Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV901805 Micheal R. Libutti, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
Defendant and appellant Dernale Thompson was charged with kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1), count 1), second degree robbery (Pen. Code, § 211, count 2), making criminal threats (Pen. Code, § 422, count 3), commercial burglary (Pen. Code, § 459, count 4), grand theft (Pen. Code, § 487, subd. (a), counts 5-8), attempted grand theft (Pen. Code, §§ 664, 487, subd. (a), counts 9-10), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), counts 11-14), and resisting an officer (Pen. Code, § 148, subd. (a)(1), count 15). Counts 1 through 3 were serious felonies (Pen. Code, § 1192.7, subd. (c)(8)), and counts 1 and 2 were violent felonies (Pen. Code, § 667.5, subd. (c)(8)). As to counts 1, 2 and 4 through 14, it was alleged that defendant took property exceeding $200,000 (Pen. Code, § 12022.6, subd. (a)(2)), and that he had suffered one strike conviction (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). As to counts 1 and 2, it was alleged that defendant personally used a firearm. (Pen. Code, § 12022.53, subd. (b).) As to counts 1 through 3, it was alleged that defendant suffered a prior serious felony conviction. (Pen. Code, § 667, subd. (a).) As to counts 1, 2, and 4 through 10, it was alleged that a principal was armed with a handgun. (Pen. Code, § 12022, subd. (a)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
Pursuant to a plea agreement, defendant pled no contest to count 2. He also admitted as true the allegations that he had suffered a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); that he took property exceeding $200,000 (§ 12022.6, subd. (a)(2)); and that he was a principal armed with a handgun in the commission of the robbery in count 2 (§ 12022, subd. (a)(1)). The court sentenced defendant, as agreed upon, to five years on count 2, doubled pursuant to the strike conviction, plus two consecutive years for the section 12022.6, subdivision (a)(2), enhancement, and one consecutive year for the section 12022, subdivision (a)(1), enhancement, for a total of 13 years.
On appeal, defendant’s sole claim is that the amended abstract of judgment should be corrected to delete the reference to the section 667, subdivision (a)(1), enhancement. The People concede, and we agree. We further direct the trial court to dismiss counts 1 and 3 through 15, as well as the allegations under section 12022.53, subdivision (b), and section 667, subdivision (a). In all other respects, we affirm the judgment.
Because the issue on appeal only involves a correction to be made on the abstract of judgment, there is no need to include a statement of facts in this opinion.
I. The Abstract of Judgment Should Be Amended
Defendant entered a plea agreement, in which he pled no contest to count 2 and admitted the truth of the allegations that he was a principal armed with a handgun in the commission of the robbery in count 2 (§ 12022, subd. (a)(1)); that he had a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); and that he took property exceeding $200,000 (§ 12022.6, subd. (a)(2)).
He did not plead guilty to any other charges or admit any other allegations. However, the amended abstract of judgment, filed on October 12, 2010, reflects that the court imposed a term on an enhancement under section 667, subdivision (a)(1).
Defendant contends, and the People concede, that the amended abstract of judgment should be corrected to delete the reference to the section 667, subdivision (a)(1), enhancement. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Defendant did not admit a section 667, subdivision (a)(1), enhancement, and the court did not impose a term for such enhancement. Thus, the superior court clerk should amend the abstract of judgment to delete the reference to the section 667, subdivision (a)(1), enhancement.
II. The Remaining Counts and Enhancement Allegations Should Be Dismissed
Although not raised as an issue by the parties, we note that the record does not show any disposition on counts 1 and 3 through 15, or the section 12022.53, subdivision (b), and section 667, subdivision (a), allegations. There was no mention of these counts or these enhancement allegations in the plea agreement, and the trial court did not dismiss these counts or enhancements in its oral pronouncement at the sentencing hearing. Notwithstanding the oral pronouncement of judgment, the minute order states that counts 1 and 3 through 15, and the section 12022.53, subdivision (b), allegation, were ordered dismissed, on motion of the People, pursuant to the plea agreement. There are no references to these counts or the 12022.53, subdivision (b), enhancement 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 the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]” (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. In this case, the court neglected to dismiss counts 1 and 3 through 15, and the section 12022.53, subdivision (b), and section 667, subdivision (a), enhancements. The record indicates that both parties and the court intended these counts and enhancement allegations to be dismissed. The trial court accepted defendant’s no contest plea to count 2 and took his admissions on the enhancement allegations. It then sentenced him on count 2, doubled pursuant to the strike conviction, and on the two enhancements, in accordance with the plea agreement. Neither party mentioned the court’s failure to dismiss the remaining counts or enhancement allegations below or on appeal. Thus, it is evident the court’s failure to order the dismissals was inadvertent. Accordingly, we will direct the trial court to dismiss counts 1 and 3 through 15, as well as the allegations under section 12022.53, subdivision (b), and section 667, subdivision (a). We will also direct the superior clerk to generate a new minute order reflecting the court’s dismissals, and noting that the May 27, 2010 minute order incorrectly stated that the court dismissed those counts and allegations at that time.
DISPOSITION
The trial court is directed to dismiss counts 1 and 3 through 15, as well as the allegations under section 12022.53, subdivision (b), and section 667, subdivision (a). In addition, the superior court clerk is directed to amend the abstract of judgment by deleting the reference to the section 667, subdivision (a)(1), enhancement. Also, the superior court clerk is directed to generate a new minute order reflecting that: 1) the May 27, 2010 minute order incorrectly states that the court dismissed counts 1 and 3 through 15, and the allegations under section 12022.53, subdivision (b), and section 667, subdivision (a); 2) the trial court has now dismissed those counts and allegations; and 3) the abstract of judgment has been amended to delete the reference to the section 667, subdivision (a)(1) enhancement. The clerk is further directed to forward an amended copy of the abstract of judgment and a copy of the new minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: KING J., MILLER J.