P. v. Perry
Filed 4/26/07 P. v. Perry 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(San Joaquin)
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THE PEOPLE, Plaintiff and Respondent, v. JACK LEE PERRY, JR., Defendant and Appellant. | C050057 (Super. Ct. Nos. SF082909A, SF085903B, SF074706A) |
In each of these three superior court cases, defendant Jack Lee Perry, Jr., admitted violating probation. Thereafter, the court revoked probation, and imposed sentence in all three cases in a single proceeding. On appeal, defendant urges us to correct errors in the abstract of judgment because it (1) incorrectly identifies one of the offenses of which he was convicted and (2) incorrectly indicates that the sentences he received in two cases represent the low, rather than the middle, term for each offense. His claims of error have merit: We shall order the abstract amended.
DISCUSSION
In case No. SF074706A, defendant was charged in 1998 with (among other crimes) violating a domestic violence restraining order by stalking, in contravention of Penal Code section 646.9, subdivision (b). The reporters transcript shows he entered a negotiated plea of no contest to a lesser charge of simple stalking, a violation of Penal Code section 646.9, subdivision (a) and the remaining charges were dismissed. Inexplicably, the code violation to which defendant pled was apparently never properly entered in the court records, and subsequent references to this case in the clerks transcript incorrectly indicate defendant was convicted in this case of violating subdivision (b). Consistent with the error in its records, the trial court erroneously described defendants conviction in case No. SF074706A as a violation of section 646.9, subdivision (b) when it sentenced defendant to two years, suspended execution of judgment, and reinstated probation and, again, when (after probation had been revoked) it ordered the previously imposed sentence executed. The abstract of judgment mirrors those mistakes.
Defendant asks us to order the abstract of judgment corrected to show he was convicted in case No. SF074706A of violating Penal Code section 646.9, subdivision (a), not subdivision (b), and that the two-year sentence he received represents the middle, not the low, term for that offense. The Attorney General concedes the error.
We agree. When the clerks transcript conflicts with the reporters transcript, the two should be harmonized if possible. Where harmony is not possible, the reviewing court credits the part of the record, which, because of its origin and nature or otherwise, is entitled to greater credence. (People v. Smith (1983) 33 Cal.3d 596, 599.) In short, which part prevails depends on the circumstances of each particular case. (Ibid.) In this case, we shall credit the reporters transcript of the proceeding in which defendant entered his no contest plea to section 646.9, subdivision (a), and disregard all subsequent erroneous references in the clerks and reporters transcript to subdivision (b). The abstract of judgment must be amended to reflect the proper code violation, and to show that a two-year sentence imposed for violating Penal Code section 646.9, subdivision (a) represents the middle term for that offense.
As to case No. SF085903B, defendant asks that we also correct the abstract of judgment to indicate that the two-year sentence he received in that case after pleading no contest to possessing methamphetamine (Health & Saf. Code, 11377) represents the middle, not the low, term for that offense. He is correct, and the Attorney General does not contend otherwise. (Health & Saf. Code, 11377; Pen. Code, 18.)
No contentions of error are raised with respect to the third case, No. SF082909A.
DISPOSITION
The abstract of judgment shall be modified to reflect that (1) in case No. SF074706A, defendant was convicted of violating Penal Code section 646.9, subdivision (a), for which he received the two-year middle term sentence and (2) in case No. SF085903B, the two-year sentence he received for violating Health and Safety Code section 11377 represents the middle term for that offense. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
CANTIL-SAKAUYE , J.
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