Filed 1/7/16 P. v. Funderburk 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063744

v.                                                                       (Super.Ct.No. FVI1401507)

DARRYL WESLEY FUNDERBURK,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Debra Harris,

Judge. Affirmed.

         Kenneth J. Sargoy, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Pursuant to a plea agreement, defendant and appellant Darryl Wesley Funderburk

pled no contest to attempted taking or driving of a vehicle without the owner’s

permission (Veh. Code, §§ 664/10851, subd. (a), count 2) and admitted that he had one




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prior strike conviction (Pen. Code1, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). In

accordance with the plea agreement, a trial court sentenced him to eight months on count

2, doubled pursuant to the strike conviction, for a total term of 16 months in state prison.

       Defendant filed a timely notice of appeal, challenging the sentence or other

matters not affecting the validity of the plea, as well as the denial of a section 1538.5

motion to suppress evidence. We direct the court to dismiss count 1 and three strike

allegations. Otherwise, we affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On April 24, 2014, Officer Amir Awad went to 14240 Cholame Road in

Victorville, California to serve an arrest warrant for an individual named Stanley Allen.

Rosalie Barreras answered the officer’s knock on the door and confirmed that Allen lived

at that residence. Officer Awad asked where he was, and Barreras said she thought he

was inside the back room. Officer Awad asked if she would mind if he checked, and

Barreras stepped aside and led him to the back bedroom. The officer did not find Allen

in the back bedroom, but instead found defendant. Defendant identified himself as the

sole renter of the property. Since defendant was not the subject of the arrest warrant,

Officer Awad advised the other officers that were with him that Allen was possibly in the

backyard or somewhere else in the residence. One officer went to the backyard and came

across a trailer. He found Allen inside the trailer.


       1   All further statutory references will be to the Penal Code, unless otherwise indicated.

       2   The facts are taken from the preliminary hearing transcript.


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       Another officer went to check the garage and observed a disassembled truck with

a U-Haul label on it. The officer ran the vehicle identification number on the vehicle, and

the sheriff’s dispatcher confirmed that the vehicle had been reported stolen. At that point,

Officer Awad detained everyone in the residence to investigate and find out who was

responsible or had knowledge of the vehicle theft. One of the officers asked defendant if

he would sign a consent form to search the house, and defendant agreed. That officer

found defendant’s cell phone and asked him for the pass code. Defendant consented and

gave him the pass code to unlock the cell phone. The officer viewed the contents of

defendant’s cell phone and observed text messages that indicated the sales of vehicle

parts. Officer Awad then arrested defendant and gave him Miranda3 warnings.

Defendant agreed to speak to Officer Awad and eventually admitted that he knew the

vehicle was stolen. He said his friend Miguel brought the vehicle over to his house and

was going to sell the parts from the vehicle. A search of the residence did not yield any

evidence regarding an individual named Miguel. Officer Awad contacted the manager at

the U-Haul company in Hesperia, and the manager stated that the vehicle was stolen from

his location.

       On April 25, 2014, defendant was charged by felony complaint with receiving a

stolen vehicle. (§ 496d, subd. (a), count 1.) The complaint also alleged that he had four

prior strike convictions. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)




       3   Miranda v. Arizona (1966) 384 U.S. 436.


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       On September 11, 2014, defendant filed a motion to suppress the evidence,

pursuant to section 1538.5, subdivision (a)(1)(A)(i), arguing that he was unlawfully

detained. The People filed an opposition to the motion. The court held the preliminary

hearing and motion to suppress hearing concurrently. The court denied the motion and

held defendant to answer to all counts and allegations.

       On October 27, 2014, the People filed an information, which included the same

counts and allegations as the felony complaint. Defendant pled not guilty and denied all

allegations. He then filed a renewed motion to suppress evidence.

       On March 30, 2015, defendant filed a motion for sanctions and exclusion of

evidence, alleging that the prosecution destroyed pictures of the crime scene.

       Neither defendant’s renewed motion to suppress nor the motion for sanctions was

decided by the court because defendant entered a plea agreement on May 15, 2015. The

court interlineated a new count 2 for attempted taking or driving of a vehicle without the

owner’s permission. (Veh. Code, § 10851, subd. (a), count 2.) Defendant pled no contest

to count 2 and admitted one prior strike. In accordance with the agreement, the court

sentenced him to a total of 16 months in state prison, with 774 days of custody credits.

Because his credits exceeded his sentence, the court ordered defendant to be released

immediately to parole.

       Defendant filed a notice of appeal on May 29, 2015, in propria persona. On June

16, 2015, appellate counsel filed an amended notice of appeal, based on the sentence or

other matters not affecting the validity of the plea, as well as the denial of a motion to

suppress.


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                                        ANALYSIS

       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 a brief statement of the facts, and identifying a few potential arguable issues:

(1) whether defendant waived his right to appeal the renewed section 1538.5 motion to

suppress filed after the preliminary hearing; (2) whether “the entry of the deputies into

[defendant’s] residence violate[d] the Fourth Amendment’s proscription that execution of

an arrest warrant does not allow a general search”; (3) whether the search of the garage

violated the Fourth Amendment; (4) whether there was consent to search defendant’s cell

phone; and (5) whether defense counsel’s failure to have the renewed motion to suppress

evidence decided by the superior court constituted ineffective assistance of counsel.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has not done.

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues. However, although not raised by the

parties, we note an apparent clerical error. 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.” (In re Candelario (1970) 3 Cal.3d 702, 705.)




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       In this case, the court neglected to dismiss count 1 and the three remaining prior

strike allegations. The plea agreement stated that defendant would plead no contest to

count 2 and admit one prior strike, in exchange for a specified term and the dismissal of

the remaining counts and allegations. Defendant pled no contest to count 2, but the court

did not dismiss the remaining count and allegations. Nonetheless, the minute order states

that the court ordered count 1 dismissed, on motion of the People. Neither party

mentioned the court’s failure to dismiss the remaining count and allegations, below or on

appeal. Thus, the record indicates that the parties intended those allegations and count to

be dismissed. It is evident the court’s failure to order the dismissal was inadvertent.

Accordingly, in the interest of clarity, we will direct the trial court to dismiss count 1 and

the three prior strike allegations.

                                       DISPOSITION

       The trial court is directed to order the dismissal of count 1 and the remaining prior

strike allegations. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                           Acting P. J.
We concur:


KING
                            J.


MILLER
                            J.


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