Fear Not Law Articles: PEOPLE v. ZACKERY

PEOPLE v

PEOPLE v. ZACKERY

Filed 2/1/07 (on rehearing)

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

THE PEOPLE,

Plaintiff and Respondent,

DONALD LOUIS ZACKERY,

Defendant and Appellant.

C051431

(Super. Ct. No. SF093126)

OPINION ON REHEARING

APPEAL from a judgment of the Superior Court of San Joaquin County, K. Peter Saiers, J. Reversed with directions.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Mary Jo Graves, Michael P. Farrell, Assistant Attorneys General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

In this case, we discuss the obligation of a trial court clerk to accurately record the sentence pronounced by the judge in a criminal proceeding. Here, the court clerk included in the minutes and the abstract of judgment some provisions that were not in the judge's pronouncement of sentence. This was error, which was compounded by the fact the judge erroneously sentenced defendant on a count for which he was not convicted. We also shall address the judge's remark, on the record and in open court, that, â€

Description	Where court clerk's minutes of plea change, minutes of sentencing, and abstract of judgment did not reflect what occurred in proceedings and included items never orally imposed by trial judge in defendant's presence, minutes must be stricken to reflect what actually occurred and the judgment that the judge actually pronounced. Where clerk erroneously indicated in minutes of plea change that defendant changed his plea from not guilty to no contest, sentence on that count was unauthorized and must be vacated.
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