California Court of Appeal Jan 7, 2016 No. E063744Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.
4
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.)
5
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.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence while directing the trial court to correct a clerical error by formally dismissing the remaining count and strike allegations as agreed upon in the plea bargain.
Issues
Whether the defendant waived his right to appeal the renewed motion to suppress
Whether the entry into the residence violated the Fourth Amendment
Whether the search of the garage violated the Fourth Amendment
Whether there was consent to search the defendant's cell phone
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We direct the court to dismiss count 1 and three strike allegations. Otherwise, we affirm.”
“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.”