Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, James R. Brandlin, Judge, Los Angeles County Super. Ct. No. YA010534
John L. Staley, 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, Senior Assistant Attorney General, Steven D. Matthews and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Salvador Melendez appeals from an order denying his petition for writ of coram nobis. He claims the trial court’s order denying his petition/motion to modify his conviction to a violation of Health and Safety Code section 11350 or 11351 should be reversed. Alternatively, he claims the case should be remanded to the trial court to determine the crime to which appellant actually pled. For reasons stated in the opinion, we order the abstract of judgment modified and affirm the order denying the petition for writ of coram nobis.
Appellant acknowledges that, while the documents filed in superior court were entitled petitions for writ of coram nobis, that characterization was not entirely correct. He asserts that whether he met the elements for issuance of a writ of coram nobis is irrelevant because he is only seeking to correct a clerical error. In view of this concession and our disposition, we do not review the propriety of denying the petition for writ of coram nobis.
FACTUAL AND PROCEDURAL SUMMARY
According to the transcript of the preliminary hearing, on February 13, 1992, Los Angeles County Deputy Sheriff Beverly Uthe was on patrol in the vicinity of 111th Street and Prairie Avenue in the County of Los Angeles when she saw appellant, seated in the driver’s seat of a vehicle, talking to a male, who was leaning on the driver’s door. The male handed appellant cash and in return appellant handed the individual a baggie of a white powdery substance, resembling powder cocaine. The deputy and her partner detained appellant and the other individual for a narcotics investigation. Thereafter, the white powdery substance was booked into evidence. For purposes of the preliminary hearing, it was stipulated that the substance was 1.37 grams of a powder containing cocaine.
Appellant filed a writ of coram nobis asserting, in essence, that on March 30, 1992, appellant pled guilty to a violation of Health and Safety Code section 11351, believing that in exchange “the court would reduce the charge to possession for use; or in otherwords [sic] [Health and Saf. Code, §] 11350.” He asserted that he only recently became aware that the abstract of judgment reflects a conviction under Health and Safety Code section 11352, subdivision (a). On January 5, 2007, the superior court denied the petition for failure to state a factual basis for relief, because it was untimely and because it was previously denied on January 30, 2006.
The minute order for January 30, 2006, provides that the petition for writ of coram nobis was denied in that appellant, represented by counsel, “entered a plea of guilty to a lesser crime as part of a case settlement. As such, the presentation of additional facts would not have prevented rendition of the judgment.”
The appellate record has been augmented several times. Included in the augmentation is the document entitled “Guilty Plea in the Superior Court” dated March 30, 1992, and the court’s minute order for that date. The written guilty plea states that appellant, represented by counsel, was pleading guilty to violating Health and Safety Code section 11351.5, carrying a maximum total punishment of five years. The minute order reflects that appellant pled guilty to violating Health and Safety Code section 11351.5, the lesser included/related offense to that charged. The probation report filed with the court on April 13, 1992, also part of the augmented record, states that appellant was charged with selling cocaine in violation of Health and Safety Code section 11352, subdivision (a) but was convicted by plea of violating Health and Safety Code section 11351.5, a lesser included offense.
At all times relevant, Health and Safety Code section 11351.5 provided, “Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale cocaine base which is specified in paragraph (1) of subdivision (f) of Section 11054, shall be punished by imprisonment in the state prison for a period of three, four, or five years.
The transcript of appellant’s guilty plea taken March 30, 1992, could not be prepared in that it is the practice of the Los Angeles Superior Court to destroy court reporters’ notes after ten years.
An abstract of judgment, dated April 13, 1992, reflects that “sentence proceedings [were] suspended. Drug diversion program/work release program granted.” It also reflects that appellant was convicted of violating Health and Safety Code section 11350, subdivision (a), possession of a controlled substance.
On September 21, 1993, appellant was found in violation of probation and was sentenced to the low term of three years in prison. The abstract of judgment for September 23, 1993, reflects that appellant was convicted of selling or transporting a controlled substance in violation of Health and Safety Code section 11352, subdivision (a).
DISCUSSION
“‘It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.’ [Citation.] Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.] [¶] It is, of course, important that courts correct errors and omissions in abstracts of judgment.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
“As a general rule, a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 226.) In the present case, the abstract of judgment for September 21, 1993, does not accurately reflect the charge to which appellant pled and the crime of which he was convicted and it must, therefore, be modified. While appellant argues the documents in the record are confusing and make it difficult to determine the crime to which appellant pled, the document entitled “Guilty Plea in the Superior Court,” which appellant signed and initialed on the date of his plea indicates he was pleading guilty to violating Health and Safety Code section 11351.5. Additionally, the minute order for that date and the probation report for that date also indicate that was the crime to which appellant pled. Based on the circumstances, we conclude these documents which were generated on the date of the plea should prevail.
Appellant additionally contends these documents showing appellant was convicted of violating Health and Safety Code section 11351.5 are also in error because the substance he possessed was cocaine and not rock cocaine. He argues the stipulation entered into by the parties at the preliminary hearing suggests appellant possessed cocaine and not rock cocaine or cocaine base. He asserts he should have been convicted of either a violation of Health and Safety Code section 11350 or 11351. Appellant’s claim is without merit. A plea of guilty admits every element of the charged crime and appellant cannot argue on appeal the lack of sufficient evidence to support that conviction. (People v. Guerrero (1993) 19 Cal.App.4th 401, 407-408.)
DISPOSITION
The order denying the petition for writ of corum nobis is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that appellant was convicted of violating Health and Safety Code section 11351.5, and to forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: WILLHITE, J., MANELLA, J.