Error and/or relief
The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).
Holding:
The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.
These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.
Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.
For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.
Authority:
People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474
People v. Trotter (1992) 7 Cal.App.4th 363, 370