THE PEOPLE v. CLARENCE DEMETRIUS TATE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant, Clarence Demetrius Tate, seeks to correct clerical errors in the record of his conviction for torture and child abuse, with a great bodily injury finding (Pen.Code, §§ 206, 273a, 12022.7).¹  Tate was sentenced to state prison for life with the possibility of parole.   He contends there are errors in the abstract of judgment and in a nunc pro tunc minute order.

The judgment is affirmed;  the case is remanded to the trial court for correction of clerical errors in the record.

BACKGROUND

1. Background.

There followed nunc pro tunc minute orders on September 21, 1999, and February 2, 2010, purporting to make corrections in the clerk's transcript in order to accurately reflect Tate's sentence.   The 2010 nunc pro tunc order records Tate's sentence as follows:  a life term on count 1, a stayed nine-year term on count 2, and a stayed four-year upper term on count 4.

2. Discussion.

Tate contends the 2010 nunc pro tunc minute order erroneously reflects a stayed four-year term on count 4 because the trial court actually imposed, and then stayed, a consecutive 16–month term on count 4. As the Attorney General properly acknowledges, Tate is correct.

The reporter's transcript of the September 10, 1999, sentencing hearing clearly shows the trial court imposed a consecutive 16–month term on count 4, and then stayed that term under section 654.³  The “record of the oral pronouncement of the court controls over the clerk's minute order” (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2), and “a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.”  (People v. Mesa (1975) 14 Cal.3d 466, 471.)   This error in the minutes is also reflected in the abstract of judgment.   It is appropriate for us to now correct these errors.  (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment is not judgment of conviction and does not control if different from trial courts oral judgment;  it is proper and important to correct such errors in abstracts of judgment];  In re Candelario (1970) 3 Cal.3d 702, 705 [“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts․  The court may correct such errors on its own motion or upon the application of the parties.”].)

We will, therefore, direct the trial court to correct the minute order of February 2, 2010, and the abstract of judgment of February 5, 2010, to accurately reflect the sentence imposed on Tate.

DISPOSITION

The judgment is affirmed.   The case is remanded to the trial court to amend the clerk's transcript as described above.   The trial court is also directed to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise specified..  FN1. All further statutory references are to the Penal Code unless otherwise specified.

FN2. Because the only issue on appeal involves errors in the clerk's transcript, we do not recount the underlying facts of Tate's offense..  FN2. Because the only issue on appeal involves errors in the clerk's transcript, we do not recount the underlying facts of Tate's offense.

FN3. The consecutive nine-year term on count 2 was also stayed pursuant to section 654..  FN3. The consecutive nine-year term on count 2 was also stayed pursuant to section 654.

CROSKEY, J. ALDRICH, J.