P. v. Price













Filed 4/3/17 P. v. Price 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SCOTT RICHARD PRICE, JR.,

Defendant and Appellant.

C080892

(Super. Ct. No. 10F05148)





Defendant Scott Richard Price, Jr., appeals following the trial court’s order denying his petition for redesignation of sentence pursuant to Penal Code section 1170.18. (Further undesignated statutory references are to the Penal Code.) He does not challenge that order. Instead, he seeks the correction ofa clerical error committed at the time of his original sentencing: although the trial court orally imposed four years of probation, the minute order wrongly shows that term as five years.
The Attorney General concedes that the minute order is in error, but asserts that defendant’s contention is forfeited because it is untimely and unrelated to defendant’s notice of appeal. The Attorney General acknowledges that if the contention is not forfeited, the relief defendant requests is proper.
Because we can and must correct a clerical error in the record whenever we become aware of it, the Attorney General’s forfeiture claim fails. We will order the record corrected as defendant requests.
FACTS AND PROCEEDINGS
As the facts of defendant’s offenses are not relevant to his contention on appeal, we omit them.
An information filed on March 2, 2011, charged defendant with six felony counts of second degree commercial burglary; 23 counts in all were alleged against defendant and two codefendants.
On April 25, 2011, defendant pleaded no contest to counts 10 and 11; the remaining counts were dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The trial court found a factual basis for the plea and advised defendant he could be sentenced to up to three years in state prison. After defendant waived referral to probation and requested immediate sentencing, the trial court orally suspended imposition of judgment, placed defendant on formal probation for a term of four years, and ordered him to serve 180 days in county jail with credit for time served. However, a “minute order and order of probation” filed on May 4, 2011, erroneously stated that defendant’s term of probation was five years. Apparently, the court and the parties did not detect the error at the time.
On June 28, 2012, a petition for violation of probation was filed; probation was revoked, but reinstated on July 31, 2013. On May 29, 2015, another probation violation petition was filed; probation was reinstated on June 2, 2015. On August 6, 2015, another probation violation petition was filed; probation was reinstated on September 10, 2015.
On June 30, 2015, defendant filed a petition for redesignation of sentence, asking the trial court to reduce his felony convictions to misdemeanors pursuant to section 1170.18. On October 6, 2015, the trial court denied the petition on the ground that defendant’s burglary convictions were for amounts greater than $950.
Defendant filed a timely notice of appeal from the court’s order denying the petition. The notice of appeal did not mention the erroneous minute order filed on May 4, 2011.
DISCUSSION
“Courts may correct clerical errors at any time, and appellate courts . . . 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.” (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell); see also In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).) An appellate court may correct clerical errors on its own motion or on application of the parties. (Mitchell, at pp. 186-187; Candelario, at p. 705.)
Where a defendant is confined in a city or county jail as a condition of probation, a certified copy of the probationary order is furnished to the officer whose duty it is to execute that order. (§ 1213.) Thus, the “minute order and order of probation” entered in this case is equivalent to an abstract of judgment for purposes of the Mitchell-Candelario rule. As we have mentioned, the Attorney General properly concedes that that order was erroneous and the error was clerical in nature. (Cf. People v. Zackery(2007) 147 Cal.App.4th 380, 385[oral pronouncement of judgment, not minute order, controls].)
The Attorney General asserts, however, that we should disregard this problem and allow the error to go uncorrected because (1) defendant did not file a timely appeal raising the issue in 2011 and (2) the issue was not encompassed in his notice of appeal from the order denying redesignation of sentence. We disagree. The Attorney General’s position cannot be reconciled with Mitchell and Candelario, which this court is bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, the Attorney General’s argument confuses the appealable orders made by the trial court in this case (the order granting probation and the subsequent order denying redesignation of sentence) with the minute order entered by the clerk of the court that purported to summarize the order granting probation, but did so incorrectly.(Cf. People v. Zackery, supra,147 Cal.App.4th at p. 385.)Defendant’s failure to challenge the order granting probation makes that order final and binding, as the Attorney General states. (Cf. People v. Mendez (1999) 19 Cal.4th 1084, 1094; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) But the fact that an order is final and binding does not mean that a clerical error related to the order is forever uncorrectable. (Mitchell, supra, 26 Cal.4th at p. 185; Candelario, supra, 3 Cal.3d at p. 705.)
We shall direct the minute order filed on May 4, 2011, corrected to reflect the trial court’s oral pronouncement of judgment.
DISPOSITION
The order denying redesignation of defendant’s convictions is affirmed. The matter is remanded to the trial court with directions to correct the minute order filed on May 4, 2011, so that it corresponds to the court’s oral pronouncement of judgment granting probation for a term of four years.



HULL , J.



We concur:



RAYE , P. J.



DUARTE , J.


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