Filed 8/16/22 P. v. Brown 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Richard V. Peel, Judge. Affirmed with directions.

Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Acting Senior Assistant Attorney General, and A. Natasha Cortina, Lynne G. McGinnis, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Kenyon Darrell Brown appeals from the denial in 2021 of his motion to vacate his conviction and/or sentence under Penal Code section 1473.7.[1] However, he does not argue that the denial was erroneous. Rather, he asks us to correct a clerical error in the minute order of his no contest plea and sentencing in 2017. We conclude that — while it would have been faster and more economical for defendant to ask the trial court to correct the error — he is entitled to have us correct it.

I

STATEMENT OF THE CASE

In 2017, defendant was charged in count 1 with one count of malicious and intentional cruelty to an animal (§ 597, subd. (a)) and in count 2 with simple cruelty to an animal (§ 597, subd. (b)), each with an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)).[2] It was further alleged that he had a 2009 “strike” prior conviction for attempted murder. (§§ 667, subds. (b)-(i), 1170.12.)

He entered into a plea bargain; it called for him to plead no contest to count 1, to admit the related enhancement, and to be placed on felony probation on terms including 180 days in jail. In return the People were to “[d]ismiss [the] remaining charges and enhancements.”

At sentencing, he was placed on probation, as agreed. Orally, the trial court said, “I’ll . . . dismiss any and all remaining counts.” The minute order, however, does not reflect this.

In 2018, defendant violated his probation by committing robbery. In 2019, he admitted the robbery, the probation violation, and one strike prior and was sentenced to four years in prison (to be served concurrently with a ten-year sentence for the robbery).[3]

In 2021, defendant filed a motion to vacate the conviction and/or the sentence for animal cruelty. (§ 1473.7.) He alleged that: (1) he was entitled to the “future ben[e]fits” of then-pending Assembly Bill No. 1509 (2021-2022 Reg. Sess.), which would have repealed section 12022; (2) the trial court should have reduced the conviction to a misdemeanor; (3) he had been under the influence and had not intentionally injured the animal; and (4) the enhancement was imposed (and made the conviction a strike) even though it was never found true by a jury. The trial court denied the motion without a hearing. Defendant appealed from the denial and obtained a certificate of probable cause. (See § 1237.5.)

II

DEFENDANT IS ENTITLED TO THE CORRECTION OF THE CLERICAL ERROR

Even though defendant is appealing from the denial of his motion to vacate in 2021, he does not contend that it was erroneous. Rather, he contends that the trial court erred back in 2017, by failing to dismiss count 2 and the strike prior allegation as the plea bargain called for.

“Courts may correct clerical errors at any time . . . . [Citations.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) “Clerical error can be made by a clerk, by counsel, or by the court itself. [Citations.]” (People v. Jack (1989) 213 Cal.App.3d 913, 915.) “‘“Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion. [Citations.]”’ [Citation.]” (People v. Davidson (2008) 159 Cal.App.4th 205, 210.)

The People argue that the trial court did orally dismiss count 2 and the strike prior. They point out that “‘[w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.’ [Citation.]” (People v. Clark (2021) 67 Cal.App.5th 248, 260-261.) They conclude that there is no clerical error to be corrected.

We disagree, for two reasons.

First, the trial court said, “I’ll . . . dismiss any and all remaining counts.” Thus, while it did dismiss count 2, it did not expressly dismiss the strike prior allegation. Obviously, it intended to. That is what the plea bargain called for; moreover, it had to dismiss the strike prior allegation before it could place defendant on probation. (§§ 667, subd. (c)(2), 1170.12, subd. (a)(2).)

Second, neither the dismissal of count 2 nor the dismissal of the strike prior allegation is reflected in the minute order. Even though the oral pronouncement of judgment is controlling, defendant is entitled to have the minute order corrected.

Hence, we will direct the trial court to correct the minute order in both respects.

III

DISPOSITION

The order appealed from is affirmed. On remand, the clerk of the superior court must enter a corrected minute order for the hearing on May 30, 2017, which must expressly state that both count 2 and the strike prior allegation were dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

SLOUGH

J.

[1] All further statutory citations are to the Penal Code.

[2] This enhancement does not require that the victim be human. (People v. Smith (2007) 150 Cal.App.4th 89, 93-94.)

[3] Because of the deadly or dangerous weapon enhancement, the 2017 animal cruelty conviction was a strike. (§ 667, subd. (d)(1), 1192.7, subd. (c)(23).) Nevertheless, defendant was allowed to admit only the 2009 strike prior and to receive a two-strikes sentence rather than a three-strikes sentence.