P. v. Gaitan

















Filed 1/14/13 P.
v. Gaitan CA5

















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



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>THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

FIFTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. ARNULFO NUNEZ GAITAN, Defendant and Appellant.

F063640 (Super. Ct. No. VCF205256) >OPINION

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County. Gerald F.
Sevier, Judge.

Francisco
Valentin Cortés, under appointment by the Court of Appeal, for Defendant and
Appellant.

Office
of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appellant,
Arnulfo Nunez Gaitan, appeals from an order by the trial court denying his
motion for two-for-two presentence custody credit pursuant to the version of
Penal Code section 4019href="#_ftn2"
name="_ftnref2" title="">^[1] in effect when he filed the
motion. We will find that the court
order denying his motion was not an appealable order and dismiss Gaitan’s
appeal.

FACTUAL AND PROCEDURAL HISTORY

On
August 25,
2008, in exchange for a stipulated term of
seven years, Gaitan pled no contest to sale
of methamphetamine (count 3/Health & Saf. Code, § 11379, subd.
(a)), transportation of methamphetamine (count 4/Health & Saf. Code,
§ 11379, subd. (a)), transportation of cocaine (count 6/Health & Saf.
Code, § 11352, subd. (a)), and two counts each of possession for sale of
methamphetamine (counts 5 & 8/Health & Saf. Code, § 11378),
possession for sale of cocaine (counts 7 & 11/Health & Saf. Code,
§ 11351), and child abuse (counts 9 & 10/§ 273a, subd. (a)). Gaitan also admitted a weight enhancement
(§ 1203.073) and an arming enhancement (§ 12022, subd. (c)) in count
8.

On
September 23, 2008, the trial court sentenced Gaitan to an aggregate
seven-year term: the middle term of two
years on his possession of methamphetamine conviction in count 8, a four-year
arming enhancement in that count, a consecutive one-year term on count 3
(one-third the middle term of three years), and concurrent terms on the
remaining counts.

Appellant’s
original abstract of judgment erroneously indicated that appellant was
sentenced to an aggregate six-year term, that he received a concurrent, rather
than a consecutive term on count 3, and that the court imposed a concurrent
two-year term, rather than a concurrent four-year term. On July 12, 2011, the trial court issued an amended abstract of judgment and an
amended minute order for Gaitan’s
sentencing hearing that corrected these errors.

On
August 22,
2011, Gaitan filed a motion requesting the
court to modify his abstract of judgment and the minute order of his sentencing
hearing to reflect a sentence of six years.
Gaitan also requested that the court grant him two-for-two presentence
conduct credit pursuant to the version of section 4019 then in effect (Stats.
2011, ch. 15, § 482, eff. Apr. 4, 2011). In his moving papers, Gaitan contended that
his conviction was not yet final because the court modified his sentence when
it issued the corrected abstract of judgment and minute order. Therefore, argued Gaitan, he was entitled to
the more generous presentence conduct credit provided by the version of section
4019 then in effect rather that the four-for-six conduct credit provided by the
version of section 4019 (Stats. 1982, ch. 1234, § 7, p. 4553) in effect
when he was originally sentenced.href="#_ftn3" name="_ftnref3" title="">^[2]

On
September 7, 2011, the court denied Gaitan’s motion. In its ruling, however, the court did not
specifically address Gaitan’s request for two-for-two presentence conduct
credit.

On
September 21, 2011, Gaitan filed a motion requesting the court to address
his request for two-for-two presentence conduct credit and for it to issue a
corrected abstract of judgment.

On
September 27, 2011, the court denied Gaitan’s motion.

On
October 13, 2011, Gaitan filed a notice of appeal.

On March 20,
2012, Gaitan’s appellate counsel filed an opening brief which summarizes the
facts, with citations to the record, raises no issues, and asks this court to
independently review the record. (>People v. Wende (1979) 25 Cal.3d 436.)

DISCUSSION

“A
trial court has inherent power to correct clerical errors in its records so as
to make these records reflect the true facts. name="SDU_452"> name="citeas((Cite_as:_19_Cal.App.4th_449,_*45">[Citation.] The court may correct these errors on its own
motion or upon the application of the parties.
[Citation.]… [I]f the minutes or
abstract of judgment fails to reflect the judgment pronounced by the court, the
error is clerical and the record can be corrected at any time to make it
reflect the true facts.
[Citation.]” (>People
v. Little (1993) 19
Cal.App.4th 449, 451-452.) Thus, the
trial court here acted within its jurisdiction when it issued an amended
abstract of judgment and a corrected minute order on July 12, 2011, that
accurately reflected the judgment that it imposed on September 23, 2008.

Section
1237 provides:

“An appeal may be taken by the defendant: [¶] (a) From a final judgment of
conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or
the commitment of a defendant for insanity, the indeterminate commitment of a
defendant as a mentally disordered sex offender, or the commitment of a
defendant for controlled substance addiction shall be deemed to be a final
judgment within the meaning of this section.
Upon appeal from a final judgment the court may review any order denying
a motion for a new trial. [¶] (b)
From any order made after judgment, affecting the substantial rights of the
party.”

The
trial court, here, did not modify appellant’s sentence when it corrected the
clerical errors in Gaitan’s abstract of judgment and the minute order of
appellant’s September 23, 2008, sentencing hearing. Thus, Gaitan was not entitled to a
recalculation of his presentence conduct credit in accord with the version of
section 4019 in effect at the time on the theory that his conviction had not
become final because the court modified his sentence.

Further,
the court’s order denying Gaitan the additional presentence conduct credit he
sought did not come within the ambit of section 1237, subdivision (a). Moreover, since Gaitan did not have a legal
basis for filing the motion to modify his award of presentence conduct credit,
the order denying Gaitan’s motion did not come within the ambit of section
1237, subdivision (b) either because it did not affect Gaitan’s substantial
rights. Consequently, we will dismiss
Gaitan’s appeal because the order he appeals from is not an appealable
order. (People v. Mendez (2012) 209 Cal.App.4th 32, 34.)

DISPOSITION

The
appeal is dismissed.