In re Martinez
Filed 1/9/14 In re Martinez CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re JAVIER MARTINEZ,
on Habeas Corpus.
B247697
(
Super. Ct. No.
KA078629)
ORIGINAL
PROCEEDING. Petition for
Judge. Granted.
California
Appellate Project, Jonathan B. Steiner and Richard B. Lennon for Petitioner.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey, Margaret E. Maxwell and Yun K. Lee,
Deputy Attorneys General, for Respondent.
>
Defendant,
Jaiver Martinez, has filed a habeas corpus
petition seeking to set aside a post-judgment order imposing restitution
and parole restitution fines and their inclusion on the abstract of
judgment. (Pen. Code, §§ 1202.4, subd.
(b)(1), 1202.45.
title="">[1]) When originally sentenced, the
fines. However, the abstract of judgment
incorrectly stated they were imposed.
When the matter was brought to the trial court’s attention after the judgment
was final, it issued a nunc pro tunc order imposing the restitution and parole
restitution fines.
We
agree with defendant that the failure to orally pronounce the restitution fine
prevents it from being imposed later on a nunc pro tunc basis after the
judgment was final. Although mandatory,
imposition of a restitution fine is a discretionary sentencing choice. (People
v. Tillman (2000) 22 Cal.4th 300, 303; see In re Sheena K. (2007) 40 Cal.4th 875, 882, fn. 3;
852-853.) This is because although the
trial court was required to impose the restitution fine, it had discretion not
to do so if compelling and extraordinary
reasons were present. (§ 1202.4, subd.
(b)(1); People v. Tillman,
1369 [failure to impose § 290.3, subd. (a) sex offense fine is not a
jurisdictional error because of ability to pay provision].) In our case the trial court’s failure to
impose the section 1202.4, subdivision (b)(1) restitution fine is presumed to
be the result of an implied finding that compelling and extraordinary reasons
existed. (People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379, fn. 5.) The prosecutor’s
failure to object to the trial court’s failure to have imposed the restitution
fine forfeits the issue. (
v. Moreno (2003) 108 Cal.App.4th 1, 8.) The failure to impose the section 1202.4,
subdivision (b)(1) restitution fine was not a jurisdictional error because the
trial court had the power to not impose it.
(People v. Walz,
offender fine]; People v. Martinez
(1998) 65 Cal.App.4th 1511, 1516-1519 [drug program fee].)
Because
the trial court never orally imposed the section 1202.4, subdivision (b)(1)
restitution fine, it was clerical error for it to appear on the abstract of
judgment. The abstract of judgment must
correctly summarize the trial court’s oral pronouncement of sentence. (People
v. Mesa (1975) 14 Cal.3d 466, 471; People
v. Zackery (2007) 147 Cal.App.4th 380, 385.) Our Supreme Court
distinguished between clerical and judicial error as follows: “Clerical error, however, is to be
distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and
judicial error is ‘whether the error was made in rendering the judgment, or in
recording the judgment rendered.’ (46
Am.Jur.2d, Judgments, § 202.) Any
attempt by a court, under the guise of correcting clerical error, to ‘revise
its deliberately exercised judicial discretion’ is not permitted. (In re
Wimbs (1966) 65 Cal.2d 490, 498.)
[¶] An amendment that
substantially modifies the original judgment or materially alters the rights of
the parties, may not be made by the court under its authority to correct
clerical error, therefore, unless the record clearly demonstrates that the
error was not the result of the exercise of judicial discretion.†(In re
Candelario (1970) 3 Cal.3d 702, 705; see People
v. Nesbitt (2010) 191 Cal.App.4th 227, 233.) Thus, the abstract of judgment failed to
accurately reflect the oral pronouncement of judgment. The inclusion of the section 1202.4,
subdivision (b)(1) fine on the abstract of judgment was clerical error.
Here, the
trial court with commendable integrity and desire to carry out its statutory
obligations, recognized that it should have imposed the section 1202.4,
subdivision (b)(1) restitution fine. In
terms of the section 1202.4, subdivision (b)(1) restitution fine, the trial
court could reasonably find there were no compelling and extraordinary reasons
for not imposing it. However, if such were
the case, the failure to have orally pronounced the restitution fine was
the trial court did not have the authority in the case where the judgment is
final, to correct its prior mistake nunc pro tunc. Our Supreme Court has described a trial
court’s limited power to enter a nunc pro tunc order: “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. [Citations.] It cannot, however, change an order which has
become final even though made in error, if in fact the order made was that
intended to be made. In Smith
v. Smith [(1952)] 115 Cal.App.2d 92, the rule is expressed in the following
language at page 99: ‘The function of a
the record of the judgment and not to alter the judgment actually rendered--not
to make an order now for then, but to enter now for then an order previously
made.’†(Estate of Eckstrom (1960) 54 Cal.2d 540, 544; see
172, 175 [“The law appears to be that corrections may be made
least must show some basis for the correction, and in the exercise of its power
to make such corrections, the court is not authorized to do more than to make
its records correspond with the actual facts, and cannot, under the form of an
amendment, correct a judicial error,
or make of record an order or judgment that was never in fact made.â€].) In the present case, the trial court did not
have the authority to utilize its nunc pro tunc powers to correct its failure
to have imposed the restitution fine.
For
these reasons, the abstract of judgment cannot include the section 1202.4,
subdivision (b)(1) fine. Because no
section 1202.4, subdivision (b)(1) restitution fine may be imposed, neither may
a section 1202.45 parole restitution fine be imposed. (People
v. Tillman, supra, 22 Cal.4th at
p. 303; see People v. Smith,
Cal.App.4th 1071, 1084.) Once the remittitur issues, the clerk must
delete these two fines from the abstract of judgment.
The
habeas corpus petition is granted. Upon
remittitur issuance, the clerk is to delete the restitution and parole
restitution fines from the abstract of judgment. The
superior court clerk is to then serve a
copy of the corrected abstract of judgment on the Department of Corrections and
Rehabilitation.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
KRIEGLER,
J.
MINK,
J.
name="_ftn1" title=""> [1]
All future statutory references are to
the Penal Code unless otherwise indicated.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
