Spencer
Filed 10/3/13 P. v. Spencer CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CLAUDE CHARLES SPENCER,
Defendant and
Appellant.
F065770
(Super.
Ct. No. F10904772)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Ralph Nunez, Judge. (Retired judge of the Fresno County Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Catherine
White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
Appellant, Claude Charles Spencer, pled
no contest to transportation of cocaine
base (count 1/Health & Saf. Code, § 11352, subd. (a)); possession for
sale of cocaine base (count 2/Health & Saf. Code, § 11351); and he admitted
five prior prison term enhancements (Pen. Code, § 667.5, subd. (b))
two prior conviction enhancements (Health & Saf. Code, § 11370.2).
On appeal, Spencer contends: 1) his
abstract of judgment contains two clerical errors, and 2) the court erred by
its failure to recalculate his presentence custody credit. We find merit to Spencer’s first contention
and direct the court to issue a corrected abstract of judgment. In all other respects, we affirm.
FACTS
On September 16, 2010, Fresno police
officers arrested Spencer during a traffic stop after they found a glass pipe
with white residue and a burnt tip, and a baggie containing 1.29 grams of
cocaine base on his person. Spencer
admitted to the officers he was taking the cocaine base to a hotel to sell it
for $50.
On September 20, 2010, the district
attorney filed a complaint charging Spencer with the counts and enhancements he
pled to.
On March 28, 2011, Spencer entered
his plea in this matter.
On October 25, 2011, the court
struck four prior prison term enhancements and sentenced Spencer to a six-year
local term: the aggravated term of five
years on count 1, a stayed four-year term on count 2, a one-year prior prison
term enhancement, and two stayed three-year prior conviction enhancements.
On June 19, 2012, Spencer filed a
motion seeking compassionate release pursuant to section 1170, subdivision (e),
which the court denied on July 5, 2012.
On July 11, 2012, the court awarded
Spencer 538 days of presentence custody credit consisting of 269 days of
presentence actual custody credit and
269 days of presentence conduct credit.
The court also noted that the stayed terms on the prior conviction
enhancements were unauthorized and it struck the enhancements.
court did not otherwise modify Spencer’s sentence or his award of actual
custody credit.
DISCUSSION
The Error in the Abstract of
Judgment
Spencer
contends his abstract of judgment erroneously fails to indicate that the
sentence on count 2 was stayed. We agree.
“‘It is not open to question that a
court has the inherent power to correct clerical errors in its records so as to
make these records reflect the true facts.
[Citations.] The power exists
independently of statute and may be exercised in criminal as well as in civil
cases. [Citation.] The power is unaffected by the pendency of an
appeal or a habeas corpus proceeding.
[Citation.] The court may correct
such errors on its own motion or upon the application of the parties.’ [Citation.]
Courts may correct clerical errors at any time, and appellate courts
(including this one) that have properly assumed jurisdiction of cases have
ordered correction of abstracts of judgment that did not accurately reflect the
oral judgments of sentencing courts.
[Citations.]†(
181, 185.)
Although the court stayed the
four-year term it imposed on count 2, Spencer’s abstract of judgment
erroneously indicates the court imposed a concurrent four-year term on this
count.
Additionally, item 8 of
Spencer’s abstract of judgment (Judicial Council Form CR-290) states that the
six-year term imposed by the trial court is the “Total Time Excluding County
Jail Term.†Spencer contends the
abstract of judgment should be amended to reflect that the total term includes
the county jail term the court imposed.
The
language complained of is incorrect because Spencer was sentenced to local
time. This issue arose because the trial
court used the version of Judicial Council form CR-290 entitled “Abstract of
Judgment-Prison Commitment-Determinate,†which was revised on July 1,
2009. However, this version of CR-290 is
not suitable for commitments to county jail pursuant to section 1170, subdivision
(h)(1) and (2), and has been superseded by the version of Form CR-290 that was
revised and became effective on July 1, 2012.
This latest version of Form CR-290 is entitled “Felony Abstract of
Judgment-Determinate†and should have been used by the trial court when it
issued an amended abstract of judgment on July 11, 2012, because it is meant to
be used for local commitments pursuant to the above-noted subsections of
section 1170, subdivision (h), as well as determinate prison commitments. Additionally, section 8 of the latest version
of Form CR-290 simply states, “Total Time.â€
In view of the foregoing and the other error complained of above, we
will direct the trial court to issue an amended abstract of judgment using the
version of Form CR-290 that was revised effective July 1, 2012.
The Credit Issue
Spencer contends the court modified
his sentence at the July 11, 2012, hearing when it struck the two-year prior
conviction enhancement it had previously imposed and stayed. He relies on People v. Buckhalter (2001) 26 Cal.4th 20 to contend that this
modification required the court to calculate the days he spent in custody from
October 25, 2011, through July 11, 2012, and to include these days in his
abstract of judgment. We disagree.
Section 2900.1 provides: “Where a defendant has served any portion of
his sentence under a commitment based upon a judgment which judgment is
subsequently declared invalid or which is modified during the term of
imprisonment, such time shall be credited upon any subsequent sentence he
may receive upon a new commitment for the same criminal act or acts.†(Italics added.)
In explaining the application of
section 2900.1, the Supreme Court in Buckhalter
held, “[W]hen a prison term already in progress is modified as the result of an
appellate sentence remand, the sentencing court must recalculate and credit
against the modified sentence all actual time the defendant has already
served, whether in jail or prison, and whether before or since he was
originally committed and delivered to prison custody.†(Buckhalter, supra,
26 Cal.4th at p. 29.) Credit for these
days should be awarded in the new abstract of judgment. (Id. at p. 41.)
Buckhalter is inapposite because Spencer was not
serving a prison term when the court struck the prior conviction enhancements
and his sentence was not modified “as a result of an appellate sentence
remand.†(Buckhalter, supra, 26
Cal.4th at p. 29.) Instead, after
noticing that the stayed terms imposed on the prior conviction enhancements
were unauthorized,
name="_ftnref4" title="">[3] the
trial court simply struck the enhancements without altering any of the other
components of Spencer’s sentence. Thus
we conclude the trial court did not err by its failure to calculate and include
in his abstract of judgment the actual days Spencer served in custody between the
date of his sentencing on October 25, 2011, and July 11, 2012, the date the
court struck the prior conviction enhancements.
DISPOSITION
The trial court is directed to issue
an amended abstract of judgment (Form CR-290, revised on July 1, 2012) that does
not list the two prior conviction enhancements that were stricken by the court
and which shows that the court imposed a stayed term on count 2 and to forward
a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.
name="_ftn1" title="">* Before
Gomes, Acting P.J., Kane, J. and Franson, J.
name="_ftn2" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
