Opinion
A151089
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY JAMES STOVALL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR179588)
Zachary James Stovall appeals from a post-judgment order amending his abstract of judgment. At issue is whether the Napa Superior Court improperly resentenced appellant when it amended the abstract of judgment to include his previously imposed sentence from Lake County. The effect of the amendment was to send defendant back to prison after he had completed his Napa County sentence.
In this appeal, appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436.) Appellant was notified of his right to file a supplemental brief, but has not done so. We directed the parties to file supplemental briefing concerning whether the Napa County Superior Court's failure to reference the Lake County sentence either at the sentencing hearing or on the abstract of judgment constituted judicial errors not subject to correction or clericals errors that may be corrected at any time. We further posited that even if the Napa County Superior Court had the authority to amend the abstract of judgment, was it unfair to send appellant back to prison for a second term.
Upon our independent review of the record, we conclude that no arguable issues are presented for review. However, a clerical error was made, and we will remand for the trial court to modify the abstract of judgment. As modified, we will affirm the judgment.
BACKGROUND
On April 26, 2016, the Napa County District Attorney filed criminal charges against appellant. While the Napa County criminal case was pending, on June 6, 2016, appellant was sentenced to a Realignment Act county jail commitment (Pen. Code, § 1170, subd. (h)) of three years and eight months in two Lake County Superior Court cases: CR940039 and CR938453.
All further undesignated statutory references are to the Penal Code. --------
On July 19, 2016, pursuant to a negotiated disposition, appellant entered no contest pleas in the Napa County case to first degree burglary (§ 459) and evading an officer (Veh. Code, § 2800.2, subd. (a)) counts with the understanding that he would receive a two-year state prison sentence that would run concurrently with the recently imposed Lake County jail commitment. The written plea form stated that the probation department would calculate appellant's time credits to run concurrently with his Lake County commitment. At the plea hearing, the trial court adopted the written plea agreement, making it "the order of the Court."
At the conclusion of the plea hearing, defense counsel informed the court that appellant would be willing to waive time for sentencing. The court indicated that a waiver was not necessary as it expected to have sentencing in 20 court days. The following exchange occurred: "[DEFENSE COUNSEL]: I was going to ask that it be put out farther than that, because probation is going to need to do some looking into . . . his Lake Cou[n]ty case. We're going to ask it be run concurrent. [¶] THE COURT: I don't even need too much of a report. It's a 412 plea for two years. [¶] [DISTRICT ATTORNEY]: But he'll need to be resentenced on his Lake County case as well. It's an 1170 (h) local prison sentence. His Lake County is a local prison. [¶] THE COURT: But he'll be going to prison. [¶] [DISTRICT ATTORNEY]: He'll need to be resentenced on the Lake County case at the time of sentencing in this case. [¶] THE COURT: Okay. Doesn't sound like it's very complicated. We just need to get that information."
The probation officer's felony presentence report, which the trial court received on August 19, 2016, included a section entitled "Conditions of Plea," which provided: "The parties' agreement states: 'Plead No Contest, 2 year SP- 412 plea. Counts 2, 3, & 4 dism MODA. Probation to calculate def's time credits to run concurrent w/his Lake Co. commitment.' " The probation officer calculated appellant's time served credits at half time, to wit: 120 days (60 actual days/60 § 4019) for Lake County and 113 (57 actual days/56 § 4019) for Napa County, for a total of 233 days.
On August 23, 2016, the trial court sentenced appellant to two years in prison for his Napa County offenses. At the sentencing hearing, the court did not state that the sentence would run concurrently to appellant's Lake County commitment or otherwise mention the Lake County case. The abstract of judgment similarly did not mention the Lake County commitment.
In a memorandum dated March 27, 2017, the Deputy Court Clerk of the Lake County Superior Court informed the Napa County Superior Court that the abstract of judgment in the Napa County case "failed to address the Lake County cases (CR940039 and CR938453)." When appellant completed his state prison sentence, the California Department of Corrections and Rehabilitation notified Lake County, due to a hold placed by Lake County, which then picked up appellant to serve out the remainder of his Lake County sentence. The memorandum concluded by noting: "Furthermore, it appears that Napa County Superior Court may need to re-address the sentence imposed in Napa County Superior Court case CR179588 so as to comply with [Penal Code section 669, subdivision (d)]."
On March 28, 2017, in response to the memorandum from the Lake County Superior Court, the Napa County Superior Court placed appellant's case back on calendar "for hearing on clarification of order." The Napa County Superior Court then continued the matter to allow appellant's Lake County trial counsel to make an appearance regarding the "clarification" at issue. On April 7, 2017, appellant's Lake County trial counsel filed a motion objecting to any modification to the abstract of judgment in the Napa County case on jurisdictional grounds.
