Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202937, David J. Danielsen, Judge.
McDONALD, J.
Nathan Joseph Spencer entered a negotiated guilty plea to selling cocaine (Health & Saf. Code, § 11352, subd. (a)) and admitted he had a prior serious/violent felony or strike conviction (Pen. Code, § 667, subds. (b)-(i)). Under the plea bargain, which called for a stipulated six-year prison term, the prosecution agreed to dismiss other drug charges and a second prior strike conviction allegation. The trial court sentenced Spencer to six years in prison in accordance with the plea bargain.
Further statutory references are to the Penal Code.
Spencer did not obtain a certificate of probable cause.
FACTS
On November 16, 2006, a San Diego police detective observed Spencer walk up to a man and ask for a "dub," street jargon for $20 worth of cocaine base. Spencer was directed to go around the corner, where, he was told, he would find a seller. The undercover detective told Spencer that he, too, wanted to buy a "dub." Spencer suggested they combine their money to purchase a larger amount. The detective gave Spencer four prerecorded $5 bills.
Spencer and the detective walked to the corner where a woman was standing next to a parked car. Spencer told her that he was "looking" for "it," and the woman gave him a small piece of plastic containing what appeared to be cocaine base. Spencer and the woman haggled over how much it was worth and settled on $8.
Spencer approached another man and said he was looking for a "dub." The detective saw the man hand a larger piece of what appeared to be cocaine base to Spencer, who in turn handed the man some money.
As Spencer and the detective walked away, Spencer asked a woman if she had a "horn," street jargon for a cocaine base pipe. The woman said she would let Spencer use her pipe if he gave her some cocaine base.
When the detective asked Spencer for his $20 worth of cocaine base, Spencer gave him an amount the detective thought was insufficient. After concluding Spencer was not going to give him any more, the detective signaled other officers to arrest Spencer. Tests showed the substance Spencer gave the detective contained 0.05 grams of cocaine base. When Spencer was arrested, he had two of the premarked $5 bills the detective had given him.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel has not referred us to any possible, but not arguable, issues pursuant to Anders v. California (1967) 386 U.S. 738.
We granted Spencer permission to file a brief on his own behalf. He has responded.
Spencer claims his sentence should be reversed because the abstract of judgment from his 1991 conviction for assault with a deadly weapon was fraudulently changed. In superior court case No. CR122807, Spencer pleaded guilty to one count of assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted he had a prior serious felony conviction (§ 667, subd. (a)), which carries a five-year enhancement. The original abstract of judgment, dated October 16, 1991, incorrectly indicated that Spencer received a five-year enhancement under section 667.5. Spencer has attached two copies of the original abstract of judgment with his supplemental briefing—one without his fingerprint and one with his fingerprint. Spencer also has attached a copy of the amended abstract of judgment dated November 18, 1996, which showed he received a five-year enhancement under section 667, subd. (a)(1).
Initially, we note that in the case before us the charging document did not allege that Spencer had a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and Spencer was not given a five-year enhancement under section 667, subdivision (a)(1) or any other statutory provision. Therefore, Spencer's contentions about improper changes to the abstract of judgment in the earlier case appear to be irrelevant to this appeal. Nonetheless, we will consider the substantive merits of Spencer's claims.
As to his first claim, Spencer has not demonstrated fraud, but rather only that the original abstract of judgment was amended in 1996 to correctly reference section 667, subdivision (a)(1) rather than section 667.5, which deals with prior prison terms and does not carry a five-year enhancement. The error in the original abstract of judgment was clearly a clerical error, which was properly corrected.
"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.) Entering oral judgment into the abstract of judgment is a clerical function and does not control, add, or modify, but rather summarizes the court's judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Mistakes in the abstract of judgment are considered clerical errors. (Id. at p. 186.) " '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.' " (Id. at p. 185.) If an abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to reflect the true facts. (Ibid.)
Regarding the two copies of the original abstract of judgment—one without Spencer's fingerprint and one with the fingerprint—it appears the former one was the copy for the superior court's file and the latter one was the copy for the jail, where Spencer was fingerprinted.
Spencer also complains that neither he nor counsel was present when the abstract of judgment was changed, an infringement of his constitutional rights. Spencer's claim that he was deprived of the constitutional right to be present at the proceeding is without merit. A criminal defendant is constitutionally entitled to be present at any stage of the proceedings "critical to its outcome if his presence would contribute to the fairness of the procedure" (Kentucky v. Stincer (1987) 482 U.S. 730, 745), or if the defendant's presence " 'has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.' " (United States v. Gagnon (1985) 470 U.S. 522, 526; see also People v. Waidla (2000) 22 Cal.4th 690, 742.) On the other hand, a defendant need not be present " 'when [his or her] presence would be useless, or the benefit but a shadow.' " (People v. Santos (2007) 147 Cal.App.4th 965, 972.)
The correction of the abstract of judgment did not present any factual issues requiring Spencer's presence at the proceedings. Thus, the trial court merely corrected a clerical error in the abstract of judgment to reflect that in the 1991 case, Spencer received a five-year enhancement under section 667, subdivision (a)(1), not section 667.5. Spencer had no constitutional right to be present when the court did so.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Competent counsel has represented Spencer on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.