Opinion
E052549
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LOPEZ, Defendant and Appellant.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. RIF150817)
OPINION
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired judge of the former Orange Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant David Lopez was charged by information with failing to update his sex offender registration within five working days of his birthday (Pen. Code, § 290.012, subd. (a)(1), count 1), and failing to inform the law enforcement agency where he was last registered that he had moved to a new address, within five working days of his move (§ 290.013, subd. (a), count 2). The information also alleged that he had two prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A))—a 1985 conviction for attempted lewd and lascivious conduct with a minor under 14 years old (§§ 664, 288, subd. (a)) and a 1994 conviction for lewd and lascivious conduct with a minor under 14 years old (§ 288, subd. (a)). Defendant stipulated that he had been "previously convicted of a sex offense that impose[d] on him a lifetime duty to register as a sex offender." A jury found defendant guilty of count 1, but not guilty of count 2. He admitted the two prior strike convictions and moved the trial court to dismiss one of the strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court granted defendant's request to strike the 1985 conviction. The trial court sentenced defendant to the upper term of three years, which was doubled pursuant to the prior strike conviction, for a total term of six years in state prison. The trial court granted defendant 463 days of custody credits (309 days of actual, plus 154 days of conduct).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL BACKGROUND
Defendant registered as a sex offender for the first time in California on September 9, 1986.
At trial, a state correctional officer testified that, on both March 25, 1998, and January 20, 2000, he went over sex offender registration forms with defendant prior to his release from prison. The standard forms informed defendant that he was required to register as a sex offender with the local law enforcement agency where he resided. Defendant was hearing impaired, so the communication and review was done in writing. Defendant read and signed a registration form on both of those dates.
A Riverside Police Department records specialist testified that defendant completed a sex offender registration form in Riverside County on October 16, 2008. Defendant registered his permanent address as "5200 Canyon Crest Drive, Apartment 89 in Riverside," and he gave his date of birth as February 5, 1960. The form notified defendant of his lifetime duty to register as a sex offender. It also stated that defendant was required to annually update his registration information within five working days of his birthday, and within five days of changing his residence address, at the law enforcement agency that had jurisdiction over his residence. Defendant signed the form and never gave any indication that he did not understand what he was signing.
On April 7, 2009, a deputy probation officer went to the 5200 Canyon Crest address. Defendant was not there, so the officer spoke with Margaret Miranda. Defendant and his girlfriend lived with Ms. Miranda at the apartment for approximately five-to-six months. He moved out of the apartment in March 2009.
On April 22, 2009, the deputy probation officer met with defendant at the Riverside County Probation Department Adult Division located in Riverside. Defendant indicated to another deputy probation officer that he lived in Los Angeles at that time. As of that date, defendant was not in compliance with his duty to update his sex offender registration. The records showed that he had not registered since October 16, 2008. The records also showed that he had previously registered within five days of his birthday at least eight times.
ANALYSIS
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 the following potential arguable issues: (1) whether the evidence supported the conclusion that defendant had notice of his duty to renew his registration within five days of his birthday; (2) whether the trial court abused its discretion in sentencing defendant to the upper term of three years, doubled pursuant to the prior strike conviction; (3) whether the trial court abused its discretion in failing to strike defendant's 1994 conviction; (4) whether the trial court correctly instructed the jury as to the intent necessary to find defendant guilty of failing to renew his registration under section 290.012; (5) whether any claimed instructional error was harmless "because the jury could not have rationally found the element unproved by other evidence"; (6) whether defendant's disability provided a defense that would undermine this general intent crime; and (7) whether a six-year sentence for failure to timely renew his sex offender registration under section 290.012 was cruel and unusual punishment. Counsel has also requested this court 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 for potential error.
We have now concluded our independent review of the record and find no arguable issues.
However, we note that the December 17, 2010 minute order and the abstract of judgment indicate that defendant was sentenced to the upper term of six years on count 1. This appears to be a clerical error since the trial court clearly expressed that it sentenced defendant to the upper term of three years, and doubled it pursuant to the prior strike, for a total of six years.
Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) A court "has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]" (In re Candelario (1970) 3 Cal.3d 702, 705.) It is evident that the superior court clerk's errors in indicating in the minute order and the abstract of judgment that defendant was sentenced to the upper term of six years, and in failing to mark box No. 4 on the abstract of judgment indicating that defendant "was sentenced per . . . PC 667(b)-(i) or PC 1170.12 (two strikes)," were inadvertent. Accordingly, we will direct the superior court clerk to correct the minute order and the abstract of judgment.
DISPOSITION
The superior court clerk is directed to correct the December 17, 2010 minute order and the abstract of judgment by indicating that defendant was sentenced to the upper term of three years on count 1, doubled to six years, pursuant to the prior strike conviction, and to mark box No. 4 on the abstract of judgment indicating that defendant was sentenced pursuant to section 667, subdivisions (b)-(i), or section 1170.12. The superior court clerk is further directed to forward a copy of the amended minute order and the abstract of judgment 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:
RICHLI
J.
CODRINGTON
J.