecutor’s motion to dismiss the remaining counts although the clerk’s transcript reflects that the court did so. If the clerk’s minutes do not reflect the judgment pronounced by the court, the error is clerical and “the record can be corrected at any time to make it reflect the true facts.” (People v. Hartsell (1973) 34 Cal.App.3d 8, 13; see also People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [the clerk’s minutes of sentencing must accurately reflect oral pronouncement of judgment; “[t]he clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment”].) We will order the judgment modified, dismissing counts II and III.
Our miscellaneous order No. 2010-002 (filed March 16, 2010) deems defendant to have raised the issue (without further briefing) of whether the January 25, 2010, amendments to Penal Code section 4019 apply retroactively to his pending appeal and entitle him to additional presentence custody credits. We conclude the amendments apply to all appeals pending as of January 25, 2010. (In re Estrada (1965) 63 Cal.2d 740, 745 [amendments lessening punishment for crime apply to acts committed before enactment, provided the judgment is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, §§ 4019, subds. (b), (c), 2933.1.) With 3 days of actual custody, defendant is now entitled to 2 days of conduct credit rather than zero. We will order the judgment modified accordingly and direct the trial court to prepare an amended abstract.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified, dismissing counts II and III and providing for 2 days of conduct credit for a total of 5 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment to reflect two conduct days and five days of presentence custody credit and to forward a certified copy of the same to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: HULL, Acting P. J., BUTZ, J.