People v. Adams CA2/8 ( 2020 )


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  • Filed 9/17/20 P. v. Adams CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
    THE PEOPLE,                                                      B296145
    Plaintiff and Respondent,                               (Los Angeles County
    Super. Ct. No. VA146073)
    v.
    PAUL ADAMS,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Joseph R. Porras, Judge. Affirmed.
    Christine M. Aros, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Steven D. Matthews and Roberta L. Davis,
    Deputy Attorneys General, for Plaintiff and Respondent.
    _______________________
    Sentenced to nine years in state prison pursuant to a
    negotiated plea agreement, Paul Adams appeals the trial court’s
    denial of his motion requesting the court to recall his sentence
    and exercise its discretion under Senate Bill No. 1393 (Stats.
    2018, ch. 1013) to strike the serious felony enhancement imposed
    pursuant to Penal Code1 section 667, subdivision (a)(1). Because
    Adams’s judgment was final prior to the effective date of Senate
    Bill No. 1393, we conclude the trial court lacked jurisdiction to
    grant the motion for resentencing. We also reject Adams’s
    personally filed claim that the court erred by failing to recall the
    sentence pursuant to section 1170, subdivision (d)(1), and his
    assertion of judicial misconduct. We affirm the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    In 2017 Adams was charged with first degree burglary with
    a person present (§ 459), three counts of obtaining money by false
    pretenses (§ 532, subd. (a)), and three counts of theft from an
    elder or dependent adult (§ 368, subd. (d)). In conjunction with
    the burglary charge, the information alleged Adams had suffered
    three prior serious felony convictions for the purposes of section
    667, subdivision (a)(1). It also alleged Adams had suffered three
    prior strike convictions within the meaning of the “Three Strikes”
    law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)).
    On May 3, 2018, Adams entered into a negotiated plea
    agreement. Adams agreed to plead no contest to first degree
    burglary and to admit one prior strike offense and one prior
    conviction within the meaning of section 667, subdivision (a)(1).
    1    All further undesignated statutory references are to the
    Penal Code.
    2
    In exchange, the allegation that a person was present during the
    burglary would be stricken, and Adams would be sentenced to a
    total of nine years in state prison: the low term sentence of two
    years for the burglary, doubled under the Three Strikes law, plus
    a consecutive five-year enhancement under section 667,
    subdivision (a)(1). The trial court accepted the plea agreement
    and orally imposed the agreed-upon sentence.
    The minute order from the sentencing hearing and the
    abstract of judgment did not fully reflect the judgment as
    pronounced. The minute order did not mention the resolution of
    the person present allegation. The abstract of judgment
    incorrectly listed Adams’s offense as “1st Degree Burglary, person
    present” and described the offense as a violent felony.
    On November 21, 2018, Adams filed an informal request
    asking the trial court to correct these errors and other perceived
    inaccuracies in the abstract of judgment. That day, the trial
    court corrected the May 3, 2018 minute order nunc pro tunc to
    state that Adams had not admitted a person was present at the
    time of the burglary. The court also ordered the clerk to prepare
    a corrected abstract of judgment omitting the person present
    language. The amended abstract of judgment, filed December 5,
    2018, no longer stated a person had been present during the
    burglary and did not describe the offense as a violent felony.
    Senate Bill No. 1393 took effect on January 1, 2019. (Stats.
    2018, ch. 1013.) On January 15, 2019, Adams filed a motion in
    which he asked the trial court to recall his sentence and strike
    the five-year enhancement under section 667, subdivision (a)(1)
    pursuant to the new law. The court denied the motion on
    January 25, 2019. Adams appealed.
    3
    We appointed counsel to represent Adams on appeal. After
    examining the record, counsel filed an opening brief raising no
    issues and asking this court to review the record independently
    as required by People v. Wende (1979) 
    25 Cal.3d 436
    . On July 1,
    2019, we advised Adams he had 30 days within which to
    personally submit any contentions or issues he wished us to
    consider. On July 12, 2019, Adams filed a supplemental brief
    raising issues for us to consider on his behalf. He contended the
    trial court’s November 2018 nunc pro tunc order constituted a
    resentencing, meaning the judgment was not yet final when
    Senate Bill No. 1393 became operative on January 1, 2019, and
    the court was statutorily authorized to recall the sentence under
    section 1170, subdivision (d)(1). Adams also alleged the trial
    court engaged in misconduct by correcting the records of the
    sentence by means of a nunc pro tunc order rather than by
    acknowledging the request Adams had filed; by “suppressing”
    Adams’s motion to correct his sentence; and by failing to state
    reasons for its denial of the timely motion to recall the sentence.2
    We asked the parties to submit briefing on two questions:
    was Adams entitled to a remand for the limited purpose of
    allowing the trial court to exercise its discretion whether to strike
    the five-year felony enhancement under section 667, subdivision
    (a)(1) in light of Senate Bill No. 1393; and if so, was he required
    to obtain a certificate of probable cause? Adams’s counsel
    submitted a brief contending Adams was entitled to a remand so
    the trial court could determine whether or not to strike the prior
    2      Separately, Adams filed a petition for writ of habeas corpus
    in propria persona on October 9, 2019 (Case No. B301327). The
    petition will be decided by separate order.
    4
    felony enhancement, and no certificate of probable cause was
    necessary. In their brief, the People argued Adams was not
    eligible for Senate Bill No. 1393 resentencing and the order
    challenged on appeal was not appealable.
    DISCUSSION
    I.    Finality of the Judgment
    Effective January 1, 2019, Senate Bill No. 1393 amended
    section 667, subdivision (a) and section 1385, subdivision (b) to
    grant trial courts discretion to strike or dismiss a prior serious
    felony conviction allegation for the purpose of the formerly
    mandatory five-year enhancement set forth in section 667,
    subdivision (a)(1). (Stats. 2018, ch. 1013, §§ 1–2.) This newly
    granted sentencing discretion may be exercised as to any
    defendant whose conviction is not final as of the effective date of
    the amendment. (People v. Stamps (2020) 
    9 Cal.5th 685
    , 698–699
    (Stamps); In re Estrada (1965) 
    63 Cal.2d 740
    , 742-748.)
    The judgment in this case was entered on May 3, 2018,
    when Adams was convicted and sentenced. (People v. Karaman
    (1992) 
    4 Cal.4th 335
    , 344, fn. 9 [“In a criminal case, judgment is
    rendered when the trial court orally pronounces sentence”];
    People v. Scott (2012) 
    203 Cal.App.4th 1303
    , 1324.) It does not
    appear from the record that Adams obtained a certificate of
    probable cause or appealed his conviction. Accordingly, his
    conviction became final 60 days later, on July 2, 2018. (Cal.
    Rules of Court, rule 8.308(a); People v. Buycks (2018) 
    5 Cal.5th 857
    , 876, fn. 5 [“A judgment becomes final when the availability
    of an appeal and the time for filing a petition for certiorari with
    the United States Supreme Court have expired”]; People v.
    Alexander (2020) 
    45 Cal.App.5th 341
    , 344–345 (Alexander).)
    5
    Adams is therefore ineligible for resentencing under Senate Bill
    No. 1393. (Alexander, at p. 345.)
    Adams argues the court’s nunc pro tunc order of November
    21, 2018, “amended the judgment,” meaning his conviction was
    not final until January 20, 2019. But the court’s nunc pro tunc
    order did not amend the judgment; it corrected the record of the
    judgment so it reflected the true facts of the judgment originally
    rendered. “ ‘The function of a nunc pro tunc order is merely to
    correct 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, italics omitted; In re
    Candelario (1970) 
    3 Cal.3d 702
    , 705 [court has inherent power to
    correct clerical errors in its records but may not, “under the guise
    of correcting clerical error, . . . ‘revise its deliberately exercised
    judicial discretion’ ”].) Accordingly, a nunc pro tunc order cannot
    be used to modify a sentence from that which was intended and
    imposed by the sentencing court. (People v. Borja (2002)
    
