People v. McCowan CA1/4

Filed 8/27/21 P. v. McCowan CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A157835
v.
RAYMOND BEPLAND MCCOWAN, (San Mateo County
Super. Ct. No. SC071579A)
Defendant and Appellant.
Penal Code section 1170, subdivision (d) (section 1170(d))1 authorizes a
trial court to modify a defendant’s sentence upon the recommendation of the
Secretary of the Department of Corrections and Rehabilitation (CDCR) that
it “recall the sentence and commitment previously ordered and resentence
the defendant in the same manner as if they had not previously been
sentenced . . . .” (§ 1170, subd. (d)(1); People v. McCallum (2020) 55
Cal.App.5th 202, 205–206 (McCallum).) In the case before us, the CDCR
pointed out to the trial court a clerical error in an abstract of judgment and
asked for clarification. The trial court denied the request of defendant
Raymond Bepland McCowan to be resentenced under section 1170(d),
concluding the CDCR’s letter was not a recommendation for recall and
1 All references are to the Penal Code.
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resentencing. We conclude the trial court correctly concluded it lacked
jurisdiction to resentence McCowan, and accordingly we dismiss the appeal
as from a nonappealable order.
BACKGROUND
A jury convicted McCowan in October 2012 of willful infliction of injury
on his spouse (§ 273.5, subd. (a); count 1) and assault with a deadly weapon, a
hammer (§ 245, subd. (a)(1); count 2) and found true an allegation that he
personally used a deadly and dangerous weapon, a hammer, in the
commission of count 1 (§ 12022, subd. (b)(1)). The court found that counts 1
and 2 were serious felonies within the meaning of section 1192.7, subdivision
(c)(23), and found true allegations that McCowan had suffered prior strike
(§ 1170.12, subd. (c)(2)) and serious felony (§ 67, subd. (a)) convictions
between 1982 and 1989.
On May 9, 2013, the trial court sentenced McCowan on count 1 to 25
years to life in prison under the Three Strikes Law. It imposed the same
sentence for count 2 but stayed it pursuant to section 654. On the
enhancements, the court imposed two additional five-year terms for prior
convictions and an additional one year for use of a weapon, for a total term of
36 years. The court ordered the sentence in this case to run concurrently
with a separate sentence McCowan was then serving based on a conviction in
another county. This sentence was reflected in the minute order. McCowan
appealed and Division Three of this court affirmed the judgment in 2015
(People v. McCowan (Mar. 11, 2015, A138648) [nonpub. opn.]), and the
Supreme Court denied review on July 8, 2015 (S225903).
The abstract of judgment contained a clerical error that was apparently
not discovered until long after the judgment was final. Rather than
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indicating the sentence for count 2 was stayed as ordered by the trial court,
the abstract stated it was concurrent with the sentence for count 1.
In 2019, a correctional case records manager in the CDCR’s Division of
Adult Institutions Legal Processing Unit wrote a letter informing the trial
court that “the Abstract of Judgment and/or Minute Order may be in error, or
incomplete,” because the abstract of judgment reflected a concurrent sentence
for count 2 and the sentencing transcript and minute order reflected a stayed
sentence. The letter asked the trial court, “Please clarify,” and in a final
paragraph said, “Please review your file to determine if a correction is
required. When notified by the Department of Corrections and
Rehabilitation that an illegal sentence exists, the trial court is entitled to
reconsider all sentencing choices,” citing People v. Hill (1986) 185 Cal.App.3d
831 (Hill). The CDCR asked to be provided with a certified copy of any
minute order or modified abstract of judgment.
Based on the CDCR’s letter, McCowan asked the trial court to
resentence him and strike the five-year enhancements under section 667,
subdivision (a), explaining that, under a change in the law made after he was
sentenced, trial courts now have discretion to strike such enhancements.
(People v. Garcia (2018) 28 Cal.App.5th 961, 971; Stats. 2018, ch. 1013, § 1.)
The trial court denied McCowan’s request on June 26, 2019, explaining
that the case was final, that the CDCR’s letter merely pointed out a clerical
error in the abstract of judgment, and that the court did not have authority
under section 1170(d) to resentence him and was not doing so. The court
ordered the abstract of judgment corrected to reflect a stayed sentence for
count 2. McCowan purports to appeal from this order.
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DISCUSSION
Section 1170(d) provides an exception to the general rule that the court
loses jurisdiction to resentence once execution of sentence has begun. (Dix v.
Superior Court (1991) 53 Cal.3d 442, 455.) A trial court may recall a
sentence and resentence a defendant on its own motion within 120 days of
the date of commitment, or upon the recommendation of specified persons
including the CDCR’s secretary “at any time.” (§ 1170(d)(1); People v.
Magana (2021) 63 Cal.App.5th 1120, 1125–1126 (Magana).)
When a defendant is resentenced under section 1170(d), the trial court
is entitled to consider the entire sentencing scheme (Hill, supra, 185
Cal.App.3d at p. 834; Magana, supra, 63 Cal.App.5th at p. 1124; accord,
People v. Buycks (2018) 5 Cal.5th 857, 893–895 [under § 1170(d),
resentencing court reevaluates applicability of enhancements at the time of
resentencing].) Applying this rule, the court in Hill concluded that, after the
CDCR notified the trial court a sentence was illegal because it contained a
consecutive upper term for one of the subordinate counts, the court was not
limited to striking the illegal portion of the sentence but could properly
recalculate the terms for all subordinate counts. (Hill, at pp. 833–834.)
