In re McKnight

Filed 12/14/07 In re McKnight CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Sharon J. Waters, Judge. Writ granted.

Marcellus Levon McKnight, in pro. per.; and Richard Schwartzberg, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons and Julie L. Garland, Senior Assistant Attorneys General, Jeffrey J. Koch and Barry Carlton, Supervising Deputy Attorneys General, for Respondent.

Petitioner seeks habeas corpus relief to set aside an order entered nunc pro tunc that imposed a restitution fine in the amount of $6,000 pursuant to Penal Code section 1202.4, subdivision (b). We agree that the superior court did not have the authority to modify the sentence that was imposed, and, accordingly, grant the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was found guilty of assault with a firearm, robbery, and felony evading a peace officers motor vehicle. The jury also found true the allegations that he was armed with a firearm, personally used a firearm, and committed the charged offenses for the benefit of a criminal street gang. He was sentenced to a total prison term of 15 years.

At the sentencing hearing on June 23, 2000, the Riverside County Superior Court ordered petitioner to pay victim restitution in the amount of $500 and a restitution fine in the amount of $6,000. The latter fine was stayed pursuant to Penal Code section 1202.45.

As reflected in the reporters transcript, the court stated, Restitution will be ordered to the victim in this case in the amount of $500. And additionally, the Court will impose a restitution fine in the amount of $6,000. When defense counsel requested that the restitution fine be stayed pending successful completion of . . . parole, the court responded, Actually, the second fine in the amount of 6,000 will be stayed, and thats pursuant to 1202.5.

The minute order from the hearing indicates that the restitution fine of $500 was imposed pursuant to Penal Code section 1202.4, subdivision (b), and a parole restitution fine of $6,000 was imposed pursuant to Penal Code section 1202.45.

This court affirmed petitioners conviction in a nonpublished opinion. (People v. McKnight (June 6, 2001, E027521).) Neither petitioner nor the People raised an issue on appeal concerning the restitution fine.

Prompted by an inquiry from the Department of Corrections,^[1]the superior court held an ex parte hearing on March 8, 2005, to reconsider the matter of the restitution fines. Neither a representative for the People nor petitioner was present at this hearing. The superior court concluded that the June 23, 2000, minute order did not correctly reflect the courts order and ordered it corrected nunc pro tunc. The nunc pro tunc order imposed a restitution fine of $6,000 pursuant to Penal Code section 1202.4, subdivision (b), and a parole revocation fine of $6,000 pursuant to Penal Code section 1202.45 that was suspended unless parole is revoked.

II. DISCUSSION

Petitioner has filed this petition challenging the nunc pro tunc order imposing the $6,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b).

As a preliminary matter, we reject the contention raised in the Peoples informal response that we should deny this petition because petitioner failed to exhaust his administrative remedies. Because petitioner is ultimately challenging the superior courts order, there were in effect no administrative remedies available to him.

The People also contend that the superior court merely made a clerical error when it imposed a $500 restitution fine on June 23, 2000, rather than $6,000. It notes that $6,000 would be the amount of the fine if the superior court used the suggested calculation indicated in Penal Code section 1202.4, subdivision (b). In addition, the parole revocation fine shall be set at the same amount as the restitution fine assessed under that section.

Trial courts do not have unlimited authority to modify a sentence once imposed. Generally speaking, once a defendant begins serving a sentence, the sentencing court loses jurisdiction to modify the sentence it imposed. (See People v. Karaman (1992) 4 Cal.4th 335, 344, 347, 350; People v. Howard (1997) 16 Cal.4th 1081, 1089.) It is true that courts have inherent authority to correct clerical errors in a sentence at any time. (In re Candelario (1970) 3 Cal.3d 702, 705.) However, this nunc pro tunc authority is limited to true clerical errors and does not allow a court to declare that something was done which was not done. (People v. Borja (2002) 95 Cal.App.4th 481, 485.) 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 . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. (In re Candelario, supra, 3 Cal.3d at p. 705.) The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered.  (Ibid.) An example of judicial error is found in People v. Borja, supra, 95 Cal.App.4th 481. There, the defendant had been initially granted probation conditioned in part on a jail sentence of 365 days. Almost six years later, after the defendant had completed his probation, the defendant sought and obtained a nunc pro tunc modification of the probation condition to a sentence of 364 days. This change was important to avoid the defendants deportation for an aggravated felony under federal immigration laws. (Id. at pp. 483-484.) The appellate court found the change invalid, because the court was not correcting a clerical order. (Id. at p. 485.)

Here, the reporters transcript of the June 23, 2000, hearing clearly shows that the superior court imposed fines of $500 and $6,000, and distinguished the second fine as the $6,000 fine that was stayed pending revocation of parole. Thus, we are unable to conclude that the superior court was simply correcting a clerical error when it increased the amount of the restitution fine.

In its formal return, the People suggest that the $500 amount was intended by the trial court as direct victim restitution pursuant to Penal Code section 1202.4, subdivision (a)(3)(B), rather than a restitution fine under Penal Code section 1202.4, subdivision (a)(3)(A). If this court does anything with respect to the trial courts 2005 order, the People contend that we should direct the order reflect imposition of $6,000 restitution and parole revocation fines in addition to $500 in direct restitution. We must reject this proposal. There is no indication in the record that the victim suffered losses in the exact amount of $500, and the concept of clerical error cannot be contorted in a manner to justify imposing a penalty in this amount in addition to a fine in the amount of $6,000. While the sentencing court referred to the $500 as victim restitution, it also described both the $500 and $6,000 amounts as fines.

In conclusion, we cannot find that the clerk made an error in recording the superior courts orders on June 23, 2000, but rather must find that the superior court made a judicial error in imposing the fines. Therefore, it did not possess the authority on March 8, 2005, to change a final order.

III. DISPOSITION

Accordingly, the petition for writ of habeas corpus is granted and the Riverside County Superior Court is directed to set aside its order of March 8, 2005, and to reinstate the original order imposing a restitution fine of $500 pursuant to Penal Code section 1202.4, subdivision (b), and a parole revocation fine in the amount of $6000, stayed pursuant to Penal Code section 1202.45.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.

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^[1] This department is currently named the Department of Corrections and Rehabilitation.