Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA325543 John S. Fisher, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
After a contested probation violation hearing, the trial court found Charles Alexander (defendant) in violation of probation. The court terminated probation and executed the previously suspended sentence of 12 years in prison. Defendant appeals on the grounds that: (1) the trial court abused its discretion in revoking probation and executing the 12-year sentence, and (2) the abstract of judgment must be corrected to conform to the reporter’s transcript.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed on August 8, 2007, in case No. BA325543, charged defendant with one count of sale or transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). The information alleged defendant had suffered six prison priors (Pen. Code, § 667.5, subd. (b)) and a 2003 strike conviction (Pen. Code, §§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)). The information also alleged defendant had suffered three prior violations of Health and Safety Code section 11352 within the meaning of Health and Safety Code section 11370.2, subdivision (a), which requires imposition of a full, consecutive three-year term for each prior drug-related conviction.
At a proceeding on August 8, 2007, the judge, Judge Espinoza stated that defense counsel had informed the court that defendant wanted to enter Volunteers of America, and defendant’s parole officer had approved this measure. The court observed that individuals who entered drug programs usually did not last very long. The court offered defendant 12 years suspended under the condition that he would serve the 12-year sentence if he left the program. The court stated, “You may be the success story I’ve been waiting for, and if you are, that’s going to be wonderful. Okay. But if you’re not, the reason I’m having this very frank discussion with you is, I don’t put people back in programs when they walk out. They understand they get—they get the 12 years, right?” Defendant replied, “Yes, your Honor.”
After being properly admonished, defendant pleaded guilty to the charged offense and admitted the three prior convictions for violating Health and Safety Code section 11352. The trial court imposed the low term of three years for the current offense and nine consecutive years under Health and Safety Code section 11370.2, subdivision (a) for the three prior drug-related convictions. The court suspended execution of sentence and placed defendant on formal probation for a period of three years. Among the terms of probation was a requirement to enter a one-year residential treatment program and remain there until authorized for release by the program director, probation officer, or the court. The defendant was to be conditionally released to a representative of Volunteers of America. The court also ordered defendant not to use or possess narcotics, dangerous or restricted drugs, or associated paraphernalia. Defendant was ordered to stay away from places where buyers, users, or sellers of narcotics congregate and “to obey all laws.”
On November 27, 2007, the district attorney filed a request for revocation of probation in case No. BA325543 because a new case had been filed, case No. BA332636. The formal probation violation hearing was held before another judge, Judge Fisher on February 8, 2008. Officer David Steussie testified that on November 21, 2007, at approximately 9:50 p.m., he and his partner, Officer Ruiz, observed defendant wearing a Los Angeles County jumpsuit and riding a bicycle with no light. The defendant kept driving when the officers yelled at him to stop through the patrol car window, but they eventually were able to stop him and order him off the bicycle. Officer Ruiz wrote defendant a citation for riding without a light. Officer Steussie asked defendant if he was on parole or probation, and defendant replied that he was on both. Officer Steussie asked defendant if he could search him, and defendant said, “Yes.” Officer Steussie found an off-white solid resembling rock cocaine in defendant’s right sock and arrested him. At the hearing, the parties stipulated that the rock consisted of cocaine base.
When asked what he wanted to do with the bicycle, defendant told Officer Steussie to leave it with a friend of defendant’s named Kevin on the corner of Seventh Avenue and Stanford Street. The officers drove defendant and the bicycle to that corner and found Kevin. Defendant said to Kevin, “It’s all your fault you had me looking for your rock.”
Defendant testified that he was riding his mother’s bicycle on the evening in question and was stopped at a traffic light when the police car pulled up beside him. The police car began proceeding in a different direction from appellant when it changed direction and went “flying down the street” toward him. The officers asked defendant to pull over and then told him he was going to get a ticket for riding a bicycle without lights. He gave the officers permission for a patdown search. Officer Steussie performed a patdown and found nothing.
After defendant had signed his citation, Officer Steussie asked him if he was on probation or parole. Upon defendant admitting that he was, Officer Ruiz said that defendant should be searched again. One of the officers first ran a check on defendant and found he was not wanted. The second search of defendant’s person was very slow and the officer found something. Defendant denied he had rock cocaine in his possession, but he submitted to the arrest. He said that the area he was riding in was a known drug area. The officers told defendant he was the little fish, and if he identified the big fish they could let him go. Defendant was skeptical and “left that alone.” He told the officers where to leave the bicycle and they took it there. Defendant denied yelling out anything to his friend. The officers took him to the police station and searched him two more times.
The court stated that it did not believe defendant’s story that he did not have the cocaine, and it found him in violation of probation. The court imposed the suspended sentence of 12 years.
DISCUSSION
I. Execution of Sentence
A. Defendant’s Argument
Defendant contends the court abused its discretion in revoking probation because more fitting options were available. Furthermore, it was never demonstrated to the court that defendant had simply walked away from his drug program.
B. Relevant Authority
Probation is not a matter of right but a privilege and an act of clemency. (People v. Howard (1997) 16 Cal.4th 1081, 1092; In re York (1995) 9 Cal.4th 1133, 1150.) Pursuant to Penal Code section 1203.2, subdivision (a), “a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe... that the person has violated any of the conditions of his [or her] probation....’” (People v. Rodriguez (1990) 51 Cal.3d 437, 440, italics added.) “It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (Id. at p. 443.) “[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal. 395, 400.)
C. No Abuse of Discretion
This is not an extreme case that calls for this court to overturn the trial court’s exercise of discretion. Defendant makes much of Judge Espinoza’s statement that he did not “put people back in programs when they walk out” and complains of the lack of evidence that defendant left his program. The circumstances under which defendant left his program are not an issue, since this was not the basis for revocation of probation in this case. The trial court heard testimony that defendant possessed a rock of cocaine while on probation for the offense of transportation or sale of a controlled substance. The trial court found the officer’s testimony credible and did not believe defendant. The court cited defendant’s long history of drug-related offenses for the record. In addition to possessing cocaine in violation of law, defendant violated the term of his probation that ordered him to stay away from areas where users, buyers, or sellers of narcotics congregate. By his own admission, he was in an area known for narcotics activity. The court is authorized to revoke probation when a probationer has violated any of his conditions of probation or has committed a subsequent offense. (Pen. Code, § 1203.2; Lucido v. Superior Court (1990) 51 Cal.3d 335, 340.) The trial court did not abuse its discretion in executing the previously imposed sentence, to which defendant agreed, under the circumstances of this case.
II. Error in Abstract of Judgment
Defendant points out that the court granted him 120 days of credit as well as the original 43 days he received. The abstract of judgment does not reflect any credit for time spent in custody. This is clearly clerical error. “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’” (In re Candelario (1970) 3 Cal.3d 702, 705.) Appellate courts may order correction of clerical errors in abstracts of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 188), and we accordingly order the required correction in this case.
DISPOSITION
The judgment is affirmed. The superior court is ordered to correct the abstract of judgment to reflect that defendant received 163 days of conduct credits and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur, DOI TODD Acting P. J., ASHMANN-GERST, J.