Filed 6/9/17 P. v. Payton CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 STERLING PAYTON,

Defendant and Appellant.


E067277

(Super.Ct.No. FVI1402154)

OPINION


APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant John Sterling Payton was charged by amended felony complaint with murder. (Pen. Code, § 187, subd. (a), count 1.) The complaint also alleged that he personally and intentionally discharged a firearm, causing great bodily injury and death (§ 12022.53, subd. (d)), and that he personally and intentionally discharged a firearm, within the meaning of section 12022.53, subdivisions (b) and (c). Additionally, the complaint alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)) and that he intentionally killed the victim for the purpose of preventing his testimony in a criminal proceeding (§ 190.2, subd. (a)(10)). Defendant entered a plea agreement and pled no contest to count 1 and admitted the section 12022.53, subdivision (d) firearm allegation. Defense counsel stated for the record that he did not concur in the plea. However, along with the prosecutor, he stipulated that the police reports contained a factual basis for the plea. In exchange for defendant’s plea, the court dismissed the section 190.2, subdivision (a)(10) allegation and the prior prison allegations.
The court sentenced defendant to 25 years to life on count 1, and a consecutive term of 25 years to life on the firearm enhancement, for a total of 50 years to life in state prison, with credit for time served.
Defendant filed a timely notice of appeal, based on the sentence or other matters occurring after the plea. He filed a request for certificate of probable cause, alleging that his sentence constituted cruel and unusual punishment and double jeopardy and violated his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. The court denied the request. We direct the trial court to dismiss the firearm allegations under section 12022.53, subdivisions (b) and (c). In all other respects, we affirm the judgment.
PROCEDURAL BACKGROUND
Defendant was charged with, and pled no contest to, the allegation that on or about May 12, 2014, he committed murder. (§ 187, subd. (a).)
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 a few potential arguable issues: (1) whether the trial court erred by accepting defendant’s plea to first degree murder, which was against the advice of counsel; and (2) whether the court erred by requiring defense counsel to stipulate to the factual basis for the plea and stating that it would not otherwise allow the plea. 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, which he has not done.
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.
Although not raised by the parties, we note an apparent clerical error. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A court “has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]” (In re Candelario (1970) 3 Cal.3d 702, 705.)
In this case, the court neglected to dismiss the firearm allegations pursuant to section 12022.53, subdivisions (b) and (c). The plea agreement stated that defendant would plead guilty to count 1, in exchange for a 25 years to life on count 1, plus 25 years to life on the section 12022.53, subdivision (d) firearm enhancement, for total term of 50 years to life in state prison. There was no mention of the section 12022.53, subdivision (b) or (c) enhancement allegations in the plea agreement. Defendant pled no contest to count 1. The prosecutor moved to dismiss the prior prison allegations and the section 190.2, subdivision (a)(10) allegation, and the court granted the motion. The court did not dismiss the section 12022.53, subdivisions (b) and (c) allegations. Nonetheless, the minute order states that the court “entered” such dismissals “[p]ursuant to [p]lea.” Neither party mentioned the court’s failure to dismiss the firearm enhancement allegations below or on appeal. The court subsequently sentenced defendant to 50 years to life, as agreed upon. There is no reference to the enhancement allegations in the abstract of judgment. Thus, the record indicates that the parties intended the allegations to be dismissed, and it appears to have been an inadvertent clerical error that they were not. Accordingly, in the interest of accuracy and clarity, we will modify the judgment to dismiss the allegations under section 12022.53, subdivisions (b) and (c).
DISPOSITION
The judgment is modified to dismiss the firearm allegations under section 12022.53, subdivisions (b) and (c). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
J.


We concur:


RAMIREZ
P. J.


FIELDS
J.