Filed 10/23/18 P. v. Espinoza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant David Espinoza was charged by felony complaint with elder or dependent abuse (Pen. Code, § 368, subd. (b)(1), count 1) and resisting an officer (Pen. Code, § 69, count 2). He entered a plea agreement and pled guilty to count 1 as charged and to count 2 as a misdemeanor. The parties stipulated to the police report as the factual basis for the plea. Pursuant to the agreement, a trial court placed defendant on probation for 36 months, ordered him not to violate any laws and to complete the InRoads program. The court subsequently found that defendant violated his probation. It sentenced him to the middle term of three years on count 1 and a concurrent 364 days in county jail, with credit for time served.

Defendant filed a timely notice of appeal. We affirm.

FACTUAL BACKGROUND

A police officer was dispatched to a residence on January 24, 2018, and made contact with defendant. The officer observed that defendant showed symptoms of being under the influence of a controlled substance. He was sweating, his eyes were red, he had a white coating on his tongue, and he appeared disorganized. The officer arrested defendant for being under the influence in violation of Health and Safety Code section 11550, subdivision (a). The officer read defendant his Miranda[1] rights and asked if he was willing to talk about the charge against him. Defendant agreed and told the officer that he smoked methamphetamine approximately 24 hours prior. The officer asked if he was still feeling the symptoms or effects of methamphetamine, and defendant said, “Yes.”

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 one potential arguable issue: did the trial court abuse its discretion in revoking defendant’s probation and sentencing him to prison, rather than reinstating him on probation with a condition that he complete a drug program? 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.

However, we note the April 6, 2018 minute order states that defendant was sentenced to the middle term of two years on count 1. This appears to be a clerical error since the trial court clearly expressed that it sentenced him to the middle term of three years. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 807-808.) 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.) It is evident that the superior court clerk’s error in indicating in the minute order that defendant was sentenced to two years instead of three years was inadvertent. Accordingly, in the interest of accuracy, we will direct the superior court clerk to correct the minute order. We note that the abstract of judgment correctly reflects defendant was sentenced to three years on count 1.

DISPOSITION

The superior court clerk is directed to correct the April 6, 2018 minute order by indicating that defendant was sentenced to the middle term of three years on count 1. The superior court clerk is further directed to forward a copy of the amended minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

RAPHAEL

J.