California Court of Appeal Jan 26, 2015 No. E060772Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
1
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
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.
2
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.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court's inadvertent verbal mistake regarding the status of a pending count was corrected by the minute order, which accurately reflected the court's and parties' intent to dismiss the remaining charge.
Issues
Whether the trial court's verbal error in failing to dismiss a count during a plea hearing constitutes a judicial error requiring remand or a clerical error correctable by the minute order.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We agree with the People that the court’s inadvertent mistake was corrected.”
“The minute order, however, rectified this inadvertence and correctly noted the dismissal of count 1 and striking of the enhancement.”
“We find that the minute order correctly rectified the inadvertent mistake made by the court.”