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Filed 7/1/15 P. v. Neilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

KEVIN ANDREW NEILSON,

Defendant and Appellant.

E062877

(Super.Ct.No. FWV1303877)

OPINION

APPEAL from the Superior Court of San Bernardino County. Bridgid 

M. McCann, Judge. Affirmed with directions.

Christopher Love, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.
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Defendant and appellant Kevin Andrew Neilson was charged by felony complaint, 

in case No. FWV1303877 (hereinafter, 877), with driving under the influence of alcohol 

with a prior conviction (Veh. Code, §§ 23152, subd. (a), 23550, 23550.5, count 1), and 

driving while having a 0.08% blood-alcohol content with a prior conviction (Veh. Code, 

§§ 23152, subd. (b), 23550, 23550.5, count 2). It was also alleged that defendant had 

three prior driving under the influence convictions. In a separate case, case 

No. FMV1303094 (hereinafter, 094), defendant pled guilty to driving under the influence 

of alcohol, which resulted in injury to another person. (Veh. Code, § 23153, subd. (a); 

Pen. Code, § 12022.7, subd. (a).) On November 7, 2014, defendant pled not guilty to 

both counts in case No. 877 and denied the other allegations. However, pursuant to a 

plea agreement, he subsequently pled guilty to count 2 and admitted the prior conviction 

in case No. 094. In accordance with the agreement, the trial court ordered that the 

conviction date for the current offense to be backdated to December 10, 2013. The 

parties stipulated that the police reports contained a factual basis for the plea. The court 

dismissed the remaining counts and allegations. Defendant was sentenced immediately 

as agreed upon. The court sentenced him to two years in state prison and awarded 730 

days of presentence custody credits (365 actual and 365 conduct). Thus, the court 

deemed the sentence served. 

Defendant filed a timely notice of appeal and requested a certificate of probable 

cause, which the court granted. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

A police officer was dispatched to the area of 16th Street and Tanglewood Avenue 

in Upland, California on a report of a traffic collision. Upon arriving to the area, the 

officer observed defendant sitting on a moped on the sidewalk. The windshield of the 

moped was on the ground next to him. Defendant had his helmet in his hands, but as the 

officer approached him, he put his helmet on, as if he was going to leave. As the officer 

got closer, defendant took off his helmet and talked to him. The officer could smell a 

very strong odor of alcohol on defendant’s breath, and defendant’s eyes were watery and 

bloodshot.

Defendant was charged with and admitted that, on or about September 13, 2013, 

he was driving under the influence of alcohol while having a blood-alcohol content of 

0.08% or higher. (Veh. Code, § 23152, subd. (b).) He also admitted that he had another 

conviction for driving under the influence in case No. 094.

DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to 

represent him. Counsel has 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 no potential arguable issues. Counsel has also requested this court to 

undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which 

he has not done. 
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 Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have 

conducted an independent review of the record and find no arguable issues. However, we 

note that the abstract of judgment reflects the date of conviction as November 17, 2014. 

This date appears to be a clerical error, since the trial court expressly ordered the 

conviction date to be backdated to December 10, 2013. Generally, a clerical error is one 

inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) A court “has 

the inherent power to correct clerical errors in its records so as to make these records 

reflect the true facts.” (In re Candelario (1970) 3 Cal.3d 702, 705.) It is evident that the 

superior court clerk’s error in indicating in the abstract of judgment that the date of 

conviction was November 17, 2014, was inadvertent. Accordingly, we will direct the 

clerk to correct the abstract of judgment to reflect the date of conviction as December 10, 

2013.

DISPOSITION

The superior court clerk is directed to correct the abstract of judgment by

indicating that the date of conviction on count 2 is December 10, 2013. The clerk is 

further directed to forward a copy of the amended minute order and the abstract of 
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judgment to the Department of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.