Opinion
C067583 Super. Ct. No. NCR80090
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. TRUMAN VIRDEN, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following his plea of guilty to driving with a blood-alcohol level of .08 percent or higher and driving under the influence (DUI) counts, related vehicle code offenses and his admission of prior convictions, defendant Truman Virden, Jr., was sentenced to eight years in state prison.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with Kelly, we will provide a summary of the offenses and the proceedings in the trial court.
The parties stipulated to CHP report No. F-13813010 as the factual basis for the plea. That report is not contained within our record on appeal. However, it is summarized in the probation report. Accordingly, our statement of facts is taken from the probation report.
On September 10, 2010, while defendant was driving his van, he rear-ended the victim's vehicle and then left the scene of the accident. The victim remained at the scene and contacted the California Highway Patrol to investigate. About two and a half hours after the accident, an officer found defendant's van and conducted a traffic stop. Defendant smelled of alcohol, had watery and bloodshot eyes, and was unsteady on his feet. He failed field sobriety tests, and a breath test indicated he had a blood-alcohol level of .25 percent.
Defendant was charged with one count of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), driving with an alcohol level of .08 percent or higher (Veh. Code, § 23152, subd. (b)) with three prior DUI-related convictions (Veh. Code, §§ 23550, 23550.5), two counts of driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), and hit and run driving (Veh. Code, § 20002, subd. (a)). In addition, as to both driving under the influence counts, it was also alleged defendant had suffered a prior strike conviction (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)). He pled guilty to all counts, admitted the prior conviction allegations and agreed to a maximum penalty of eight years in prison and a fine of $20,000. This was defendant's seventh driving under the influence case in which there was a conviction in 35 years. The court sentenced defendant to the maximum term of eight years and imposed various fines and fees. The court did not award any custody credits and the probation report indicates he was not entitled to them because he was in custody on a parole violation. Defendant did not seek or obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We have undertaken an independent examination of the entire record and have found no arguable error that would result in a disposition more favorable to defendant. We have, however, found an error in the abstract of judgment that requires correction. The abstract of judgment reflects that defendant was awarded 241 days of total presentence custody credit under Penal Code section 4019. The reporter's transcript does not reflect that the court awarded defendant any custody credits. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) The judge pronounces judgment and the clerk enters the judgment into the minutes and the abstract of judgment; therefore, any inconsistency is presumed to be a clerical error. (Mesa, supra, 14 Cal.3d at p. 471.) We have the inherent authority to correct clerical errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment, reflecting defendant was not awarded presentence custody credit, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
MURRAY, J. We concur:
ROBIE, Acting P. J.
BUTZ, J.