Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS040311
Bamattre-Manoukian, ACTING P. J.
I. INTRODUCTION
In 2004, defendant Maria Elena Trevino, a citizen of Mexico, pleaded guilty to one felony, forgery (Pen. Code, § 470, subd. (d)), and one misdemeanor, commercial burglary (§ 459). The trial court suspended imposition of sentence and placed defendant on probation for a period of three years. After defendant violated probation in 2005, the trial court revoked probation. On February 3, 2006, the court again placed defendant on probation for three years and ordered her to serve a 365-day jail term as one of the conditions of probation.
All statutory references hereafter are to the Penal Code.
In 2010, defendant filed a “Request for Clarification of Sentence, ” in which she advised the court that she was currently in the custody of the Department of Homeland Security and that removal proceedings were pending. Defendant sought a court order stating that she had served 183 days on one offense and 182 days on the other offense. Over the People’s objection, the trial court on September 13, 2010, ordered “the records from February 3, 2006, clarified or corrected” to reflect that “time served of 236 days be applied” to the forgery count and that 129 days, “the balance of the 365 days, ” be applied to the commercial burglary count.
On appeal, the People argue that the trial court lacked jurisdiction to modify a sentence that had been already served in order to assist defendant to avoid immigration consequences. For reasons that we will explain, we determine that the trial court exceeded its jurisdiction and therefore we will reverse the postjudgment order of September 13, 2010, modifying defendant’s jail term.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
According to the June 29, 2005 probation report, the facts from which the charges of forgery and commercial burglary arose are as follows. On March 25, 2004, the Monterey County Sheriff’s Office received a report of mail theft from Soledad resident Phyllis Albertoni. That morning, Albertoni had paid her bills. She attempted to mail the payments by placing envelopes containing the bills and her checks in her mailbox. Later that day, Albertoni learned from a friend and the post office that the envelopes had been found in other mailboxes with the checks missing.
During the investigation, sheriff’s deputies recovered one of the checks from Nob Hill Foods, where it had been cashed. The check was originally intended to be a payment to PG&E, but the name of the payee had been changed from “PG&E” to “Maria E. Trevino.” When defendant was contacted by the sheriff’s deputies, she admitted that the signature on the check was hers. Although defendant denied stealing any checks, she also admitted that she had cashed an Albertoni Ranch check at El Camino Liquors in Greenfield for $800. The owner of El Camino Liquors recalled cashing the check and acknowledged that the store had cashed defendant’s checks for many years.
B. Procedural Background
1. Plea Agreement and Sentencing
The complaint filed on July 21, 2004, charged defendant with five felony offenses, including receiving stolen property consisting of checks belonging to Phyllis Albertoni (§ 496, subd. (a); count 1), forgery of checks belonging to Phyllis Albertoni (§ 470, subd. (d); count 2); receiving stolen property consisting of a check belonging to El Camino Liquors (§ 496, subd. (a); count 3), forgery of a check belonging to El Camino Liquors (§ 470, subd. (d); count 4) and commercial burglary of El Camino Liquors (§ 459; count 5). The complaint was amended orally in court on June 7, 2005, to reduce count 5 to a misdemeanor violation of section 459.
Defendant subsequently entered into a plea agreement in which she agreed to plead guilty to counts 4 and 5 in exchange for receiving felony probation. The trial court advised defendant that the maximum sentence was three years and that the conviction might have immigration consequences.
At the sentencing hearing held on July 6, 2005, the trial court suspended the imposition of sentence and placed defendant on probation for a period of three years. Counts 1, 2 and 3 were dismissed on the People’s motion in the interests of justice.
A notice of probation violation was filed on November 7, 2005, due to defendant’s “[f]ailure to obey all laws, ” and defendant’s probation was revoked on November 18, 2005. During court proceedings held on November 30, 2005, defendant admitted the allegations that she had violated probation. On February 3, 2006, the trial court placed defendant on probation for three years and, among other conditions of probation, ordered defendant “to serve 365 days with credit for 236 days served, 158 actual, 78 conduct credits.” The court did not state how the term of 365 days applied as to each count.
On February 3, 2006, the court also ordered, as another condition of probation, that defendant “serve 120 days with credit for 120 days served, 80 actual, 40 conduct credits, ” in People v. Trevino (Super. Ct. Monterey County, 2006, No. 053233). Case No. 053233 is not at issue in this appeal.
