Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI902348, Miriam I. Morton, Judge.
Victoria Matthews, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
Defendant and appellant Michael Earl Pep was charged with possession of cocaine (Health & Saf. Code, § 11350, subd. (a), count 1), possession of a smoking device (Health & Saf. Code, § 11364, subd. (a), count 2), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 3). As to count 1, it was also alleged that he had one prior strike for a section 459 burglary conviction. (Pen. Code, §§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i).) In addition, it was alleged that defendant had suffered six prior prison convictions. (Pen. Code, § 667.5, subd. (b).) Pursuant to a plea agreement, defendant pled guilty to count 1 and admitted as true the prior strike allegation. The trial court dismissed the remaining counts. Defendant subsequently filed a handwritten motion to withdraw his plea, which the trial court denied. The trial court sentenced defendant, as agreed upon, to two years in state prison on count 1, doubled for the strike conviction, with 290 days of credit (194 actual, plus 96 conduct credits).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal. We direct the trial court to dismiss the six prior prison allegations. (§ 667.5, subd. (b).) In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
The following statement of facts is taken from the police report: On October 18, 2009, Deputies Korkotsakis and Hogan were on foot patrol, when they observed defendant and Mario Davis, standing in front of a dumpster in an empty parking lot. The deputies approached them and determined that both men were on parole. Deputy Korkotsakis conducted a parole search of Davis and determined that he was in compliance with his parole terms. Deputy Hogan conducted a parole search of defendant and found a pack of cigarettes in his front pants pocket. The cigarette pack contained a cigarette, a glass pipe, and a plastic wrapper around the cigarette with a “white rocklike substance” in it, which appeared to be cocaine. Deputy Korkotsakis used a field test kit to test the substance. It weighed 0.04 grams, including the packaging. The substance tested positive for cocaine. Defendant was arrested.
ANALYSIS
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues, including: 1) whether defendant was properly advised of his constitutional rights and the consequences of pleading guilty; 2) whether defendant waived his constitutional rights before pleading guilty; 3) whether his guilty plea was valid; and 4) whether the trial court abused its discretion in denying his motion to withdraw his guilty plea, which was based on ineffective assistance of counsel (IAC). Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. We initially note that defendant’s brief, filed on October 28, 2010, is entitled “Supplemental Brief” and has a subtitle of “Petition for Writ of Habeas Corpus.” In a footnote, defendant states that the habeas petition is “being used as the supplemental brief.” However, on page 3 of the supplemental brief, he states that, on October 13, 2010, he submitted a motion to have counsel removed and for an extension of time to file an in propria persona brief. This court never received that motion and, given the title and content of defendant’s supplemental brief filed on October 28, 2010, we assume he decided against filing such motion.
The first and third issues in defendant’s supplemental brief concern IAC and are based on matters outside the record. Defendant has failed to raise a reasonably arguable issue in the context of a habeas petition because he has not attached any documentary evidence to support his claims. (See People v. Duvall (1995) 9 Cal.4th 464, 474.) We further note that defendant previously raised similar IAC claims in his handwritten motion to withdraw his plea, which the trial court heard and denied.
The second issue in defendant’s supplemental brief is not clearly articulated, but we infer from his supplemental brief that he believes the prosecution had evidence showing that the weight of the substance tested by the crime lab was less than 0.04 grams. He claims the prosecution attempted to cover up “the true weight” of the cocaine, in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady). Defendant appears to believe that evidence of the actual weight of the substance would have exculpated him, since it could have shown that he did not possess a “usable amount” of cocaine.
Defendant’s Brady claim fails. In Brady, “the United States Supreme Court held that a defendant’s right to due process is violated when ‘favorable’ evidence that has been ‘suppressed’ by the prosecution is ‘material’ to the issue of guilt or punishment.” (In re Pratt (1999) 69 Cal.App.4th 1294, 1312.) Here, defendant’s contentions that the cocaine weighed less than 0.04 grams, and that the prosecutor suppressed evidence of its “true weight, ” are speculative. To the extent he is contending that anything less than 0.04 grams of cocaine is not a usable amount as a matter of law, we disagree. A usable amount of a controlled substance is a quantity sufficient to be consumed in any manner customarily employed by users of the substance, as opposed to residue, debris, or useless traces. (People v. Leal (1966) 64 Cal.2d 504, 512; People v. Piper (1971) 19 Cal.App.3d 248, 250; People v. Johnson (1970) 5 Cal.App.3d 844, 848.) The cocaine here was described in the police report as a “white rock.” Thus, it was a discrete, discernible object, not a useless trace or mere residue.
More importantly, defendant pled guilty. “[A] guilty plea constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt. [Citation.] It waives a trial and obviates the need for the prosecution to come forward with any evidence. [Citations.] A guilty plea thus concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant’s guilt beyond a reasonable doubt. (People v. Turner (1985) 171 Cal.App.3d 116, 125 (Turner).) Accordingly, a plea of guilty waives any right to raise questions regarding the evidence. (Ibid.) It also forecloses defendants from raising issues material to the question of guilt or innocence. (People v. Ahern (1984) 157 Cal.App.3d 27, 33.) Defendant’s Brady claim plainly relates to issues of the evidence and his innocence. By virtue of his guilty plea, defendant is foreclosed from raising such issues. (Ibid.; Turner, at p. 125.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
Although not raised as an issue by the parties, we note that the record does not show any disposition on the six prior prison convictions. (§ 667.5, subd. (b).) After defendant pled guilty, the People moved to dismiss “the remaining counts, ” and the trial court so ordered. There was no mention of the six prior prison convictions in the plea agreement, and the trial court did not dismiss the six prior prison allegations in its oral pronouncement at the plea hearing or the sentencing hearing. Notwithstanding the oral pronouncement of judgment, the minute order states that the trial court ordered the six prior prison allegations stricken, and there is no reference to the section 667.5, subdivision (b), allegations in the abstract of judgment.
Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A court “has inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. [Citations.]” (Id. at p. 807; see also In re Candelario (1970) 3 Cal.3d 702, 705.) In People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 (Fourth Dist., Div. Two), we ordered the abstract of judgment corrected because the trial court made “an obviously inadvertent misstatement” in pronouncing judgment under the wrong enhancement statute. (Ibid.) In this case, the trial court neglected to dismiss the six prior prison allegations. (§ 667.5, subd. (b).) The record indicates that both parties and the trial court intended these six enhancement allegations to be dismissed. The trial court accepted defendant’s guilty plea to count 1 and took his admission on the prior strike allegation. The trial court sentenced him on count 1, doubled pursuant to the strike conviction. Neither party mentioned the trial court’s failure to dismiss the six prior prison allegations below or on appeal. Thus, it is evident the trial court’s failure to order the dismissal of these allegations was inadvertent. Accordingly, we will direct the trial court to dismiss the section 667.5, subdivision (b), allegations.
DISPOSITION
The trial court is directed to order the dismissal of the allegations under section 667.5, subdivision (b). In all other respects, the judgment is affirmed.
We concur: RAMIREZ P. J., McKINSTER J.