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Filed 8/23/16 P. v. Roots-Scott 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALD ROOTS-SCOTT,

Defendant and Appellant.

C079443

(Super. Ct. No. 15F02103)

An amended complaint charged defendant Donald Roots-Scott with, among other 

things, felony carrying a concealed firearm (Pen. Code, § 25400, subd. (a)(1) -- count 

two) and misdemeanor possession of concentrated cannabis (Health & Saf. Code, 

§ 11357, subd. (a) -- count four). On May 27, 2015, the prosecutor sought further 

amendment of count four to replace Health and Safety Code section 11357, 
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subdivision (a) with Health and Safety Code section 11357, subdivision (c). The trial 

court said the correction had already been made on the court’s copy. The prosecutor 

added that instead of “concentrated cannabis” count four should say “less than 28 grams 

of marijuana” There was no objection, the trial court said it would make that 

amendment, and it read the amended count four into the record, indicating that count 

four charged defendant with a misdemeanor violation of Health and Safety Code 

section 11357, subdivision (c), in that he unlawfully possessed less than 28 grams of 

marijuana.

At the same hearing, defendant pleaded no contest to counts two and four. The 

factual basis for the plea was as follows: On April 4, 2015, defendant was contacted by 

law enforcement officers and found to be in possession of a loaded .40-caliber Taurus 

semiautomatic firearm. The firearm was concealed in a vehicle of which defendant was 

not the registered owner. The parties stipulated that, on the same day, defendant also 

committed a misdemeanor by possessing “less than 28 grams of marijuana” in violation 

of Health and Safety Code, section “11357(c).” The trial court suspended imposition of 

sentence and placed defendant on formal probation for five years with 90 days in county 

jail, minus credit for time served.

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On December 10, 2015, this court granted defendant’s application to file a late 

request for certificate of probable cause in the trial court. Defendant filed, and the trial 

court granted, a request for certificate of probable cause.

Defendant now points out that Health and Safety Code section 11357, 

subdivision (c) applies to misdemeanor possession of more than 28.5 grams of marijuana, 

but defendant pleaded no contest to possessing less than 28 grams, which is an infraction 

under Health and Safety Code section 11357, subdivision (b). Accordingly, he contends 

 

1 The appellate record contains only four of the five pages listing the conditions of 

probation, omitting page 3.
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(1) in order to provide him with the benefit of his plea, his count four conviction should 

be modified to constitute a conviction under Health and Safety Code section 11357, 

subdivision (b), or (2) in the alternative, his misdemeanor conviction under Health and 

Safety Code section 11357, subdivision (c) should be modified because it was the result 

of ineffective assistance of counsel.

We conclude the references to Health and Safety Code section 11357, 

subdivision (c) constituted inadvertent clerical errors inconsistent with defendant’s plea 

to possession of less than 28 grams of marijuana. Accordingly, we will affirm the 

judgment and direct the trial court to correct the court’s records in this case to reflect 

that defendant was convicted on count four of violating Health and Safety Code 

section 11357, subdivision (b), an infraction.

DISCUSSION

Defendant contends that in order to provide him with the benefit of his plea, his 

count four conviction should be modified to constitute a conviction under Health and 

Safety Code section 11357, subdivision (b). The People agree, and we do too. 

Accordingly, we need not address defendant’s alternative contention that his conviction 

should be modified because it was the result of ineffective assistance of counsel.

Health and Safety Code section 11357, subdivision (b) provides: “Except as 

authorized by law, every person who possesses not more than 28.5 grams of marijuana, 

other than concentrated cannabis, is guilty of an infraction punishable by a fine of not 

more than one hundred dollars ($100).” Subdivision (c) of that section provides: 

“Except as authorized by law, every person who possesses more than 28.5 grams of 

marijuana, other than concentrated cannabis, shall be punished by imprisonment in a 

county jail for a period of not more than six months or by a fine of not more than five 

hundred dollars ($500), or by both such fine and imprisonment.”

As a general rule, a record that is in conflict will be harmonized if possible. 

(People v. Smith (1983) 33 Cal.3d 596, 599.) If it cannot be harmonized, whether one 
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portion of the record should prevail as against contrary statements in another portion of 

the record will depend on the circumstances of each particular case. (Ibid.) But 

“reasonable doubts in determining the identity of the offense charged are to be resolved 

in the defendant’s favor.” (People v. Schueren (1973) 10 Cal.3d 553, 558.)

“A trial court may correct a clerical error, but not a judicial error, at any time. A 

clerical error is one that is made in recording the judgment; a judicial error is one that is 

made in rendering the judgment. [Citations.]” (People v. Turrin (2009) 176 Cal.App.4th 

1200, 1205; accord, Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 

1228, 1238; In re Candelario (1970) 3 Cal.3d 702, 705.) Clerical errors include

“inadvertent errors made by the court ‘which cannot reasonably be attributed to the 

exercise of judicial consideration or discretion.’ ” (Conservatorship of Tobias (1989) 

208 Cal.App.3d 1031, 1034; Bowden v. Green (1982) 128 Cal.App.3d 65, 71.) In 

contrast, “judicial error is the deliberate result of judicial reasoning and determination.”

(Conservatorship of Tobias, at p. 1035.) “ ‘The test is simply whether the challenged 

judgment was made or entered inadvertently (clerical error) or advertently (judicial 

error).’ ” (Bowden, at p. 71.)

Here, it is clear from the record that the references to Health and Safety Code

section 11357, subdivision (c) were inadvertent errors “ ‘which cannot reasonably be 

attributed to the exercise of judicial consideration or discretion.’ ” (Conservatorship of 

Tobias, supra, 208 Cal.App.3d at p. 1034.) Notwithstanding the repeated erroneous 

references to Health and Safety Code section 11357, subdivision (c), a misdemeanor, 

everyone involved -- defendant, counsel, and the trial court -- acknowledged and 

understood that defendant was charged with, pleaded to, and was convicted of, being 

in possession of less than 28 grams of marijuana. That crime is codified in Health 

and Safety Code section 11357, subdivision (b), not subdivision (c).

Accordingly, the inadvertent references to subdivision (c) constitute clerical 

errors. We will direct the trial court to correct the court’s records in this case to reflect 
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that defendant was convicted on count four of violating Health and Safety Code 

section 11357, subdivision (b).

DISPOSITION

The judgment is affirmed. The trial court is directed to correct its records, 

including its May 27, 2015 minute order, to reflect that defendant was convicted 

on count four of violating Health and Safety Code section 11357, subdivision (b), 

an infraction.

 /S/

MAURO, J.

We concur:

 /S/

HULL, Acting P. J.

 /S/

MURRAY, J.