Filed 5/7/18 P. v. Ward 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MELVIN RAY WARD,

Defendant and Appellant.


E068793

(Super.Ct.No. SWF003556)

OPINION


APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed as modified.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On April 15, 2003, a complaint charged defendant and appellant Melvin Ray Ward with one count of assault with a deadly weapon under Penal Code section 245, subdivision (a)(1) (count 1). The complaint also alleged that defendant personally inflicted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8), and 12022.7, subdivision (a).
On April 22, 2003, defendant pled guilty to count 1 and denied the enhancements. Pursuant to the plea agreement, the parties agreed that the enhancements “shall be dismissed.” Accordingly, the trial court struck both enhancements and sentenced defendant to two years in prison. The abstract of judgment lists the two dismissed enhancements with an “S” next to each enhancement under the column for time imposed.
On June 1, 2017, defendant filed a motion with the trial court to correct the abstract of judgment, requesting that the court delete the enhancements listed in the abstract. On June 13, 2017, the trial court denied the motion, and stated:
“The court takes no action. [¶] The abstract of judgment correctly reflects that [¶] the enhancements per 1192.7(c)(8) and 12022.2(A)[ ] [¶] PC were stricken. No further action to be taken [¶] on the defendant[’]s request since the abstract [¶] reflects what he contends it should reflect.”
On July 20, 2017, defendant filed a notice of appeal.
DISCUSSION
A. THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED
Defendant contends that the trial court erred in denying his motion to correct the abstract of judgment because the two dismissed enhancements were incorrectly reflected in the abstract, contradicting the court’s oral pronouncement and the abstract’s stated directions. Defendant, therefore, argues that the enhancements should be stricken from the abstract of judgment. The People concede and state that, “to properly reflect the record, the abstract should be amended to delete the listed enhancements.”
The abstract of judgment is not itself the judgment of conviction and cannot prevail over the court’s oral pronouncement of judgment to the extent the two conflict. (§§ 1213, 1213.5; People v. Mitchell (2001) 26 Cal.4th 181, 185.) If the abstract of judgment contradicts the oral pronouncement of a judgment, or if the abstract adds to or modifies the judgment, the oral pronouncement controls. (People v. Jones (2012) 54 Cal.4th 1, 89; People v. Hartley (2016) 248 Cal.App.4th 620, 637.)
Appellate courts may exercise their authority to correct clerical errors, including correcting an abstract of judgment. (People v. Mitchell, supra, 26 Cal.4th at p. 185; see also People v. Jones, supra, 54 Cal.4th at p. 89.) In correcting an abstract of judgment, the appellate court may strike statements in the abstract to conform with the oral pronouncement. (People v. Zackery (2007) 147 Cal.App.4th 380, 385, 388.)
In this case, the parties agree that defendant’s dismissed enhancements should not have been listed in the abstract of judgment because they were found not true, and were stricken. In accordance with the plea agreement, defendant denied the two charged enhancements and the enhancements were to be dismissed. Accordingly, the trial court struck the enhancements and stated, “At this time, the special allegation under SWF003556 is stricken.” In striking the denied enhancements, the trial court implicitly found the enhancements not true. (See In re Candelario (1970) 3 Cal.3d 702, 706 [where the record is silent regarding a prior conviction and “in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true”].)
Because the trial court implicitly found the enhancements not true by dismissing and then striking the terms, they should not have been listed in the abstract of judgment. Indeed, the directions in the abstract of judgment specifically state, “DO NOT LIST enhancements charged but not found true or stricken under § 1385.” Accordingly, we will modify the abstract of judgment filed on April 30, 2003, striking any reference to enhancements.
DISPOSITION
The enhancements listed on the abstract of judgment filed on April 5, 2003, are stricken in accordance with this opinion. The superior court clerk is directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS



MILLER
J.


We concur:


RAMIREZ
P. J.


McKINSTER
J.