2. Defendant’s Motion for Clarification of Sentence
Over five years after sentencing, on August 30, 2010, defendant filed a motion entitled “Request for Clarification of Sentence.” In her points and authorities, defendant advised the court that she was currently in the custody of the Department of Homeland Security while removal proceedings were pending before the Immigration Court of the United States Department of Justice. She stated that the trial court had failed to indicate in its record of the court’s February 3, 2006 proceedings “whether it was imposing 365 days concurrently for each offense or something less consecutively by adding up to 365 days.” Defendant further stated, “By this request, [defendant] seeks this Court’s clarification regarding its intended imposition of custody time for each offense.” She asked the court to “clarify the sentence to reflect that she served 183 days for one offense and 182 days for the other offense with the attendant credit for time served to remain the same.”
In support of her request, defendant attached the May 19, 2010 memorandum of the Hon. Anthony S. Murry, Immigration Judge. Judge Murry stated in his memorandum that defendant is a citizen of Mexico with a history of drug abuse and theft-related crimes since 2002. The United States Department of Homeland Security (which encompasses the former United States Immigration and Naturalization Service) had commenced removal proceedings against defendant pursuant to section 237(a)(2)(A)(ii) of the Immigration and Nationality Act (8 U.S.C. § 1227, subd. (a)(2)(A)(ii)) because she had been convicted of two crimes of moral turpitude not arising from a single scheme of criminal misconduct. Judge Murry also stated that defendant had applied for cancellation of the removal proceedings under section 240A(a) of the Immigration and Nationality Act.
However, Judge Murry noted that section 240A(a) of the Immigration and Nationality Act (8 U.S.C. § 1229, subd. (b)(a)(3)) provides that removal proceedings may not be cancelled if the applicant has been convicted of an aggravated felony. Therefore, defendant became ineligible for cancellation “when she was sentenced to 365 days in jail in 2006.... Both the forgery and the commercial burglary charged in the complaint to which [defendant] pled guilty are aggravated felonies if a sentence of 365 days or more is imposed. [Citations.]” Although defendant asserted that the record was inconclusive as to whether the 365-day sentence related to the forgery or the burglary, Judge Murry responded that “if the record of conviction is inconclusive as to whether [defendant] has been convicted of an aggravated felony, under precedent from the Board of Immigration Appeals, which is binding on this court, the [defendant] has failed to establish her eligibility for cancellation of removal. [Citation.]”
Judge Murry granted defendant’s request for additional time to submit further briefing on the issue of her sentence, stating, “The court understands that [defendant] may return to the Superior Court and seek a sentence modification or clarification.... If the Superior Court modifies [defendant’s] sentence nunc pro tunc to less than 365 days, that would not guarantee [defendant] a right to remain in the United States, but it would afford her an opportunity to present evidence at a hearing in support of a request to remain in the United States.”
The People opposed defendant’s request for clarification of sentence, arguing that the trial court was not authorized to entertain a postjudgment motion unrelated to any proceeding pending before the court. The People also argued that the trial court lacked jurisdiction to alter defendant’s sentence, since her period of probation had expired in February 2009 and defendant had already served her sentence. Alternatively, the People maintained that even if the trial court had made a judicial error in sentencing, the error could not be corrected since the court lacked jurisdiction. The People further opposed the motion on the policy ground that the trial court should not aid defendant to circumvent immigration consequences.
3. The Trial Court’s Order
The hearing on defendant’s request for clarification of sentence was held on September 13, 2010. The trial court ruled from the bench as follows: “Well, I’m going to go ahead and enter the order. I have some misgiving whether it’s going to fly or not. [¶] The Court orders the records from February 3, 2006, clarified or corrected as follows: [¶] As to Count 4, the Court orders that time served of 236 days be applied to that count. [¶] As to Count 5, the misdemeanor count, the Court orders the balance of 365 days, which I believe is 129 days, applied to Count 5.”
The People filed a timely notice of appeal from the September 13, 2010 order on November 9, 2010.
III. DISCUSSION
A. Appealability
Defendant contends that the appeal must be dismissed because the People lack authorization to appeal the September 13, 2010 order under section 1238, which limits the People’s right to appeal. The People disagree, arguing that their appeal is authorized under section 1238, subdivision (a)(5) as an order affecting the substantial rights of the People and also under section 1238, subdivision (a)(6) as an order in excess of the court’s jurisdiction.