    95 Cal.App.4th 481
    , 485.)
    A nunc pro tunc order is effective as of the date of the order
    it corrects. (Sannmann v. Department of Justice (2020)
    
    47 Cal.App.5th 676
    , 683; 7 Witkin, Cal. Procedure (5th ed. 2008)
    Judgment, § 63.p. 598.) Neither the court’s correction of clerical
    error in an abstract of judgment nor the amendment of an
    abstract of judgment alters the judgment’s finality. (People v.
    Humphrey (2020) 
    44 Cal.App.5th 371
    , 379–380.) Accordingly,
    Adams’s judgment became final in July 2018; that finality was
    not disturbed by the November 2018 nunc pro tunc order; and he
    was not eligible for resentencing pursuant to Senate Bill
    No. 1393.
    6
    Section 1237, subdivision (b) authorizes a defendant to
    appeal “[f]rom any order made after judgment, affecting the
    substantial rights of the party.” Because the court lacked
    jurisdiction to grant Adams’s January 2019 motion for
    resentencing, its order denying his motion did not affect his
    substantial rights and is not an appealable postjudgment order.
    (Alexander, supra, 45 Cal.App.5th at p. 345.)3
    II.    Remaining Issues
    As noted, Adams personally filed a supplemental brief
    advising us of issues he wished us to consider. We have
    addressed the question of his eligibility for resentencing under
    Senate Bill No. 1393. Our conclusion that the November 2018
    nunc pro tunc order did not amend the judgment or constitute a
    resentencing is also fatal to Adams’s contention that as of
    January 2019 the trial court had jurisdiction to recall his
    sentence under section 1170, subdivision (d)(1) on its own motion.
    While section 1170, subdivision (d)(1) permits the trial court to
    recall a sentence on its own motion within 120 days of
    commitment, more than 120 days had elapsed since Adams’s May
    2018 commitment by the time he filed his motion in January
    2019. At that time the court no longer possessed jurisdiction to
    3      Our conclusion that Adams is not entitled to a remand for
    resentencing under Senate Bill No. 1393 makes it unnecessary to
    address whether a certificate of probable cause was required. We
    note this question has been resolved recently by the California
    Supreme Court. (Stamps, supra, 9 Cal.5th at pp. 694–698 [no
    certificate of probable cause required when seeking a remand for
    resentencing under Senate Bill No. 1393].)
    7
    recall Adams’s sentence on its own motion under section 1170,
    subdivision (d)(1).
    Adams’s allegations of judicial misconduct ascribe improper
    motives to the trial court in connection with its orders correcting
    the records from the sentencing hearing and denying the motion
    for resentencing. As the above discussion demonstrates, the
    court properly entered a nunc pro tunc order to ensure the
    minute order and abstract of judgment accurately reflected the
    sentencing proceedings, and it also correctly denied the motion
    for resentencing because it lacked jurisdiction to grant the
    requested relief. Adams has not established any misconduct.
    DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    STRATTON, J.
    We concur:
    BIGELOW, P. J.
    WILEY, J.
    8
    

Document Info

Docket Number: B296145

Filed Date: 9/17/2020

Precedential Status: Non-Precedential

Modified Date: 9/18/2020