Opinion
C042120.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ALLEN DALE WEST, Defendant and Appellant.
On June 14, 2001, defendant Allen Dale West entered a negotiated plea of no contest to forgery (Pen. Code, § 475, subd. (c); further undesignated statutory references are to the Penal Code) in case No. CM014396. On August 9, 2001, defendant failed to appear for sentencing and the court revoked his release on his own recognizance.
On July 11, 2002, defendant entered a negotiated plea of no contest for failure to appear (§ 1320, subd. (b)) and admitted a prior prison term (§ 667.5, subd. (b)) in case No. CM015941.
The trial court sentenced defendant to the middle term of two years for the forgery, a consecutive eight months for failure to appear, an additional consecutive eight months for an incomplete sentence imposed in Sutter County (case No. NCRF-01-2562), and an additional consecutive one year for the prior prison term, for an aggregate term of four years four months. The trial court imposed a restitution fine of $ 1,000 (§ 1202.4, subd. (b)) and suspended an additional fine in the same amount pending successful completion of parole (& sect; 1202.45). Defendant was ordered to pay $1,000 in victim restitution. (§ 1202.4, subd. (f).) Defendant was awarded 40 days of custody credit and 20 days of conduct credit.
Defendant appealed. He did not obtain a certificate of probable cause. (§ 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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.
On August 13, 2003, this court received a copy of a letter written by defendants appellate counsel to the superior court in this matter. The letter requests that the superior court strike the portion of the judgment that ordered an additional consecutive eight months in state prison for the incomplete sentence imposed in Sutter County (case No. NCRF-01-2562) on the ground that defendant had actually completed the Sutter County term at the time of sentencing. The letter notes that the documentation necessary to establish that the term had been served is not contained in the appellate record. The letter and proof of service indicate that a copy of the letter was served on the People.
Thereafter, this court received a copy of an amended abstract of judgment, filed September 10, 2003, which omits the eight-month term imposed at sentencing for the Sutter County case and sets forth an aggregate prison term of three years eight months. While this amended abstract of judgment suggests there has been a modification in the judgment, the record contains no indication of a hearing on the matter and no minute order.
A minute order modifying the judgment is necessary if the judgment is to be modified. The amended abstract of judgment does not change the judgment, as it is a clerical function rather than judicial function. (See People v. Mesa (1975) 14 Cal.3d 466, 471.) As the record stands now, the amended abstract of judgment does not reflect the judgment as it was imposed.
Thus, we must remand the matter so that the trial court can provide the parties with notice and an opportunity to be heard and so that a minute order modifying the judgment can be prepared, if appropriate. Thereafter, an amended abstract of judgment must be prepared to reflect the definitive judgment.
In our review of the record, we also discovered a clerical error in the abstract of judgment that must be corrected at the time the amended abstract of judgment is prepared.
The abstract of judgment erroneously reflects that defendant was convicted in case No. CM015941 under Penal Code section 1320, subdivision (a). Defendant, however, was charged with, and pleaded no contest to, a violation of Penal Code section 1320, subdivision (b). When the amended abstract of judgment is prepared, it must reflect defendants conviction under the proper subdivision.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
Disposition
The judgment of conviction is affirmed. The matter is remanded to the trial court for further proceedings and preparation of an amended abstract of judgment consistent with this opinion. Thereafter, the trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections.
We concur: BLEASE, Acting P.J., and ROBIE, J.