Section 1238 provides in part, “(a) An appeal may be taken by the people from any of the following:... [¶] (5) An order made after judgment, affecting the substantial rights of the people. [¶] (6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”
Section 1238 “governs the People’s appeals from orders or judgments of the superior courts. [Citation.]” (People v. Alice (2007) 41 Cal.4th 668, 673.) As this court has previously observed, under section 1238, subdivision (a)(5), “ ‘[t]he People have a right to appeal “[a]n order made after judgment, affecting the substantial rights of the people.” [Citation.]’ [Citation.] A probation order is considered to be a final judgment for the ‘limited purpose of taking an appeal therefrom.’ ” (People v. Mendoza (2009) 171 Cal.App.4th 1142, 1149 (Mendoza).) Under section 1238, subdivision (a)(6), the People may appeal “[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”
In Mendoza, this court determined that the People were authorized under section 1238, subdivision (a)(5) to appeal a trial court order that reduced the 365-day jail term originally imposed as a condition of probation, since the order affected the substantial rights of the People. (Mendoza, supra, 171 Cal.App.4th at p. 1149.) It has also been held that under section 1238, subdivisions (a)(5) and (a)(6), the People are authorized to appeal “an order made after the grant of probation that seeks to modify nunc pro tunc a probation term that has been fully served. [Citation.]” (People v. Borja (2002) 95 Cal.App.4th 481, 485 (Borja).)
In the present case, the trial court’s September 13, 2010 order modified the 365-day jail term originally imposed as condition of probation by dividing the 365-day term between the two convictions and deeming defendant to have served 236 days on the forgery count and 128 days on the commercial burglary count. We determine that the People are authorized to appeal the postjudgment order of September 13, 2010, under section 1238, subdivisions (a)(5) because the order modifies a term of probation--the 365-day jail term--that has been fully served, thereby affecting the substantial rights of the People. (Mendoza, supra, 171 Cal.App.4th at p. 1149; Borja, supra, 95 Cal.App.4th at p. 485.)
B. Jurisdiction
The People contend that the September 13, 2010 order must be reversed because the trial court lacked jurisdiction for several reasons: (1) the court was not authorized to entertain a postjudgment motion to clarify defendant’s sentence since there was no action pending to which the motion could attach; (2) defendant’s probationary period expired in February 2009 and therefore the trial court could not make any orders modifying her probation; (3) the court’s nunc pro tunc authority to correct clerical errors at any time did not apply; (4) a jail term cannot be modified once the term has been served; and (5) the court is not authorized to modify a jail term retroactively to assist defendant in avoiding immigration consequences.
1. Modification of the 365-Day Jail Term After It Was Served
Since we find it to be dispositive, we will begin our analysis by addressing the issue of whether the trial court had jurisdiction to modify defendant’s 365-day jail term after it was served. We observe that defendant does not dispute the People’s assertions that, prior to defendant’s 2010 filing of her request for clarification of her sentence, she had already served her 365-day jail term and her probationary period had expired in February 2009.
In Mendoza, this court addressed the issue of whether the trial court had the authority, while the defendant was still on probation but had been transferred to a federal detention facility pending deportation, to reduce a previously served 365-day jail term imposed as a condition of probation to 364 days. (Mendoza, supra, 171 Cal.App.4th at pp. 1145-1146.) Noting that the defendant had not provided any authority for the proposition that the court may change a jail term that has already been served in order to prevent deportation, this court rejected that proposition. Since “ ‘[u]nder the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of sentence has commenced, ’ ” this court concluded that the trial court had no authority to create a “legal fiction” for immigration purposes by modifying a previously served jail term. (Id. at pp. 1149-1150, 1153.)
A similar conclusion was reached in Borja. In that case, the defendant was also ordered to serve a 365-day jail term as a condition of probation. (Borja, supra, 95 Cal.App.4th at p. 483.) After the defendant had served the 365-day jail term and his period of probation had expired, he made a motion to reduce his sentence from 365 days to 364 days on the ground that he had been told by the United States Immigration and Naturalization Service that reducing his sentence was the only way to avoid deportation. (Id. at pp. 483-484.) The Borja court determined that the trial court had erred in issuing a nunc pro tunc order modifying the sentence to the date of the original sentencing to 364 days. (Id. at p. 487.) The order did not involve a clerical error subject to the court’s nunc pro tunc authority, the court found, since the defendant “sought imposition of a sentence different from the one that had been intended, imposed, and served.” (Ibid.)
