People v. Mulz CA4/2

Filed 5/12/16 P. v. Mulz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E064596
v. (Super.Ct.No. FVI1302679)
ANTHONY RICHARD MULZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed with directions.
Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Anthony Richard Mulz was charged by felony complaint
with first degree residential burglary (Pen. Code, § 459, count 1), the unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a), count 2), and receiving stolen
property (Pen. Code, § 496d, subd. (a), count 3). It was also alleged that he had one prior
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strike conviction. (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)).) Defense
counsel declared a doubt as to defendant’s competency, so the trial court suspended
proceedings and referred the matter out for a mental health evaluation. A medical report
was submitted finding defendant incompetent. The People requested a second doctor to
examine defendant, and the court granted the request. A second report was submitted
finding defendant incompetent, and the parties set the matter for a competency trial. The
matter was continued numerous times. Defense counsel requested defendant to be
reevaluated. A medical report was submitted finding defendant competent to stand trial.
Criminal proceedings were then reinstated. Pursuant to a plea agreement, defendant pled
no contest to the lesser included offense of attempted residential burglary (Pen. Code,
§§ 664, 459) and admitted the prior strike conviction. In accordance with the plea
agreement, the court sentenced him to the middle term of two years in state prison,
doubled pursuant to the strike conviction. The court also awarded 1460 days of
presentence custody credits. The court released defendant and ordered him to report
directly to parole.
Defendant filed a timely notice of appeal, challenging the validity of the plea. He
requested a certificate of probable cause, which the court granted. We direct the superior
court to dismiss counts 2 and 3. Otherwise, we affirm.
PROCEDURAL BACKGROUND
Defendant pled no contest to one count of attempted first degree residential
burglary. (Pen. Code, §§ 664, 459.)
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DISCUSSION
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 no potential arguable issues. Counsel has also requested this court to
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
conducted an independent review of the record and find no arguable issues.
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. [Citations.]” (In re Candelario
(1970) 3 Cal.3d 702, 705.)
In this case, the court neglected to dismiss counts 2 and 3. The plea agreement
stated that defendant would plead no contest to a lesser included offense of count 1 and
admit the prior strike conviction, in exchange for a four-year term in state prison, minus
custody credits, and the dismissal of the remaining allegations. Defendant pled no
contest to a lesser included offense of count 1, but the court did not dismiss counts 2 and
3. Neither party mentioned the court’s failure to dismiss the counts below or on appeal.
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There is no reference to counts 2 and 3 in the abstract of judgment. Thus, the record
indicates that the parties intended those counts to be dismissed. It is evident the court’s
failure to order the dismissals was inadvertent. Accordingly, in the interest of clarity, we
will direct the trial court to dismiss counts 2 and 3 and to generate a new minute order
reflecting the dismissals.
DISPOSITION
The trial court is directed to order the dismissal of counts 2 and 3, and the superior
court clerk is directed to generate a new minute order reflecting those dismissals. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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