Filed 5/21/14 P. v. Kemp CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

JAMES DANIEL KEMP, JR., 

Defendant and Appellant. 

 H039800 

 (Monterey County 

 Super. Ct. No. SS080703) 

Defendant James Daniel Kemp, Jr. appeals from a judgment of conviction for 

assault with force likely to produce great bodily injury (former Pen. Code, § 245, 

subd. (a)(1)). On appeal, he contends that the abstract of judgment must be corrected 

because it mistakenly describes his conviction as assault with a deadly weapon. The 

Attorney General concedes that the abstract of judgment must be corrected. The 

Attorney General additionally asserts that the clerk’s minute order for the plea hearing 

should be corrected to describe defendant’s offense as assault with force likely to produce 

great bodily injury. As set forth below, we will order the abstract of judgment and the 

clerk’s minute order to be corrected to accurately describe defendant’s offense, and we 

will affirm the judgment in all other respects. 

PROCEDURAL HISTORY 
2 

 On March 5, 2008, the Monterey County District Attorney filed an information 

charging defendant with battery with serious bodily injury (Pen. Code, § 243, subd. (d); 

count 1) and assault by means of force likely to produce great bodily injury or with a 

deadly weapon (former Pen. Code, § 245, subd. (a)(1); count 2). As to the assault charge, 

the information alleged that defendant personally inflicted great bodily injury (Pen. Code, 

§ 12022.7, subd. (a)). 

 At the plea hearing on April 3, 2008, defendant expressed his intent to plead no 

contest to “assault with force likely to produce great bodily injury.” After advising 

defendant of his rights, the trial court asked defendant, “[H]ow do you plead to count 2, 

assault with force likely to produce great bodily injury, guilty or no contest?” Defendant 

responded, “No contest.” The clerk’s minute order for the plea hearing states that 

defendant pleaded no contest to count 2, but it describes count 2 as “Assault: Deadly 

Weapon Other Than Firearm.” 

 On May 29, 2008, the court suspended imposition of sentence and placed 

defendant on probation for three years with various terms and conditions. That same day, 

the battery charge and the great bodily injury enhancement were dismissed. 

 On June 5, 2009, the probation department filed a petition to revoke defendant’s 

probation, alleging that defendant had violated the terms of his probation. On 

June 18, 2013, the court revoked and terminated defendant’s probation, and it sentenced 

him to three years in prison. 

 The abstract of judgment states that defendant was convicted of violating Penal 

Code section 245, subdivision (a)(1) on April 3, 2008. The abstract of judgment 

describes the offense as “Assault: Deadly weapon.” 

 Defendant filed a timely notice of appeal. This appeal followed. 
3 

DISCUSSION1

 “Rendition of judgment is an oral pronouncement.” (People v. Samaniego (2009) 

172 Cal.App.4th 1148, 1183.) “Where there is a discrepancy between the oral 

pronouncement of judgment and the minute order or the abstract of judgment, the oral 

pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) 

 “ ‘It is not open to question that a court has the inherent power to correct clerical 

errors in its records so as to make these records reflect the true facts.’ ” (People v. 

Mitchell (2001) 26 Cal.4th 181, 185.) Courts “may correct clerical errors at any time.” 

(Ibid.) An appellate court may correct clerical errors “ ‘on its own motion or upon the 

application of the parties.’ ” (Id. at pp. 186-187.) 

 Here, the trial court asked defendant to enter a plea to the crime of “assault with 

force likely to produce great bodily injury.” In response, defendant stated that he pleaded 

no contest to that crime. This oral plea controls over the abstract of judgment and the 

clerk’s minute order for the plea hearing, which incorrectly describe defendant’s offense 

as assault with a deadly weapon. We will order the abstract of judgment and the clerk’s 

minute order to be corrected to accurately describe defendant’s conviction as assault with 

force likely to produce great bodily injury. 

DISPOSITION

The trial court is directed to amend the clerk’s minute order of April 3, 2008 to 

omit the reference to count 2 as “Assault: Deadly Weapon Other than Firearm” and to 

specify that defendant pleaded no contest to assault with force likely to produce great 

bodily injury. The trial court is further directed to prepare an amended abstract of 

judgment that describes defendant’s conviction as assault with force likely to produce 

 1

 The facts underlying defendant’s conviction and probation revocation are 

irrelevant to our resolution of the issues presented on appeal. We therefore will not 

summarize those facts. 
4 

great bodily injury and to send a copy of the amended abstract of judgment to the 

Department of Corrections and Rehabilitation. In all other respects, the judgment is 

affirmed. 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

____________________________________ 

PREMO, J. 

____________________________________ 

MÁRQUEZ, J.