The Borja court also found that the trial court’s nunc pro tunc order was improper on policy grounds. “To permit a court, years after a person has pleaded guilty and the term has been served, to obtain a retroactive order altering the record in a manner so that the conviction could not be later used, violates the Legislature’s clear intent and the rulings of the federal courts that prior convictions be available for future use, including, pursuant to the federal decisions, immigration consequences.” (Borja, supra, 95 Cal.App.4th at p. 487.)
In accordance with Mendoza and Borja, we determine that the trial court in the present case acted in excess of its jurisdiction when it modified defendant’s 365-day jail term after it had been served by ruling that “the records from February 3, 2006, [be] clarified or corrected” to reflect that “time served of 236 days be applied” to the forgery count and that 129 days, “the balance of the 365 days, ” be applied to the commercial burglary count. The trial court had no authority to create a “legal fiction” for immigration purposes by retroactively modifying a previously served jail term. (Mendoza, supra, 171 Cal.App.4th at pp. 1149-1150, 1153; Borja, supra, 95 Cal.App.4th at pp. 485-486.)
We are not convinced by defendant’s arguments to the contrary. According to defendant, the trial court could not lawfully impose concurrent sentences of 365 days on the forgery count and the burglary count and, therefore, the only reasonable interpretation is that the court intended to split the 365-day jail term between the two counts. Defendant acknowledges that section 669 provides that where, as here, the court has failed “to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.” However, defendant relies on section 19.2, which prohibits confinement in the county jail for longer than one year as a condition of probation. We understand defendant to argue that since the trial court initially imposed a 90-day jail term as a condition of probation condition on July 6, 2005, before defendant’s probation was revoked, the trial court could not subsequently impose concurrent jail terms of 365 days on February 3, 2006, which would add up to a total term of more than 365 days of jail.
Section 19.2 provides, “In no case shall any person sentenced to confinement in a county or city jail, or in a county or joint county penal farm, road camp, work camp, or other county adult detention facility, or committed to the sheriff for placement in any county adult detention facility, on conviction of a misdemeanor, or as a condition of probation upon conviction of either a felony or a misdemeanor, or upon commitment for civil contempt, or upon default in the payment of a fine upon conviction of either a felony or a misdemeanor, or for any reason except upon conviction of more than one offense when consecutive sentences have been imposed, be committed for a period in excess of one year; provided, however, that the time allowed on parole shall not be considered as a part of the period of confinement.”
The People assert that defendant’s argument is flawed because the record shows that the trial court gave defendant credit for time served when it imposed the 365-day jail term on February 3, 2006. We agree. The record reflects that the trial court expressly ordered on February 3, 2006, that as a condition of probation defendant was “to serve 365 days with credit for 236 days served, 158 actual, 78 conduct credits.” Defendant fails to show that the trial court did not include the initial 90-day jail term when calculating the credits given when the 365-day jail term was imposed. Moreover, as defendant recognizes, a sentence of 365 days is statutorily authorized for both the forgery count (§ 473) and the burglary count (§ 461, subd. (b)). Since the trial court did not specify during the proceedings of February 3, 2006, how the jail term of 365 days should run as to the second count of burglary, pursuant to section 669 we must presume that the trial court originally intended to impose concurrent jail terms of 365 days on the forgery count and the burglary count.
Section 473 provides, “Forgery is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.”
Section 461, subdivision (b) provides, “Burglary is punishable as follows: [¶] Burglary in the second degree: by imprisonment in the county jail not exceeding one year or in the state prison.”
For these reasons, we determine under Mendoza and Borja that the trial court acted in excess of its jurisdiction when it retroactively modified the 365-day jail term after it was served.
2. Defendant’s Alternative Arguments
Alternatively, defendant contends that the trial court had jurisdiction to modify the 365-day jail term after it was served due to the trial court’s inherent power to correct either a clerical error or an unauthorized sentence at any time, as well as under the statutory authority of section 1203.4 to alter the original sentence after probation has expired. In short, defendant claims there was no bar to the trial court responding to defendant’s request for “clarification” of an ambiguous sentence, since she did not request that the sentence be reduced.
Section 1203.4, subdivision (a) provides in part, “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.”
