People v. Cornelius CA4/2

• Court: California Court of Appeal
• Decided: October 19, 2015
• Docket: E062792
• Status: Unpublished

Opinion

Filed 10/19/15 P. v. Cornelius 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E062792

v. (Super.Ct.No. FVI1202826)

HENRY CORNELIUS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed with directions.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant Henry Cornelius was charged by information with two

counts of oral copulation/sexual penetration with a child under the age of 10 (Pen. Code,1

§ 288.7, subd. (b), counts 1 & 2) and one count of committing a lewd act on a child under

the age of 14 (§ 288, subd. (a), count 3). Defendant entered a plea of not guilty by reason

of insanity, but later withdrew that plea. He then entered a plea of not guilty. One day

after the trial began, defendant entered a plea agreement, under which he pled no contest

to count 1. Defense counsel did not join in the plea. The parties stipulated that there was

a factual basis for the plea. The trial court found that defendant voluntarily and

intelligently entered the plea. The court then continued the hearing for sentencing.

Subsequently, defense counsel declared a conflict, and the public defender’s office was

relieved. The court immediately appointed a conflict panel attorney. At a hearing the

following month, the conflict panel attorney confirmed with the court that he was

appointed for the sole purpose of reviewing the issue of withdrawing the plea. However,

he reviewed the plea transcript and found no grounds for withdrawing the plea. The court

then relieved counsel and reappointed the public defender’s office. On January 9, 2015,

the court sentenced defendant to the agreed upon term of 15 years to life in state prison,

with 898 credits for time served (781 actual, plus 117 pursuant to § 2933.1).

Defendant filed a notice of appeal on January 27, 2015. He then filed an amended

notice of appeal on March 10, 2015, based on the sentence or other matters that occurred

after the plea. We direct the court to dismiss counts 2 and 3. Otherwise, we affirm.

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

2 PROCEDURAL BACKGROUND

Defendant was charged with, and pled no contest to, oral copulation/sexual

penetration of a child under the age of 10. (§ 288.7, subd. (b).)

DISCUSSION

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 the following potential arguable issues: (1) whether the appellate record

indicates that defendant was advised of the consequences of pleading guilty and his

constitutional rights, and waived such rights before pleading guilty; (2) whether the

appellate record demonstrates ineffective assistance of counsel; (3) whether the court

abused its discretion in reappointing the public defender’s office; and (4) whether the

court erred in awarding only 15 percent conduct credits. Counsel has also requested this

court to undertake a review of the entire record.

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 an apparent clerical error. 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.)

3 In this case, the court neglected to dismiss counts 2 and 3. The plea agreement

stated that defendant would plead no contest to one count of sexual penetration of a child

under the age of 10 (count 1), in exchange for 15 years to life in state prison and the

dismissal of the remaining counts. Defendant pled no contest to count 1. The court did

not dismiss the remaining counts. Nonetheless, the minute order states that the court

ordered counts 2 and 3 dismissed, on motion of the People. Neither party mentioned the

court’s failure to dismiss counts 2 and 3 below or on appeal. Thus, the record indicates

that the parties intended those counts to be dismissed. It is evident the court’s failure to

order the dismissal was inadvertent. Accordingly, in the interest of clarity, we will direct

the trial court to dismiss counts 2 and 3.

DISPOSITION

The trial court is directed to order the dismissal of counts 2 and 3. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J We concur:

RAMIREZ P. J.

CODRINGTON J.