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The People v. David Michael Mayer

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)


August 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID MICHAEL MAYER, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 10F3456, 08F6664, 10F2827, 10F3391, 09F8369)

The opinion of the court was delivered by: Raye , P. J.

P. v. Mayer

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Briefly, defendant David Michael Mayer entered pleas in two cases, was granted probation, and then violated probation. Three more cases were filed. Defendant entered pleas in two of the three cases and the third case was dismissed. The court sentenced defendant to state prison. We requested supplemental briefing because the record reflected that the wrong case was dismissed. The parties agree. We will correct the judgment accordingly.

On July 22, 2008, officers searched defendant's home pursuant to a warrant and found 27.5 grams of methamphetamine. In case No. 08F6664, defendant entered a plea of guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a strike prior (1992 assault with intent to rape (Pen. Code, § 220)).

On August 21, 2009, defendant failed to appear in court as ordered. In case No. 09F8369, defendant entered a plea of guilty to failure to appear (in case No. 08F6664) (Pen. Code, § 1320, subd. (b)) and admitted an on-bail enhancement allegation (Pen. Code, § 12022.1).

The court suspended imposition of sentence in both cases and granted Proposition 36 probation in case No. 08F6664 and probation in case No. 09F8369.

On March 16, 2010, Shasta Interagency Narcotics Task Force (SINTF) agents conducted a consent/probation search of defendant in the parking area of a gas station near his car and found 36 grams of methamphetamine, a digital scale, and a syringe/needle. Case No. 10F2827 charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378 -- count 1), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) -- count 2), and possession of a hypodermic needle/syringe (Bus. & Prof. Code, § 4140 -- count 3). A strike prior was also alleged. (Pen. Code, § 1170.12.)

On April 18, 2010, a Redding Police officer made a traffic stop on a car driven by defendant, and a consent/probation search of defendant revealed 19 grams of methamphetamine and digital scales. Case No. 10F3391 charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378 -- count 1) and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) -- count 2). A strike prior (Pen. Code, § 1170.12) and an on-bail enhancement (Pen. Code, § 12022.1) were alleged.

On May 4, 2010, SINTF agents obtained a warrant for defendant, his residence, and his vehicle. When the agents attempted to stop defendant in his vehicle, he fled to his residence, throwing at least two syringes out the window. When he got out of his vehicle he had an alcoholic beverage in his hand. He failed to comply with all of the SINTF agents' orders. The agents searched defendant, his home, and his car pursuant to the warrant and found about 13 grams of methamphetamine, a digital scale, and two syringes. Case No. 10F3456 charged defendant with possession of methamphetamine for sale (Health & Saf. Code, § 11378 -- count 1), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a) -- count 2), possession of drug paraphernalia (Health & Saf. Code, § 11364 -- count 3), misdemeanor evading an officer (Veh. Code, § 2800.2 -- count 4), misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1) -- count 5), and possession of an open container while driving, an infraction (Veh. Code, § 23222, subd. (a) -- count 6). A strike prior (Pen. Code, § 1170.12) and two on-bail enhancements (Pen. Code, § 12022.1) were also alleged.

Defendant admitted violating probation in the 2008 and 2009 cases and entered a plea in two of the three 2010 cases; the third 2010 case was dismissed. Defendant's plea form reflects the following: in case No. 08F6664, defendant admitted violating probation; in case No. 09F8369, defendant admitted violating probation; in case No. 10F2827, defendant pled no contest to possession of methamphetamine for sale and admitted a strike prior; and in case No. 10F3456, defendant pled no contest to possession of methamphetamine for sale and admitted a strike prior. Defendant entered his pleas and admissions in exchange for dismissal of case No. 10F3391.

At the entry of plea hearing, the trial court recited the plea agreement in accordance with defendant's written plea form. The prosecutor stated that a factual basis for case No. 10F3456 was reflected in "SINTF report SH1079," and for case No. 10F2827 in "SINTF report SH1059." Defendant orally entered his plea in accordance with his written plea form, including case No. 10F2827. The trial court then erroneously dismissed case No. 10F2827 rather than case No. 10F3391 with no objection from either party.

The minutes erroneously reflect that defendant pled no contest to possession of methamphetamine for sale (count 1) and admitted a strike prior in case No. 10F3391 rather than case No. 10F2827.

Immediately after defendant entered his plea, the court sentenced defendant to state prison for an aggregate term of 11 years four months as follows: in case No. 10F3456, six years (the upper term of three years, doubled for the strike prior); in case No. 10F3391, 16 months (one-third the midterm or eight months, doubled for the strike prior); in case No. 08F6664, 16 months (one-third the midterm, or eight months, doubled for the strike prior); and in case No. 09F8369, two years eight months (two years for the on-bail enhancement and one-third the midterm, or eight months, for failure to appear). The sentencing minutes and the abstract of judgment reflect that defendant was sentenced in case No. 10F3391 rather than in case No. 10F2827.

Defendant filed a notice of appeal, listing case Nos. 08F6664, 09F8369, 10F2827, 10F3391, and 10F3456.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

Although recognizing that defendant's written plea form and the court's initial recitation of the plea at the entry of plea hearing reflected that defendant entered a plea in case No. 10F2827 rather than in case No. 10F3391, defense appellate counsel stated in defendant's Wende brief that "review of the entire record indicates that the plea is actually to case 10F3391 . . . ." Because we questioned counsel's representation, we requested supplemental briefing, asking the parties to discuss whether the record reflects that defendant entered a plea in case No. 10F2827 rather than in case No. 10F3391, and as a result, we confirmed the trial court's error in citing to case No. 10F3391. Defendant (now) agrees, as do the People, that the record reflects that defendant entered a plea in case No. 10F2827, not case No. 10F3391; the parties request that the abstract of judgment be corrected. We will order the abstract of judgment corrected.

"It is well established that a sentence which is the result of clerical error (in the sense of inadvertence, although committed by the judge) may be corrected at any time, by the trial court or the reviewing court . . . ." (People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 (Menius).)

Based on defendant's written plea form, the trial court's initial recitation of defendant's plea, and the prosecutor's factual basis for the plea, defendant entered a plea to possession of methamphetamine for sale (count 1) and admitted a strike prior in case No. 10F2827, among other pleas and admissions, with the understanding that case No. 10F3391 would be dismissed. No remand is required here because the trial court simply misspoke by mixing up the case numbers. (See Menius, supra, 25 Cal.App.4th at pp. 1293-1295.)

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The minutes and abstract of judgment are ordered to be corrected to reflect that defendant entered a plea of no contest to possession of methamphetamine for sale (count 1) and admitted a strike prior in case No. 10F2827, that he was sentenced for the offense and strike prior in case No. 10F2827, and that case No. 10F3391 was dismissed. There is no change in the sentence, only in the trial court case number. The trial court is directed to prepare corrected minutes and a corrected abstract of judgment accordingly and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.

We concur: BUTZ , J. MAURO , J.

20110810

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