People v. Perkins CA3
C102680
| Cal. Ct. App. | Nov 17, 2025|
Check TreatmentFiled 11/17/25 P. v. Perkins 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C102680
Plaintiff and Respondent, (Super. Ct. No. CRF231936)
v.
AUSTIN RYAN PERKINS,
Defendant and Appellant.
Appointed counsel for defendant Austin Ryan Perkins asks this court to review the
record in this case and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Our independent review of the record discloses
that the trial court inadvertently failed to dismiss one of the charged counts after
accepting Perkins’s no contest plea to the remaining counts. We shall modify the
judgment to reflect dismissal of that count. We shall further direct the trial court to
amend the abstract of judgment and the clerk’s minutes dated October 14, 2024, to:
(1) reflect court operations assessments totaling $80 and criminal conviction assessments
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totaling $60; (2) indicate that local conduct credits were calculated pursuant to Penal
Code section 2933.11; and (3) include the executed $300 probation revocation restitution
fine. In all other respects, we affirm the judgment as modified.
BACKGROUND
On January 30, 2023, two children spoke with a police deputy concerning an
incident that had occurred six months prior. The children told the deputy that Perkins
was caring for them and their four-year-old brother while their mother was out on an
errand. Perkins entered a room where all three children were on a bed. He exposed his
genitals to one of the children and demanded that she touch him. The child refused.
Shortly thereafter, one of the children saw Perkins on his hands and knees with his pants
down in the living room having sexual intercourse with the family’s pit bull. The child
quickly exited the apartment. One of the children also informed a victim services
advocate of an incident two years prior where Perkins had rubbed the child’s thigh. The
child pointed a BB gun at Perkins and told him to stop.
Perkins was charged with committing a lewd act upon a child (§ 288, subd. (a)—
count I), attempting to commit a lewd act upon a child (§ 664/288, subd. (a)—count II),
and sexual contact with an animal (§ 286.5, subd. (a)—count III). Perkins pled no
contest to counts I and III in exchange for a grant of probation and the dismissal of
count II. The trial court made an unusual case finding and granted probation. The clerk’s
minutes dated February 5, 2024, reflect that the remaining count was dismissed; however,
the reporter’s transcript of the sentencing hearing on that date does not indicate any such
dismissal. The court imposed a restitution fine (§ 1202.4, subd. (b)) and imposed and
suspended a probation revocation restitution fine (§ 1202.44). The court also imposed
1 Undesignated statutory references are to the Penal Code.
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$80 in court operations assessments (§ 1465.8, subd. (a)) and $60 in criminal conviction
assessments (Gov. Code, § 70373).
On August 7, 2024, a probation officer petitioned to have Perkins’s probation
revoked. The petition alleged that Perkins violated the terms of his probation in several
respects, including by unlawfully using or being under the influence of
methamphetamine. Perkins admitted to the violation of probation in exchange for the
dismissal of a separate misdemeanor case.
The trial court sentenced Perkins to the lower term of three years for committing a
lewd act upon a child and a concurrent term of six months for sexual contact with an
animal. The court specified that the previously imposed $300 restitution fine remained in
effect, executed the $300 probation revocation restitution fine, and imposed and
suspended a $300 parole revocation restitution fine. In determining custody credits, the
court stated that local conduct credits were calculated pursuant to section 2933.1.
The abstract of judgment and the clerk’s minutes dated October 14, 2024, reflect a
$300 restitution fine, a $300 parole revocation restitution fine, a $40 court operations
assessment, and a $30 criminal conviction assessment. However, neither the abstract of
judgment nor the clerk’s minutes indicate that local conduct credits were calculated
pursuant to section 2933.1 or reflect the executed $300 probation revocation restitution
fine.
Perkins timely appealed in December 2024, and the trial court granted a certificate
of probable cause. His Wende brief was filed in July 2025, and this case became fully
briefed on August 25, 2025.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural
history of the case and asks this court to review the record and determine whether there
are any arguable issues on appeal. (People v. Wende, supra,25 Cal.3d 436
.) Perkins was
advised by counsel of his right to file a supplemental brief within 30 days from the date
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the opening brief was filed. More than 30 days have elapsed, and Perkins has not filed a
supplemental brief.
After examining the record, we have discovered an error in the judgment.
Although dismissal of count II was contemplated by the parties as part of the plea
agreement, the trial court inadvertently failed to dismiss this count. Because the “court
may not proceed as to the plea other than as specified in the [approved] plea” (§ 1192.5,
subd. (b)), the court’s silence at the sentencing hearing regarding dismissal of count II
was not an exercise of judicial discretion but rather a clerical error in the record of
judgment. (In re Candelario (1970) 3 Cal.3d 702, 705.)
This reading of the record is supported by the clerk’s minutes dated February 5,
2024, which reflect that the remaining count was dismissed. However, “[t]he record of
the oral pronouncement of the court controls over the clerk’s minute order” (People v.
Farell (2002) 28 Cal.4th 381, 384, fn. 2), which may not modify the judgment it purports to digest. (People v. Mitchell (2001)26 Cal.4th 181, 185
.) Because the failure to dismiss count II appears to have been an inadvertent omission, and because the clerk’s minutes did not correct this error, we shall modify the judgment to reflect dismissal of count II as contemplated by the parties. (See People v. Panizzon (1996)13 Cal.4th 68, 80
[parties
must abide by the terms of the plea agreement, including the dismissal of other counts].)
We have also identified several clerical errors in the abstract of judgment and the
clerk’s minutes dated October 14, 2024, that warrant correction. First, these documents
inaccurately list the court operations assessment as $40 and the criminal conviction
assessment as $30, even though the trial court correctly imposed those assessments as
$80 and $60, respectively. (See § 1465.8, subd. (a)(1) [“an assessment of forty dollars
($40) shall be imposed on every conviction for a criminal offense”]; Gov. Code, § 70373,
subd. (a)(1) [“an assessment shall be imposed on every conviction for a criminal offense
. . . in the amount of thirty dollars ($30) for each misdemeanor or felony”].) Second, both
the abstract of judgment and the clerk’s minutes fail to (1) indicate that local conduct
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credits were calculated pursuant to section 2933.1 and (2) reflect the executed $300
probation revocation restitution fine. We direct the trial court to amend the abstract of
judgment and the clerk’s minutes dated October 14, 2024, to correct these clerical errors.
DISPOSITION
The judgment is modified to dismiss count II. As modified, the judgment is
affirmed. The trial court is directed to amend the abstract of judgment and the clerk’s
minutes dated October 14, 2024, to: (1) reflect court operations assessments totaling $80
and criminal conviction assessments totaling $60; (2) indicate that local conduct credits
were calculated pursuant to section 2933.1; and (3) reflect the executed $300 probation
revocation restitution fine. The court shall then forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.
/s/
BOULWARE EURIE, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
FEINBERG, J.
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