Filed 9/4/14 P. v. Baker 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060827

v.                                                                       (Super.Ct.No. BAF1300812)

HERBERT MITCHELL BAKER,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,

Judge. Affirmed with directions.

         David K. Rankin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                                              I

                             STATEMENT OF THE CASE

       On November 27, 2013, an amended felony complaint charged defendant and

appellant Herbert Baker with first-degree burglary under Penal Code 1 section 459

(count 1); and possession of a controlled substance (methamphetamine) under Health and

Safety Code, section 11377, subdivision (a) (count 2). The complaint also alleged six

prison priors under section 667.5, subdivision (b); a serious prior offense under section

667, subdivision (a); and a strike prior under sections 667, subdivisions (c) through (e)(i),

and 1170.12, subdivision (c)(1).2

       On February 27, 2014, the court denied defendant’s request to replace his

appointed counsel. On March 10, 2014, defendant entered a plea agreement wherein he

pled guilty to possession of a controlled substance (count 2) and admitted the strike prior,

in exchange for a stipulated sentence of 32 months in state prison and dismissal of the

balance of the complaint.




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

       2      The reporter’s transcript from the March 10, 2014 hearing is clear that
defendant pled guilty to count 2, “That’s a Health and Safety Code 11377(a).” The
felony plea form, executed on the same date as the hearing, stated that defendant was
pleading guilty to violating Health and Safety Code section 11377, subdivision (a). The
minute order from the March 10, 2014 hearing, however, provides that defendant pled
guilty to count 1. Moreover, the abstract of judgment filed on March 14, 2014, provides
that defendant was convicted of count 1 – first degree burglary under Penal Code section
459.

                                              2
       Thereafter, the trial court sentenced defendant pursuant to the terms of the plea

agreement – 16 months in state prison, doubled per the strike prior, for a total of 32

months. Defendant received 212 days in presentencing custody credits. The trial court

also imposed various fines and fees.

       On April 1, 2014, defendant filed a timely notice of appeal challenging the

sentence or other matters occurring after the plea.

                                              II

                               STATEMENT OF FACTS

       As a factual basis for the plea, defendant made an oral statement admitting that on

November 26, 2013, he possessed a usable amount of methamphetamine. Defendant also

admitted that on October 30, 1986, he was convicted of the crime of burglary in the first

degree, which is considered a serious and violent felony.

                                              III

                                       ANALYSIS

       After 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, a summary of the facts, and potential arguable issues, and requesting this court

to undertake a review of the entire record.




                                              3
       We offered defendant an opportunity to file a personal supplemental brief, but he

has not done so. 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, as noted above, there is a discrepancy between the reporter’s transcript

and the felony plea form, from the minute order and abstract of judgment.

       As a general rule, the record will be harmonized when it is in conflict. (People v.

Smith (1983) 33 Cal.3d 596, 599.) “‘[A] discrepancy between the judgment as orally

pronounced and as entered in the minutes is presumably the result of clerical error.’”

(People v. Williams (1980) 103 Cal.App.3d 507, 517; see also In re Daoud (1976) 16

Cal.3d 879, 882, fn. 1 [trial court could properly correct a clerical error in a minute order

nunc pro tunc to conform to the oral order of that date if there was a discrepancy between

the two].)

       In this case, it is clear from the record that defendant pled guilty to count 2, a

violation of Health and Safety Code section 11377, subdivision (a), and the clerk made a

clerical error in entering count 1, instead of count 2, in the minute order. Thereafter, at a

later date, the same error was repeated in the abstract of judgment. Therefore, we shall

remand this case to the trial court to correct the minute order and abstract of judgment to

reflect that defendant was convicted of count 2 under Health and Safety Code section

11377, subdivision (a).




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                                            IV

                                     DISPOSITION

       This cause is remanded to the trial court. We hereby order the trial court to correct

the minute order dated March 10, 2014, and the abstract of judgment dated March 14,

2014, to reflect that defendant pled guilty to and was convicted of count 2, a violation of

Health and Safety Code section 11377, subdivision (a), and not count 1, a violation of

Penal Code section 459. The clerk of the court shall then forward the amended abstract

of judgment to the Department of Corrections. In all other respects the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RICHLI
                                                                                          J.

We concur:


McKINSTER
                Acting P. J.


CODRINGTON
                          J.




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