P. v. Hornbreak
Filed 9/26/11 P. v. Hornbreak 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. BARNUM ANTHONY HORNBEAK, Defendant and Appellant. | E052265 (Super.Ct.No. FSB059055) OPINION |
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed with directions.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Peter Quon, Jr., Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Barnum Anthony Hornbeak was charged by information with first degree murder. (Pen. Code, § 187, subd. (a), count 1).[1] It was also alleged that defendant personally and intentionally discharged a firearm. (§ 12022.53, subds. (b), (c), (d).) Defendant entered into a plea agreement and pled guilty to second degree murder. He also admitted that he personally used a firearm. (§ 12022.53, subd. (b).) The trial court sentenced defendant to state prison for 15 years to life on the murder count and 10 years on the firearm enhancement, pursuant to the terms of the plea agreement.
Defendant filed a notice of appeal, indicating that the appeal was “based on the sentence or other matters occurring after the plea.” He filed a request for a certificate of probable cause, which claimed that he was not properly advised of his rights, he was under the influence of medication, and he did not understand the consequences of the plea. The trial court denied the request for a certificate of probable cause. We affirm with a modification.
FACTUAL AND PROCEDURAL BACKGROUND
The following brief statement of facts is taken from the preliminary hearing transcript, since the parties stipulated that it provided a factual basis for the plea: The victim was having a celebration at her house with some monks, who were there to bless the house. There was a gathering of people, and the victim collected money to give to the monks. Defendant walked up to the victim and asked for some of the money. The victim did not pay attention to him. Defendant walked outside, returned with a gun, walked up to the victim, pointed the gun to the back of her head, and shot her. Defendant then called 911 and said he had shot his wife in the head.
Defendant entered into a plea agreement. Before the trial court took his plea, it asked defendant if he had had enough time to review the plea form with counsel and if he understood everything on the form. Defendant answered yes. The trial court then advised defendant that by pleading guilty, he was giving up his right to a jury trial, right to counsel, right to remain silent, right to testify on his own behalf or to call witnesses to testify on his behalf, and his right of confrontation. Defendant said he understood those rights and that he was waiving them. The trial court went over the agreed upon sentence with defendant.
The trial court also asked defendant if anyone had made any promises or threats to get him to plead guilty. He answered no. The trial court asked if he was under the influence of medication. Defendant again answered no. Defendant then pled guilty to second degree murder and admitted that he personally used a firearm in committing the offense. The trial court found that the plea was knowing and voluntary.
At the outset of the sentencing hearing, defendant informed the trial court that he wanted to withdraw his plea. Defendant told the trial court that he thought he would “do better” at a trial. The trial court continued the matter for two weeks to permit defendant to confer with counsel. Defendant then said he wanted to claim ineffective assistance of counsel (IAC), and that he was on medication at the time of the plea. The trial court construed the matter as a request for a Marsden[2] hearing. The trial court held a Marsden hearing, and denied the Marsden motion.
At the continued sentencing hearing, defense counsel explained to the trial court that he did not bring a formal motion to withdraw the plea because he did not believe there were any valid grounds for doing so. The trial court proceeded to sentence defendant according to the plea agreement. The trial court denied him conduct credits under section 2933.2.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel 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 two potential arguable issues: (1) whether the record indicates that defendant was advised of his constitutional rights and the consequences of his plea and whether he waived those rights; and (2) whether the record demonstrates IAC.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Following our independent review of the record, we found one arguable issue. Thus, we vacated our submission of this cause and asked the parties to provide this court with informal letter briefs, which they have done. We now address the merits of the issue.
The record does not show any disposition on the allegations made under section 12022.53, subdivisions (c) and (d). There was no mention of these enhancement allegations in the plea agreement, and the trial court did not dismiss these allegations in its oral pronouncement at the sentencing hearing. Notwithstanding the oral pronouncement of judgment, the minute order states that the allegations under section 12022.53, subdivisions (c) and (d), were ordered stricken, on motion of the People.
The parties filed supplemental briefs to address whether the allegations should be dismissed. Both parties agreed that the record supports a finding that the parties intended the enhancement allegations to be dismissed as part of the plea agreement. We agree.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.) The goal of contractual interpretation is to give effect to the mutual intention of the parties. (Ibid.) “‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (Ibid.)
Here, paragraph 3 of the plea agreement stated that defendant desired to plead guilty to count 1 and to use of a firearm under section 12022.53, subdivision (b). It did not state that he wanted to admit the allegations under section 12022.53, subdivisions (c) and (d). Moreover, there was no reference by the parties or the trial court to those two allegations at the change of plea hearing/sentencing hearing. Finally, defendant was sentenced to 10 years on the section 12022.53, subdivision (b), enhancement and 15 years to life on count 1, as agreed under the plea bargain. He was not sentenced on the enhancements under section 12022.53, subdivisions (c) and (d). Thus, the record supports an implied finding that the parties intended the allegations under section 12022.53, subdivisions (c) and (d), to be dismissed. It appears to have been an inadvertent clerical error that they were not dismissed.
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.) 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.) Accordingly, we will modify the judgment to dismiss the enhancement allegations under section 12022.53, subdivisions (c) and (d).[3] We will also direct the superior court clerk to generate a new minute order reflecting this dismissal.
DISPOSITION
The judgment is modified to dismiss the allegations under section 12022.53, subdivisions (c) and (d). The superior court clerk is directed to generate a new minute order reflecting this dismissal. The clerk is further directed to forward a copy of the new minute order to the Department of Corrections and Rehabilitation. 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.
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[3] We note the People’s assertion that the matter must be remanded for correction, since the trial court’s error in failing to orally dismiss the enhancement allegations cannot be characterized as clerical error. However, the rule “allowing correction of clerical error, whether made by the clerk, counsel, or the court itself, is to be distinguished from the situation involving judicial error, which can only be corrected by appropriate statutory procedure. [Citations.] The distinction between clerical error and judicial error is that the former is inadvertently made while the latter is made advertently as the result of the exercise of judgment. [Citations.]” (People v. Schultz (1965) 238 Cal.App.2d 804, 808; italics added.) The distinction does not “depend so much on the person making it as it does on whether it was the deliberate result of judicial reasoning and determination.” (People v. Anderson (1976) 59 Cal.App.3d 831, 839, italics added.) Here, as the People agree, the trial court’s error was inadvertent. Thus, it can be characterized as clerical error.