As discussed above, we have determined that the 365-day jail term imposed on February 3, 2006, was not an unauthorized sentence. Where, as here, the record is silent as to how the sentence should run on the second count, pursuant to section 669 the 365-day jail term lawfully ran concurrently on the forgery count and the burglary count. We therefore find that the trial court did not have jurisdiction to modify the 365-day jail term on the ground that it constituted an unauthorized sentence.
We also find that the trial court was not authorized to issue a nunc pro tunc order modifying the 365-day jail term by dividing it between the two counts. “A court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order.” (In re Eckstrom’s Estate (1960) 54 Cal.2d 540, 544; People v. Mitchell (2001) 26 Cal.4th 181, 185.) “ ‘The function of a nunc pro tunc order is merely to correct the record of the judgment....’ ” (In re Eckstrom’s Estate, supra, at p. 544.) Thus, “it is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did. An order made nunc pro tunc should correct clerical error by placing on the record what was actually decided by the court but was incorrectly recorded. It may not be used as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order to enter a new one. [Citations.]” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891.)
In other words, “ ‘[t]he court can only make the record show that something was actually done at a previous time; a nunc pro tunc order cannot declare that something was done which was not done.’ [Citation.]” (Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256.) Here, the record does not reflect that the trial court intended on February 3, 2006, when it originally imposed the 365-day jail term as a condition of probation, to divide the 365 days by imposing a jail term of 236 days on the forgery count and 129 days on the burglary count. Consequently, the record does not reflect a clerical error in recording the 365-day jail term imposed on February 3, 2006. The trial court was accordingly not authorized to subsequently modify the 365-day jail term nunc pro tunc by dividing the term between the counts.
Further, defendant has not shown that the trial court retained jurisdiction over defendant, after the expiration of her probationary period in February 2009, for the purpose of modifying her 365-day jail term after it was served. “During the probationary period, the court retains jurisdiction over the defendant [citation]....” (People v. Howard (1997) 16 Cal.4th 1081, 1092-1093.) Thus, “[a] probation order may be revoked or modified only during the term of probation. [Citation.]” (People v. Daoud (1976) 16 Cal.3d 879, 882.) After the probationary period expires, “a court cannot revive lapsed jurisdiction by the simple expedient of issuing an order nunc pro tunc. [Citation.]” (Ibid.) We also note that defendant has not asserted that she sought relief from her guilty plea under section 1203.4. The provisions of section 1203.4 are therefore irrelevant in determining whether the trial court retained jurisdiction after expiration of the probationary period.
Moreover, the decisions on which defendant relies, People v. Culpepper (1994) 24 Cal.App.4th 1134 (Culpepper) and In re Griffin (1967) 67 Cal.2d 343 (Griffin), do not support her arguments. In Culpepper, the issue was whether the abstract of judgment should be modified to correctly reflect presentence custody credits. (Culpepper, supra, 24 Cal.App.4th at p. 1138.) The appellate court determined that there was no time limit on correcting an inadvertent error in calculating presentence custody credits. (Id. at pp. 1138-1139.) The decision in Culpepper is obviously distinguishable from the case at bar, where defendant has not claimed a calculation error.
The decision in Griffin is also distinguishable. In that case, the trial court revoked the defendant’s probation after expiration of the probationary period when neither the prosecution nor the defendant had informed the court of the expiration. (Griffin, supra, 67 Cal.2d at p. 345.) The California Supreme Court determined that the defendant was properly estopped from contending that the trial court had acted in excess of its jurisdiction in revoking probation after expiration of the probationary period, since defendant had sought and obtained a continuance of probation revocation proceedings to a time beyond the end of the probationary term. (Id. at pp. 348-349.) The Griffin decision does not stand for the proposition that a trial court may modify a condition of probation after the period of probation has expired.
For these reasons, we conclude that the trial court acted in excess of its jurisdiction in modifying the 365-day jail term initially imposed as condition of probation on February 3, 2006, after the term had been served and defendant’s period of probation had expired. We will therefore reverse the trial court order of September 13, 2010, directing “the records from February 3, 2006, clarified or corrected” to reflect that “time served of 236 days be applied” to the forgery count and that 129 days, “the balance of the 365 days, ” be applied to the commercial burglary count.
IV. DISPOSITION
The order of September 13, 2010, is reversed.
WE CONCUR: MIHARA.J., LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.