People v. Allen CA4/2

• Court: California Court of Appeal
• Decided: August 27, 2015
• Docket: E062968
• Status: Unpublished

Opinion

Filed 8/27/15 P. v. Allen CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E062968

v. (Super.Ct.No. FVI1300085)

LJ ALLEN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,

Judge. Affirmed as modified.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 On October 29, 2014, defendant and appellant LJ Allen was charged by

information with second degree robbery (Pen. Code, § 211, count 1).1 The information

also alleged that defendant had suffered seven prior prison terms. (§ 667.5, subd. (b).)

The information was later amended by interlineation to allege an added count of assault

by means likely to cause great bodily injury (§ 245, subd. (a)(4), count 3). 2 Pursuant to a

plea agreement, defendant pled no contest to count 3, in exchange for a three-year state

prison term. The parties stipulated that the preliminary hearing transcripts, police reports,

and defendant’s rap sheet provided a factual basis for the plea. Defendant was sentenced

immediately. In accordance with the plea agreement, the court sentenced him to three

years in state prison and awarded 832 days of presentence custody credits.

Defendant filed a timely notice of appeal on February 23, 2015. He then filed an

amended notice, challenging the validity of the plea, and requesting a certificate of

probable cause, based on a claim that his trial counsel told him that assault by means

likely to cause great bodily injury was not a strike conviction; he also claimed he did not

have any prison priors. The court denied his request for a certificate of probable cause.

We now direct the trial court to dismiss count 1 and the seven prior prison

allegations. In all other respects, we affirm the judgment.

1 All further statutory references will be to the Penal Code, unless otherwise noted.

2 Count 3 is referred to as count 2 on the actual plea agreement. The computer would not allow the addition of count 2 for defendant due to a codefendant having a count 2 already.

2 PROCEDURAL BACKGROUND

Defendant was charged with, and pled no contest to, assault by means likely to

cause great bodily injury. (§ 245, subd. (a)(4).)

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 several potential arguable issues: (1) whether the crime defendant pled no

contest to (§ 245, subd. (a)(4)) was a strike prior; (2) whether defendant was given the

full and proper advisements and waivers prior to the entry of his plea; (3) whether his

plea was made knowingly, intelligently, and voluntarily; (4) whether he was advised of

the direct consequences of his plea; (5) whether there was a sufficient factual basis for the

plea; (6) whether the court sentenced him in accordance with the plea agreement; and

(7) whether he was effectively represented during the trial court proceedings. 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 not done. 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 by the parties, we note a few apparent clerical errors.

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

3 in its records so as to make these records reflect the true facts.” (In re Candelario (1970)

3 Cal.3d 702, 705.)

In this case, the court neglected to dismiss count 1 and the seven prior prison

allegations. The plea agreement stated that defendant would plead guilty to assault by

means likely to cause great bodily injury, in exchange for a three-year term in state

prison. There was no mention of the dismissal of count 1 or the priors in the plea

agreement. Defendant pled no contest on January 16, 2015. The court did not dismiss

count 1 or the priors. Nonetheless, the minute order states that the court ordered count 1

and the prison priors dismissed, on motion of the People. Neither party mentioned the

court’s failure to dismiss count 1 or the priors below or on appeal. There is no reference

to count 1 or the prior allegations in the abstract of judgment. Thus, the record indicates

that the parties intended the prior prison allegations and count 1 to be dismissed. It is

evident the court’s failure to order the dismissals was inadvertent. Accordingly, in the

interest of clarity, we will direct the trial court to dismiss count 1 and the prior prison

allegations.

4 DISPOSITION

The trial court is directed to order the dismissal of count 1 and the seven prior

prison allegations. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST Acting P. J.

We concur:

MILLER J.

CODRINGTON J