On April 13, 2017, the Napa County Superior Court held a hearing on appellant's motion. At the start of the hearing the trial court explained, "I don't think I have any other options but to correct the Abstract in that at the time of sentencing and at the time of the plea neither counsel put in the case numbers of Lake County. And in the probation report it did say that it was to run concurrent with the Lake County, but neither the D.A. or defense counsel, and obviously it's on me, I'm the one who should have done it, but I didn't have the numbers and I should have caught it." After hearing from counsel, the trial court denied the motion and issued an amended abstract of judgment specifying that the sentence imposed in the Napa County case was to run concurrently with the sentence previously imposed in the Lake County case. The trial court rejected defense counsel's argument that amending the abstract and sending him back to prison at this point would amount to an impermissible "resentencing" in excess of the court's jurisdiction. Instead, the trial court maintained that it was merely correcting a "clerical error." The court explained: "I'm not resentencing. I'm correcting the Abstract."
DISCUSSION
Preliminarily, we reject the Attorney General's position that appellant's appeal should be dismissed for lack of a certificate of probable cause. Appellant is not appealing from the underlying judgment of conviction. Rather, he seeks review of the post-judgment order amending the abstract of judgment. Given the limited confines of the appeal, a certificate of probable cause was not required. A. The Trial Court's Error Was Clerical.
Generally speaking, once a judgment is rendered, the sentencing court is without jurisdiction to modify the sentence. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204 (Turrin).) There are a few limited exceptions to this general rule. First, pursuant to section 1170, subdivision (d)(1), a sentencing court, on its own motion, may recall a sentence and resentence the defendant within the first 120 days of the original commitment. (Id. at p. 1204; Dix v. Superior Court (1991) 53 Cal.3d 442, 464.). Second, "[a] trial court may correct a clerical error, but not a judicial error, at any time. A clerical error is one that is made in recording the judgment; a judicial error is one that is made in rendering the judgment. [Citations.]" (Turrin, supra, 176 Cal.App.4th at p. 1205.) Third, an unauthorized sentence may be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; In re Harris (1993) 5 Cal.4th 813, 840 [acts in excess of jurisdiction " 'do not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal' "] (Italics omitted).)
At issue here is the distinction between a clerical and judicial error. " '[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 exists independently of statute and may be exercised in criminal as well as in civil cases.' " (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell), quoting In re Candelario (1970) 3 Cal.3d 702, 705.) Such clerical errors may be corrected at any time. (Mitchell, supra, 26 Cal.44th at p. 185, In re Candelario, supra, 3 Cal.3d at p. 705.) Clerical errors include "inadvertent errors made by the court 'which cannot reasonably be attributed to the exercise of judicial consideration or discretion.' " (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034; Bowden v. Green (1982) 128 Cal.App.3d 65, 71.)
In contrast, "judicial error is the deliberate result of judicial reasoning and determination." (Conservatorship of Tobias, supra, 208 Cal.App.3d at p. 1035.) " 'The test is simply whether the challenged judgment was made or entered inadvertently (clerical error) or advertently (judicial error).' " (Bowden v. Green, supra, 128 Cal.App.3d at p. 71.) Judicial errors may not be corrected at any time and generally are only correctable in limited circumstances, namely, those described in section 1170, subdivision (d)(1) and unauthorized sentences. (Turrin, supra, 176 Cal.App.4th at pp. 1204-1205.)
Here, the record reflects that parties fully intended appellant's Napa County sentence to run concurrently with his Lake County sentence. The trial court inadvertently omitted the pronouncement of appellant's concurrent Lake County sentence, largely due to the fact that it did not have the Lake County case numbers at the time of sentencing. The abstract of judgment shows his Napa County sentence was not made concurrent with the three-year, 8-month sentence in Lake County Case Nos. CR940039 and CR938453. This omission was not the result of " 'the exercise of judicial consideration or discretion.' " (Conservatorship of Tobias, supra, 208 Cal.App.3d at p. 1034.) Nothing in the record suggests the trial court intended to renege on its promise to make the negotiated plea the "order of the court," which included making appellant's Napa County case concurrent with his Lake County case.
The error appears to be a clerical mistake and thus could be corrected at any time. (Mitchell, supra, 26 Cal.4th at p. 185.) The revised abstract of judgment, however, also fails to include the Lake County sentence. Therefore, we will remand appellant's case to the Napa County Superior Court to amend the abstract of judgment to reflect that the two-year sentence in Napa County Case No. 179588 is concurrent with the three-year, eight-month sentence in Lake County Case Nos. CR940039 and CR938453. B. Returning Appellant to Prison Was Not Unfair.
