P. v. Thomas
Filed 10/2/07 P. v. Thomas CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, Plaintiff and Respondent, v. CHERI THOMAS, Defendant and Appellant. | C053486 (Super. Ct. No. 06F02361) |
Defendant Cheri Thomas broke into the home of her recently estranged husband. When her 15-year-old stepson, H.T., tried to call police, defendant grabbed the phone, told him not to call, threatened to have him beat up, punched him several times, pushed him into his bedroom and closed the door. When H.T. peaked out, he saw the defendant taking several items of property belonging to H.T.s father, including the telephone so that H.T. could not call for help.
Defendant was later arrested and charged with first degree residential burglary (Pen. Code, 459[1]- count one), threats to commit a crime resulting in death or great bodily injury ( 422 - count two) and assault with a deadly weapon ( 245, subd. (a)(1) - count three). Defendant entered a plea of no contest to one count of felony vandalism ( 594) in exchange for dismissal of all remaining charges, no immediate state prison term, and a maximum of 180 days in county jail. The court suspended imposition of sentence and placed defendant on formal probation for five years pursuant to express terms and conditions. She was ordered to serve 180 days in jail, minus presentence custody credits.
Defendant made two motions to withdraw her plea: the first motion was voluntarily withdrawn by defendant and the second was denied by the court.
Defendant filed a timely notice of appeal. The trial court granted her request for certificate of probable cause. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.
We do, however, note a discrepancy between the trial courts pronouncement of judgment and its written minute order. At the sentencing hearing, the court awarded defendant 71 days of custody credits. However, the minute order reflects an award of only 70 days. Where there is a discrepancy between the oral pronouncement of judgment and the minute order . . . , the oral pronouncement controls. [Citations.] (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) To correct this error, we direct the trial court to prepare an amended minute order to reflect 71 days of presentence custody credits. (People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct clerical errors].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended minute order consistent with this opinion.
NICHOLSON , J.
We concur:
BLEASE , Acting P.J.
SIMS , J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
[1] Further undesignated references are to the Penal Code.
