Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF113286A, Richard J. Oberholzer, Judge.
Alan Manson, 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 and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J., and Cornell, J.
PROCEEDINGS
Appellant, Moody Woodrow Tanksley, was charged in an information filed July 7, 2006, with possession of a flammable, explosive, or combustible material with intent to set a fire or burn property (Pen. Code, § 453, subd. (a)). The information further alleged that Tanksley had two prior serious felony convictions within the meaning of the three strikes law (§ 667, subds. (c)-(j) & § 1170.12, subds. (a)-(e)). On November 7, 2006, after a jury trial, Tanksley was found guilty. After a bifurcated trial, the trial court found the prior serious felony allegations to be true.
Unless otherwise specified, all further statutory references are to the Penal Code.
On January 31, 2006, criminal proceedings were suspended on the criminal complaint pursuant to section 1368. On February 21, 2006, the court found Tanksley incompetent to stand trial at that time and the court ordered a mental health evaluation. On March 14, 2006, the trial court ordered Tanksley’s commitment to Patton State Hospital for mental health treatment. The court authorized the administration of antipsychotic medication as prescribed by the treating psychiatrist. After reevaluation and another hearing, the trial court found Tanksley competent to stand trial.
On February 28, 2007, the court struck one prior serious felony allegation and sentenced Tanksley to the midterm of two years, doubled to four years pursuant to the three strikes law. Tanksley was granted applicable custody credits and ordered to pay a restitution fine. On appeal, Tanksley contends the clerk’s minute order fails to show that one of his strikes was dismissed. Tanksley also argues the minute order and abstract of judgment fail to reflect that his sentence was two years and was then doubled pursuant to the three strikes law.
Because the only issues on appeal concern clerical matters, we do not review the underlying facts of Tanksley’s conviction.
DISCUSSION
Tanksley contends, and respondent concedes, that the clerk’s minute order from the sentencing hearing on February 28, 2007, fails to indicate that the trial court exercised its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike one of the prior serious felony allegations. The trial court expressly stated on the record that it was exercising its discretion to strike this allegation. The infirmity is a clerical error, not attributable to the exercise of judicial function, which can be corrected at any time including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; also see People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474.)
Tanksley further argues, and respondent concedes, that although the trial court properly made a statement of reasons for striking the prior conviction, the clerk failed to note these in the minute order. The minutes and oral pronouncements of the court are different things. If valid reasons appear in the reporter’s transcript but do not appear in clerk’s minutes, the mandatory statutory requirements of section 1385 have not been met. Such practice could render the trial court’s dismissal invalid under section 1385. (See People v. Superior Court (Flores) 214 Cal.App.3d 127, 135-136.)
The trial court noted Tanksley suffers from a mental illness and he was not actually endangering anyone at the time of his arrest.
At sentencing, the court announced that it was imposing the midterm sentence of four years. The minute order and abstract of judgment indicate Tanksley was sentenced to the midterm of four years. The minute order states the sentence was doubled pursuant to the three strikes law. A box in the abstract of judgment indicates the defendant was sentenced pursuant to the two strikes law, referring to sections 667, subdivisions (b)-(i) and 1170.12.
Tanksley argues that the court failed to imposed the “legal principal term” and then double it pursuant to the three strikes law. Tanksley argues the court failed to apply the proper sentence pursuant to sections 18 and 453. subdivision (a). We disagree. Although the court used a shorthand method of imposing the midterm of four years, it is clear from the discussion by the parties and the court prior to this that the court had stricken a prior prison term allegation and was sentencing Tanksley pursuant to the two strikes provision of the three strikes law. The court announced a four-year midterm sentence, which is the two-year midterm doubled pursuant to the three strikes law.
The court’s sentence is accurately reflected in both the minute order and the abstract of judgment which indicate Tanksley was sentenced pursuant to the three strikes law. His four-year term is properly indicated in both documents and need not be corrected on remand.
DISPOSITION
The case is remanded for the clerk to amend the court minutes to reflect that one of two prior serious felony allegations was dismissed by the trial court pursuant to section 1385 and for the clerk to further indicate in the minutes the trial court’s stated reasons for striking the allegation. The amended clerk’s minutes shall be forwarded to the appropriate authorities. The judgment is affirmed.