Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF118648A, Craig Phillips, Judge.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.
PROCEEDINGS
Appellant, Michael Brandon Burge, was charged in an information filed May 9, 2007, with unlawful possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)). On July 18, 2007, the information was amended to include an allegation that Burge committed his offense while released on bail (Pen. Code, § 12022.1). On July 26, 2007, the trial court heard and denied Burge’s suppression motion.
Unless otherwise indicated, all statutory references are to the Penal Code.
On July 27, 2007, Burge entered into a plea agreement in which he admitted possession of methamphetamine and the on-bail enhancement was dismissed. Burge waived his right to treatment pursuant to Proposition 36 and was placed on probation. One term of probation was to serve time in jail concurrent to an unrelated action, case No. BF116208A. Burge executed an advisement of rights, waiver, and plea form for felonies. Counsel stipulated to a factual basis for the plea. The trial court explained the consequences of Burge’s plea. Burge pled no contest to possession of methamphetamine and waived preparation of a probation report.
Burge waived his constitutional rights in the plea form. In open court, Burge admitted reading through the plea form. Burge told the court he did not have questions concerning anything in his form and needed no additional time to talk to his counsel. Burge told the court he understood he was waiving the rights set forth in the form.
The trial court placed Burge on formal probation upon various terms and conditions, including that he spend the first year of probation in jail. On appeal, Burge contends, and the People concede, that the clerk’s minutes fail to indicate that Burge’s incarceration in jail is concurrent to a sentence in case No. BF116208A.
FACTS
On April 4, 2007, at 1:56 a.m., Bakersfield Police Officer Ryan Newman was dispatched to investigate a possible burglary in progress. Officers Tenorio and Morphis were already at the scene when Newman arrived. Tenorio and Morphis were talking to a suspect named Johnston, who was on parole. Burge opened a garage door and asked Newman what the police were doing there. Newman told Burge they were responding to a possible vehicle burglary. Newman asked Burge if Johnston was a visitor.
The facts are derived from the suppression hearing.
Newman next asked Burge if he was on probation or parole. Burge replied he was on probation for weapons. Newman asked Burge if he possessed anything illegal. Burge said he did not. When Newman asked Burge if he could search him, Burge replied affirmatively. Newman found a round, three-inch cylinder that contained what appeared to be methamphetamine.
DISCUSSION
The clerk’s minutes do not have a notation that Burge’s commitment to jail is concurrent to his commitment in case No. BF116208A. The parties concede this is error. In relevant part, section 1213, subdivision (a) provides that a copy of the clerk’s minute order or the abstract of judgment, depending on whether a defendant receives probation or a prison sentence, “shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution.” In a criminal case, the trial court’s oral pronouncement of the sentence constitutes the judgment in the case. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)
The abstract of judgment, or in this case the clerk’s minute order, must reflect the sentence the court has orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The abstract of judgment or minute order is not the trial court’s judgment. It does not control if it is different from the trial court’s oral judgment and cannot add to or modify the judgment it purports to summarize. Courts, including appellate courts, may correct clerical errors at any time. (Id. at p. 185.) Accordingly, we will remand for the trial court to correct the clerk’s minutes.
DISPOSITION
The case is remanded for the clerk’s minute order to be amended to include the trial court’s pronouncement that Burge’s jail commitment in this action is concurrent to his commitment in case No. BF116208A. The amended minute order shall be forwarded to the appropriate authorities. The judgment is affirmed.