Appellant contends that even if the trial court did not err in modifying the abstract of judgment, the trial court should not have ordered appellant returned to custody under "principles of fairness" articulated in People v. Tanner (1979) 24 Cal.3d 514, 518 (Tanner)
In Tanner, supra, 24 Cal.3d 514, the California Supreme Court held that requiring a defendant, who had been improperly placed on probation, to be reincarcerated would be unjust. (Id. at p. 518.) Tanner determined the trial court had unlawfully granted the defendant probation and a one-year jail term rather than send him to prison. Since the defendant had completed both the jail term and probation and because sending the defendant to prison for a second incarceration would have been unjust, the Supreme Court "declined to order the defendant to serve the required prison term. [Citation.]" (People v. Statum (2002) 28 Cal.4th 682, 695, 697 (Statum).)
As of the writing of this opinion, appellant remains in custody and thus, Tanner has no application. However, even if appellant has been released, it is the general rule that a defendant may be reincarcerated if he has been prematurely released from custody on the basis of an unauthorized sentence. (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1759 (Lockridge).) Tanner represents an exception to this general rule of reincarceration (Lockridge, supra, 12 Cal.App.4th at p. 1759) and since it was decided, the Supreme Court has "never relied on it to pretermit the correction of a sentence that was illegally or improperly imposed" (Statum, supra, 28 Cal.4th at p. 696). The Supreme Court has also since questioned whether Tanner remains good law. (Statum, supra, 28 Cal.4th at pp. 696-697.)
Tanner applies only when the judicial mistake arises from an uncertainty in the law. (Tanner, supra, 24 Cal.3d at p. 521.) It has been further limited "to circumstances in which (1) the defendant has successfully completed an unauthorized grant of probation; (2) the defendant has returned to a law-abiding and productive life; and (3) 'unusual circumstances' generate a 'unique element' of sympathy, such that returning the defendant to jail 'would be more than usually painful or "unfair." ' [Citation.]" (Statum, supra, 28 Cal.4th at pp. 696-697, fn. 5.)
Appellant cannot satisfy the requirements of Tanner and Statum. First, appellant did not complete an unauthorized grant of probation. Second, appellant had not returned to a law abiding life when the court ordered his return to prison. He was still in Lake County custody. Returning him to prison, thus, did not cause him the same disruption to his life that the defendant in Tanner would have suffered. Third, there were no unusual circumstances that made returning him to prison unfair. Indeed, appellant was required to serve his concurrent Lake County sentence under the terms of his plea agreement. It was correct and fair to require appellant to abide by his end of the plea agreement.
Finally, appellant contends that returning him to prison "conflicts with the spirit and legislative aims of the Realignment Act" to significantly change the punishment for certain felony convictions. The legislative intent underlying the Realignment Act is codified in section 17.5. (Stats.2011, ch. 39, § 5.) Section 17.5 states that the Legislature is committed "to reducing recidivism among criminal offenders." (§ 17.5, subd. (a)(1).) Because "policies that rely on building and operating more prisons . . . will not result in improved public safety," the Legislature declares in section 17.5 that "California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety. . . ." (§ 17.5, subd. (a)(3)-(4).) The Legislature further declares in section 17.5 that "Realigning low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs, which are strengthened through community-based punishment, evidence-based practices, improved supervision strategies, and enhanced secured capacity, will improve public safety outcomes among adult felons and facilitate their reintegration back into society." (§ 17.5, subd. (a)(5).)
Returning appellant to prison to complete his sentence is not contrary to the legislative intent of the Realignment Act to reduce recidivism or improve public safety. Appellant recognizes that " '[w]hen a court imposes a concurrent term of imprisonment and imprisonment for one of the crimes is required to be served in the state prison, the term for all crimes shall be served in the state prison, even if the term for any other offense specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170.' " (§ 669, subd. (d).) Nevertheless, he argues that "when an offender has been released from prison due to a judicial error after serving the entirety of the portion of the sentence attributable to offenses for which a state prison sentence is required, section . . . 669, subdivision (d), should not be applied so rigidly." Here, however, the trial court made an inadvertent clerical error, which was subsequently corrected. In these circumstances, returning appellant to prison was not unfair.
DISPOSITION
The Napa County Superior Court is directed to modify the abstract of judgment to reflect that the two-year sentence in Napa County Case No. 179588 is concurrent with the three-year, eight-month sentence in Lake County Case Nos. CR940039 and CR938453. The Napa County Superior Court is further directed to forward the modified abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
RIVERA, J.