Filed 5/21/14 P. v. Kemp CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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. app eals 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 th e abstract of judgment must be corrected because it mistakenly describes his convictio n as assault with a deadly weapon. The Attorney General concedes th at the abstract of judgment must be corrected. The Attorney General additionally asserts that th e 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 accu rately describe defenda nt’s offense, and we will affirm the judgment in all other respects.

P ROCEDURAL H ISTORY2 On March 5, 2008, the Mont erey County District Atto rney filed an information charging defendant with battery with serious bodily injury (Pen. Co de, § 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 persona lly inflicted great bod ily injury (Pen. Code, § 12022.7, subd. (a)). At the plea hearing on Apr il 3, 2008, defendant expre ssed his intent to plead no contest to “assault with force likely to pro duce 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 bod ily injury, guilty or no contest?” Defendant responded, “No contest.” The clerk’s minut e 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 suspende d imposition of sentence and placed defendant on probation for three years with va rious terms and conditions. That same day, the battery charge and the great bodily injury enhancement were dismissed. On June 5, 2009, the probation departme nt filed a petition to revoke defendant’s probation, alleging that defe ndant had violated the term s of his probation. On June 18, 2013, the court revoked and terminat ed 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 Apr il 3, 2008. The abstract of judgment
describes the offense as “Assa ult: Deadly weapon.” Defendant filed a timely notice of a ppeal. This appeal followed.3 D ISCUSSION 1 “Rendition of judgment is an oral pronouncement.” ( People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183.) “Where th ere is a discrepancy between the oral pronouncement of judgment and the minute orde r 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 refl ect 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 en ter a plea to the crime of “assault with force likely to produce great bodily injury.” In response, defe ndant stated that he pleaded no contest to that crime. This oral plea c ontrols over the abstract of judgment and the clerk’s minute order for the plea hearing, wh ich incorrectly describe defendant’s offense as assault with a deadly weapon. We will or der the abstract of judgment and the clerk’s minute order to be corrected to accurately desc ribe defendant’s conviction as assault with force likely to produce gr eat bodily injury.
D ISPOSITION 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: D eadly Weapon Other th an Firearm” and to specify that defendant pleaded no contest to assault with force likely to produce great bodily injury. The trial court is further di rected to prepare an amended abstract of judgment that describes defendant’s convic tion as assault with force likely to produce

1 The facts underlying defendant’s co nviction 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 se nd 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.