Filed 1/26/15 P. v. Wilson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,                                        E060772

v.                                                                        (Super.Ct.No. FWV1303802)

TERRYL OMARI WILSON,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson,

Judge. Affirmed.

         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Meredith S. White, Deputy Attorneys General, for Plaintiff and

Respondent.




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                                      INTRODUCTION

       On November 27, 2013, an information charged defendant and appellant Terryl

Omari Wilson with assault with a firearm under Penal Code1 section 245, subdivision

(a)(2) (count 1); and brandishing a firearm under section 417, subdivision (a)(2) (count

2). As to count 1, the information also alleged that defendant personally used a firearm

under section 12022.5, subdivisions (a) and (d).

       Prior to trial, the trial court dismissed count 2 in the interests of justice on motion

by the People.

       On January 29, 2014, trial commenced. On February 6, 2014, the jury declared it

was deadlocked on count 1; the court declared a mistrial.

       On February 13, 2014, the parties reached an agreement to resolve the case. The

People moved to amend the information to add count 3, assault by means of force likely

to cause great bodily injury under section 245, subdivision (a)(4). Defendant pled no

contest to count 3 in exchange for credit for time served and 12 months of felony

probation. Following his successful completion of felony probation, the court agreed it

would reduce his assault conviction to a misdemeanor.

       On March 10, 2014, defendant filed his notice of appeal. For the reasons set forth

below, we shall affirm the judgment.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


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                                          DISCUSSION

       Defendant contends that the trial court erred when it denied the People’s motion to

dismiss the remaining counts after defendant pled no contest to count 3. The People

concede that the record shows that the court did mistakenly conclude that there were no

remaining counts to dismiss at the hearing. The minute order, however, indicates that

count 1 was dismissed in the interests of justice. We agree with the People that the

court’s inadvertent mistake was corrected. The judgment, therefore, shall be affirmed.

       A.     PROCEDURAL BACKGROUND

       Prior to trial, the trial court dismissed count 2 in the interests of justice on motion

from the People. On February 6, 2014, after the jury deadlocked on the remaining count,

count 1; the court declared a mistrial.

       On February 13, 2014, the parties returned to court for further proceedings. The

parties agreed to amend the information to add count 3, assault by means of force likely

to cause great bodily injury under section 245, subdivision (a)(4). Defendant agreed to

plead no contest to count 3 in exchange for a sentence of credit for time served with a 12-

month probation period. At the end of nine months, the court agreed it would reduce the

felony charge to a misdemeanor. Defendant entered his plea of no contest and the court

sentenced him accordingly.

       The People then moved to dismiss the remaining counts. The court responded:

“All right. Well, you actually dismissed Count 2 earlier before the trial started, and the

lesser was just added, so there really is nothing to dismiss, in the Court’s opinion.” No



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one corrected the trial court that count 1 was still outstanding. However, the minute

order from the same proceeding indicates that count 1 was dismissed in the interests of

justice. Further, the minute order indicates that the court ordered the firearm

enhancement stricken.

       B.     COUNT 1 WAS PROPERLY DISMISSED

       Under section 1385, subdivision (a), prosecutors can make a motion to dismiss

charges “in furtherance of justice.” In general, a trial court’s ruling on a motion to

dismiss charges under section 1385 is reviewed for an abuse of discretion. (People v.

Carmony (2004) 33 Cal.4th 367, 374.)

       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, defendant contends that we must remand this case to the trial court

“with directions to reconsider the motion to dismiss Count 1” because the error in this

case is a “judicial error” and can only be corrected by the trial court. We disagree.

       Here, the trial court’s denial of the People’s motion was an inadvertent mistake

based on a factual mistaken belief that there was “nothing to dismiss.” The record

indicates that both parties and the court intended this count and enhancement allegation to

be dismissed. The trial court accepted defendant’s no contest plea to count 3. It then



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sentenced him on count 3, in accordance with the plea agreement. When the prosecutor

asked for the remaining counts to be dismissed and the court inadvertently indicated that

there were no outstanding counts; neither party mentioned count 1. However, the court

and the parties clearly intended for the remaining counts to be dismissed. The minute

order, however, rectified this inadvertence and correctly noted the dismissal of count 1

and striking of the enhancement. Both parties concede that the court should have

dismissed count 1. We find that the minute order correctly rectified the inadvertent

mistake made by the court.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               MILLER
                                                                                            J.

We concur:


RAMIREZ
                       P. J.


McKINSTER
                          J.




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