Opinion
E054959
12-28-2012
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ALLEN LONG, Defendant and Appellant.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FMB900572)
OPINION
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed with directions.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jeffrey Allen Long was charged with four counts of lewd act upon a child. (Pen. Code, § 288, subd. (a), counts 1-4.) Pursuant to a plea agreement, he pled guilty to counts 1 through 3 in exchange for a state prison term of 12 years and the dismissal of the remaining count. The plea agreement also provided that defendant stipulated to having 946 actual days of credits, as of July 21, 2011. The trial court sentenced him to eight years on count 1, plus a consecutive two years on both counts 2 and 3, for a total of 12 years in state prison; it awarded a total of 1,087 days of presentence custody credits. Subsequently, defendant's presentence custody credits were corrected. Pursuant to a stipulation, the court awarded defendant 1,176 credits (1,023 actual plus 153 conduct).
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant argues that the court erred in failing to dismiss count 4, in accordance with the plea agreement. We agree and direct the court to dismiss count 4.
PROCEDURAL BACKGROUND
Defendant was charged with, and admitted that, on or about October 1, 2009 through December 17, 2009, he committed three counts of the crime of lewd acts upon a child. (§ 288, subd. (a).)
ANALYSIS
Defendant's sole contention on appeal is that the trial court erred in failing to dismiss count 4 in accordance with the plea agreement. He argues that, in failing to do so, the court violated the plea agreement. He thus contends that we should order the record to be corrected to dismiss count 4. The People argue that defendant failed to file a timely appeal, and that his appeal is otherwise moot, since the clerk's minutes for the sentencing hearing reflect that count 4 was dismissed. We conclude that the court inadvertently neglected to dismiss count 4.
Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808 (Schultz).) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid.)A court "has inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. [Citations.]" (Id. at p. 807, italics added; see also In re Candelario (1970) 3 Cal.3d 702, 705.)
At the sentencing hearing, the trial court expressly stated its understanding of the terms of the plea agreement to be that defendant would plead guilty to three counts of section 288, subdivision (a), that he would be given 12 years in state prison, and that the "[r]emaining counts and allegations [would] be dismissed." The court proceeded to directly examine defendant regarding the plea form and concluded that he understood the nature of the charges, all consequences and punishments for the offenses, and his constitutional rights. Defendant pled guilty, and the court thereafter sentenced him to a total sentence of 12 years, as agreed upon. The court, however, failed to dismiss count 4 in its oral pronouncement of judgment. Notwithstanding the oral pronouncement of judgment, the minute order states that count 4 was ordered dismissed. There is no reference to count 4 in the abstract of judgment.
We initially note that the People are mistaken in claiming that this appeal is moot simply because the clerk's minutes for the sentencing hearing "already reflect that Count 4 was indeed dismissed." "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.]" (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment." (Id. at pp. 387-388.) Since the court here never actually dismissed count 4, the clerk's notation in the minutes that count 4 was dismissed on the People's motion is inaccurate.
Furthermore, the record shows that the trial court intended to fully execute the terms of the plea agreement, but inadvertently neglected to dismiss count 4 during the oral pronouncement of judgment. Accordingly, we direct the trial court to dismiss count 4. (Schultz, supra, 238 Cal.App.2d at p. 807.) We will also direct the superior court clerk to generate a new minute order reflecting the court's dismissal, and noting that the July 21, 2011 minute order incorrectly stated that the court dismissed count 4 at that time.
DISPOSITION
The trial court is directed to dismiss count 4. The superior court clerk is directed to generate a new minute order reflecting that the July 21, 2011 minute order incorrectly states that the court dismissed count 4 at that time, and that the trial court has now dismissed that count. The clerk is further directed to forward a copy of the new minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: McKINSTER
J.
RICHLI
J.