P. v. Parra




Filed 4/18/11 P. v. Parra 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. JOHN ANGEL PARRA, Defendant and Appellant.

E051395 (Super.Ct.No. FSB056927) OPINION

APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Donna G. Garza, and W. Robert Fawke, Judges. Affirmed with directions.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

Defendant and appellant John Angel Parra was charged by a second amended information with first degree residential robbery (Pen. Code, § 211, count 1), possession
of a firearm by a felon with priors (Pen. Code, § 12021, subd. (a)(1), counts 2 & 3), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 4), and receiving stolen property (Pen. Code, § 496d, subd. (a), count 5). As to count 1, it was alleged that defendant personally used a firearm. (Pen. Code, § 12022.53, subd. (b).) In addition, it was alleged that defendant had two prior strike convictions (§§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i)), served two prior prison sentences (§ 667.5, subd. (b)), and had two prior serious felony convictions (§ 667, subd. (a)(1)). A Marsden motion was heard and denied by the trial court.^[1]
Defendant subsequently entered into a plea agreement and pled guilty to count 1. He also admitted one prior strike conviction, the two prior prison allegations, and an allegation that he committed the robbery while he was voluntarily acting in concert with two or more other persons.^[2] In exchange, the prosecution agreed to “dismiss [the] remaining counts/priors/enhancements.” The trial court sentenced defendant to 20 years in state prison and dismissed the remaining counts, pursuant to the terms of the plea agreement. The sentence consisted of the upper term of nine years, doubled pursuant to the prior strike, plus one year for each of the prior prison convictions.^[3]
Defendant filed a notice of appeal, in propria persona, indicating that he was challenging the validity of the plea, and that the appeal was “based on the sentence or other matters occurring after the plea,” as well as the denial of a motion to suppress evidence. He filed a request for certificate of probable cause, which listed numerous case cites and their apparent holdings. It also stated that defendant filed a motion to preclude the prosecution’s use of “pretrial and in court” identification, but, “as [of] the date of [defendant’s] sentence [such motion] was refused to be heard.” The trial court denied the request for a certificate of probable cause. We affirm with directions.
FACTUAL BACKGROUND
The following brief statement of facts is taken from the preliminary hearing transcript, since the parties stipulated that it provided a factual basis for the plea: Early one morning, the victim heard someone knocking on his apartment door. He answered the door, and three unknown men pointed guns at him and forced their way into his apartment. They took items such as computer equipment, a purse, money, and car keys, without his permission. One of the men was defendant.
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 two potential arguable issues: 1) whether defendant’s guilty plea was constitutionally valid; and 2) whether the trial court properly denied his Marsden motion. 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. He filed a request for an extension to serve and file a supplemental brief, which we granted. However, defendant failed to subsequently file a supplemental brief.
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. We note, however, errors in the minute order and abstract of judgment. The reporter’s transcript reflects that defendant admitted he committed the robbery in count 1 while he was voluntarily acting in concert with two or more other persons. (Pen. Code, § 213, subd. (a)(1)(A).) However, the minute order from the February 19, 2010, change of plea hearing fails to reflect this admission. We further note that the minute order from the June 2, 2010, sentencing hearing erroneously indicates that the trial court ordered “Prior # 2 stricken.” The reporter’s transcript from the sentencing hearing states that the trial court dismissed “the remaining counts,” pursuant to the plea. Pursuant to the plea

agreement, defendant admitted the second prior conviction allegation, which was the strike prior for an attempted robbery on August 12, 2004. Thus, the trial court did not, as “recorded” by the clerk, dismiss “Prior #2.” This notation must be stricken from the minutes.
Where there is a discrepancy between the oral pronouncement rendering judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) We have the inherent power to correct clerical errors in the clerk’s minutes to make them accurately reflect the oral judgments of sentencing courts. (People v. Zackery (2007) 147 Cal.App.4th 380, 386.) Accordingly, the minute order from the hearing on February 19, 2010 should be modified to reflect that defendant admitted he committed the robbery in count 1 while he was voluntarily acting in concert with two or more other persons, pursuant to Penal Code section 213, subdivision (a)(1)(A). The minute order from the hearing on June 2, 2010, should be amended to delete any reference to the court having ordered “Prior # 2 stricken.”
DISPOSITION
The superior court clerk is directed to amend the February 19, 2010, minute order to reflect that defendant admitted he committed the robbery in count 1 while he was voluntarily acting in concert with two or more other persons, pursuant to Penal Code section 213, subdivision (a)(1)(A).

The clerk is further directed to amend the June 2, 2010, minute order to delete any reference to the trial court having ordered “Prior # 2 stricken.” The clerk shall prepare these amended minute orders and forward a copy of each to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


HOLLENHORST
Acting P.J.

We concur:



McKINSTER
J.



KING
J.

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