Filed 1/11/18 P. v. Bryant CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
MARCUS T. BRYANT,
Defendant and Appellant.

A149510

(Alameda County Super. Ct.
No. C175936)


Appellant Marcus T. Bryant appeals from a judgment following a contested probation revocation hearing. Appellant’s counsel originally raised no issue on appeal and asked this court for an independent review of the record to determine whether there were any arguable issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant’s counsel advised appellant of his right to file a supplementary brief to bring to this court’s attention any issue he believes deserves review. (People v. Kelly (2006) 40 Cal.4th 106.) Appellant has not filed such a brief. We directed the parties to file supplemental briefing regarding custody credits, previously waived by appellant, that were credited to appellant at his final sentencing. After consideration of that briefing, we affirm.

BACKGROUND
On March 23, 2015, appellant was charged by information with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count one), and 18 prior prison terms (§ 667.5, subd. (b)) were alleged. In April 2015, appellant pleaded no contest to assault by force likely to produce great bodily harm (§ 245, subd. (a)(4)), which was stipulated to be a lesser included offense. In exchange, count one and the prior prison term allegations would be dismissed at the time of sentencing; and appellant would be placed on probation. Appellant was released from custody pending sentencing subject to a Cruz waiver.
Although appellant failed to appear at his initial sentencing hearing the trial court did not enforce the Cruz waiver and on May 22, 2015 appellant was sentenced to five years’ probation, and a jail term of 108 days (equal to the custody credits he had accrued to that point). Standard probation conditions were also ordered, including a condition to “[o]bey all laws.”
On June 2, 2015, appellant was arrested on charges of theft (§ 484, subd. (a)), receiving stolen property (§ 496, subd. (a)), and trespassing (§ 602, subd. (l).) Probation was summarily revoked on June 5. On July 17, appellant admitted the probation violation pursuant to an agreed disposition that he serve a 120-day jail term (less 92 days sentence credits) and again be placed on probation with the same terms and conditions originally imposed. As part of this agreement he also agreed to waive those 120 days of credit against any future prison sentence. (See People v. Burks (1998) 33 Cal.App.4th 232 (Burks).)
On March 10, 2016, appellant was arrested on a charge of prowling. (§ 647, subd. (h).) Probation was revoked on March 16. On March 30 appellant admitted this second probation violation in exchange for serving a 180-day jail term and having probation reinstated on the same terms and conditions as before. He again agreed to waive sentencing credit for the 180-day jail term against any prison term that he may be sentenced to following a future probation violation.
On June 27, 2016 appellant was again arrested for prowling. (§ 647, subd. (h).) At a contested probation revocation hearing on August 24, the court found appellant had violated probation.
On September 23, appellant was sentenced to 3 years in prison. At sentencing the court, without objection by respondent, granted appellant the custody and conduct credits previously waived as part of the negotiated dispositions reinstating appellant’s probation after his two previous admitted probation violations. Just prior to the conclusion of the sentencing hearing, appellant’s counsel thanked the court, saying “. . . just one more note for the record. I just wanted to say that I appreciate . . . Your Honor giving [appellant] those additional conduct credits rather than having us go through the court file and try to sort out the Burks waivers.” The court responded, “All right.” Counsel then added, “I know that that’s above and beyond, and I appreciate it.” And the court replied, “You’re welcome.” The hearing then concluded.
This appeal followed.
DISCUSSION
Appellant was credited with having served 280 days actual time (plus conduct credit of 280 days) at the time of his sentencing. This amount includes 150 actual days and 150 conduct credits for time served as part of the agreements granting additional opportunities on probation following appellant’s first two probation violations. As his Opening Brief noted, appellant had previously waived credit for this time.
In supplemental briefing, appellant contends the trial court, as an act of sentencing discretion, chose to ignore appellant’s Burks waiver and credit him for the time served after his initial probation violations. Respondent argues the court’s failure to deduct the credits was a clerical error, subject to correction. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [“ ‘[A] court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts.’ ”].) Clerical errors include “inadvertent errors made by the court ‘which cannot reasonably be attributed to the exercise of judicial consideration or discretion.’ ” (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034; see also People v. Jack (1989) 213 Cal.App.3d 913, 917 [“The law permits an amendment if the record clearly demonstrates that the error was not the result of an exercise of judicial discretion.”].)
We agree with appellant. At the close of sentencing, and after the disputed credits were awarded, appellant’s counsel twice thanked the court for including the previously waived credits and specifically mentioned the “Burks waiver.” The court acknowledged these remarks and responded, “You’re welcome” after counsel’s second statement. Given that the court was aware the previously waived credits were granted to appellant prior to concluding the sentencing hearing and no correction to the sentence was made, the act of including the previously waived credits can “ ‘reasonably be attributed to the exercise of judicial . . . discretion.’ ” (Tobias, supra, 208 Cal.App.3d at p. 1034.)
DISPOSITION
The judgment is affirmed.


 




SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.





(A149510)