Filed 10/3/13 P. v. Spencer CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. CLAUDE CHARLES SPENCER, Defendant and Appellant. F065770
(Super. Ct. No. F10904772)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Fresno County. Ralph Nunez, Judge. (Retired judge of the Fresno County Sup. Ct. a ssigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Catherine White, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
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* Before Gomes, Acting P.J., Kane, J. and Franson, J.2 Appellant, Claude Charles Spencer, pled no contest to transportation of cocaine base (count 1/Health & Saf. Code, § 11352, subd. (a)); possession for sale of cocaine base (count 2/Health & Saf. Code, § 11351); and he admitted five prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) 1 and two prior conviction enhancements (Health & Saf. Code, § 11370.2). On appeal, Spencer contends: 1) his abst ract of judgment cont ains two clerical errors, and 2) the court erred by its failure to recalculate his presentence custody credit. We find merit to Spencer’s first contention and direct the court to issue a corrected abstract of judgment. In all other respects, we affirm.
FACTS On September 16, 2010, Fr esno police officers arrest ed Spencer during a traffic stop after they found a glass pipe with white residue and a burnt tip, and a baggie containing 1.29 grams of cocain e base on his person. Spencer admitted to the officers he was taking the cocaine base to a hotel to sell it for $50. On September 20, 2010, the district atto rney filed a complain t charging Spencer with the counts and enhancements he pled to. On March 28, 2011, Spencer ente red his plea in this matter. On October 25, 2011, the co urt struck four prior pris on term enhancements and sentenced Spencer to a si x-year local term: the aggravated term of five years on count 1, a stayed four-year term on count 2, a one-y ear prior prison term enhancement, and two stayed three-year prior co nviction enhancements. On June 19, 2012, Spencer filed a moti on seeking compassionate release pursuant to section 1170, subdivision (e), which th e court denied on July 5, 2012. On July 11, 2012, the court awarded Spencer 538 days of presentence custody credit consisting of 269 days of presentence actual cust ody credit and 269 days of

1 All further statutory references are to the Penal Code unless otherwise indicated.3 presentence conduct credit. The court also noted that the stay ed terms on the prior
conviction enhancements were unauthor ized and it struck the enhancements. 2 The court did not otherwise modify Spen cer’s sentence or his award of actual custody credit.
DISCUSSION
The Error in the Ab stract of Judgment Spencer contends his abstract of judg ment erroneously fails to indicate that the sentence on count 2 was stayed. We agree. “‘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. [Citations.] The power ex ists independently of statute and may be exercised in criminal as well as in civil cases. [Citati on.] The power is unaffected by the pendency of an appeal or a habe as corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.’ [Cit ation.] Courts may correct clerical errors at any time, and appellate cour ts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately refl ect the oral judgments of sentencing courts. [Citations.]” ( People v. Mitchell (2001) 26 Cal.4th 181, 185.) Although the court stayed the four-year term it impos ed on count 2, Spencer’s abstract of judgment erroneously indicates th e court imposed a concurrent four-year term
on this count. Additionally, item 8 of Spen cer’s abstract of judgment (Judicial Council Form CR-290) states that the six-year term impos ed by the trial court is the “Total Time Excluding County Jail Term.” Spencer conte nds the abstract of judgment should be
amended to reflect that the total term include s the county jail term the court imposed.

2 The reporter’s transcript of this h earing indicates the court struck the enhancements. The minute order of the heari ng, however, indicates the court struck only the punishment. Since the oral pronouncement controls over the minute order ( People v. Mesa (1975) 14 Cal.3d 466, 471), we find that the court struck the actual enhancements, not just the punishment.4 The language complained of is incorrect because Spencer was sentenced to local
time. This issue arose because the trial court used the vers ion of Judicial Council form
CR-290 entitled “Abstract of Judgment-Prison Commitment-Determinate,” which was revised on July 1, 2009. However, this version of CR-290 is not suitable for commitments to county jail pur suant to section 1170, subdi vision (h)(1) and (2), and has been superseded by the version of Form CR- 290 that was revised and became effective on July 1, 2012. This latest version of Form CR-290 is entitled “Felony Abstract of Judgment-Determinate” and should have been used by the trial cour t when it issued an amended abstract of judgment on July 11, 20 12, because it is meant to be used for local commitments pursuant to the ab ove-noted subsections of sec tion 1170, subdivision (h), as well as determinate prison commitments. Additi onally, section 8 of th e latest version of Form CR-290 simply states, “Total Time.” In view of the foregoing and the other error complained of above, we will direct the trial court to issue an amended abstract of judgment using the version of Form CR-290 that was revise d effective July 1, 2012. The Credit Issue Spencer contends the court modified his sentence at the July 11, 2012, hearing when it struck the two-year prior conviction enhancement it had previously imposed and stayed. He relies on People v. Buckhalter (2001) 26 Cal.4th 20 to contend that this modification required the court to calculate th e days he spent in custody from October 25, 2011, through July 11, 2012, an d to include these days in hi s abstract of judgment. We disagree. Section 2900.1 provides: “Where a de fendant has served any portion of his sentence under a commitment based upon a ju dgment which judgment is subsequently
declared invalid or which is modifi ed during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upo n a new commitment for the
same criminal act or acts. ” (Italics added.)5 In explaining the application of s ection 2900.1, the Supreme Court in Buckhalter held, “[W]hen a prison term already in progre ss is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified

sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.” ( Buckhalter, supra, 26 Cal.4th at p. 29.) Credit for these days should be awarded in the new abstract of judgment. ( Id. at p. 41.)
Buckhalter is inapposite because Spencer was not serving a prison term when the court struck the prior conviction enhancements and his sentence was not modified “as a result of an appellate sentence remand.” ( Buckhalter, supra, 26 Cal.4th at p. 29.) Instead, after noticing that the stayed terms imposed on the prior conviction enhancements were unauthorized, 3 the trial court simply stru ck the enhancements without altering any of the other components of Spence r’s sentence. Thus we conclude the trial court did not err by its failure to calculate a nd include in his abstract of judgment the actual days Spencer served in custody betwee n the date of his sent encing on October 25, 2011, and July 11, 2 012, the date the court struck th e prior conviction enhancements.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment (Form CR290, revised on July 1, 2012) that does no t list the two prior co nviction enhancements that were stricken by the court and which sh ows that the court imposed a stayed term on
count 2 and to forward a cer tified copy to the appropriat e authorities. In all other respects, the judgment is affirmed.

3 People v. Lopez (2004) 119 Cal.App.4th 355, 364 (ordinarily an enhancement must be either imposed or stricken in furt herance of justice pursuant to section 1385).