McCowan contends the mention in the CDCR’s letter of Hill’s rule
served to return jurisdiction to resentence him under section 1170(d). That is
so, he argues, because the letter implicitly suggested a concurrent sentence
would be illegal under section 654. We are unpersuaded. Despite the
reference to Hill, which the trial court characterized as “boilerplate,” the
letter did not suggest the sentence imposed was illegal or should be recalled;
rather, it asked for clarification of the discrepancy between the sentencing
record and the abstract of judgment. And the transcript of the sentencing
hearing leaves no doubt that the court stayed sentence on count 2 under
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section 654 and that the abstract of judgment’s specification of concurrent
terms was a mere clerical error.
Resentencing is not necessary to remedy clerical error in an abstract of
judgment. “An abstract of judgment is not the judgment of conviction; it does
not control if different from the trial court’s oral judgment and may not add
to or modify the judgment it purports to digest or summarize.” (People v.
Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).) A court may correct a clerical
error in an abstract of judgment at any time. (Ibid.)
People v. Humphrey (2020) 44 Cal.App.5th 371 (Humphrey)
demonstrates that an order remedying such a clerical error is properly made
without recalling the sentence or resentencing and does not affect the finality
of the judgment, even when it is the CDCR that points out the error. The
defendant there was sentenced for several offenses, with a total term of 19
years, but the listing of the parts of the term attributable to the individual
counts in the abstract of judgment did not track the sentence imposed. (Id. at
pp. 374–375.) A correctional case records manager in the CDCR’s Legal
Processing Unit later wrote to the superior court indicating the abstract of
judgment might contain an error. (Id. at p. 375.) The trial court treated the
matter as the correction of a clerical error in the abstract of judgment and
ordered it amended to reflect the correct sentence. (Id. at pp. 375–376.) The
defendant moved for resentencing, arguing the court should exercise its
newfound discretion to strike a firearm enhancement under a recently
enacted law, and the trial court denied the motion on the ground the new law
did not apply to cases that were already final. (Id. at p. 376.)
On appeal, the defendant argued the trial court’s action at the hearing
at which it amended the abstract of judgment constituted a recall of his
sentence and resentencing under section 1170(d) on the recommendation of
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the CDCR, and his case was therefore not final. (Humphrey, supra, 44
Cal.App.4th at p. 377.) The appellate court rejected this contention,
concluding that the court “merely was correcting the abstract of judgment”
and “did not change [the defendant’s] sentence whatsoever.” (Id. at p. 380.)
A similar result is seen in the recent case of Magana, in which the
CDCR asked the trial court whether “ ‘a correction is required,’ ” without any
mention of a recall, resentencing, or section 1170(d)(1); because the CDCR did
not recommend a recall and more than 120 days had passed since the date of
commitment, the appellate court concluded, “the trial court lacked authority
to recall defendant’s sentence.” (Magana, supra, 63 Cal.App.5th at pp. 1125–
1126.) The order correcting the abstract therefore did not affect the finality
of the judgment and the court could not retroactively apply subsequent
changes in the law allowing enhancements to be stricken. (Id. at pp. 1126–
1127.) The court contrasted cases in which the Secretary of the CDCR
specifically recommended a trial court resentence a defendant. (Id. at
p. 1125, citing McCallum, supra, 55 Cal.App.5th at p. 206 [Secretary
recommended sentence be recalled based on defendant’s exemplary conduct
in prison]; People v. Arias (2020) 52 Cal.App.5th 213, 217 & fn. 4 [Secretary
recommended recall based on legal error in imposition of enhancements];
People v. Loper (2015) 60 Cal.4th 1155, 1158 (Loper) [recommendation of
recall under § 1170, subd. (e) based on defendant’s terminal illness].)
Humphrey and Magana are persuasive, and we follow them here. The
problem pointed out in the CDCR’s letter was not an illegality or error in
McCowan’s sentence, it was a simple clerical error—a check placed in the
wrong box of the abstract of judgment that purported to summarize the
sentence. (See Mitchell, supra, 26 Cal.4th at p. 185; compare Hill, supra, 185
Cal.App.3d at p. 833 [illegal sentence].) McCowan makes no claim the
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sentence imposed and reflected in the sentencing transcript and minute order
was illegal or erroneous. The only problem was that the abstract of judgment
did not conform to it. We conclude that the request for clarification by a
correctional case records manager did not constitute a “recommendation of
the secretary” that the trial court “recall the sentence and commitment
previously ordered and resentence the defendant.” (§ 1170(d).) The trial
court correctly ruled that it had no jurisdiction to recall the sentence.
Having reached this conclusion, we consider whether the proper
disposition is to affirm the order or dismiss the appeal. The court in Magana
recently concluded that where a trial court merely corrected a clerical error in
the abstract of judgment pointed out by the CDCR, the court lacked
jurisdiction to resentence and, as a result, the order denying a motion for a
resentencing hearing did not affect defendant’s substantial rights and was
not an appealable order. (Magana, supra, 63 Cal.App.5th at pp. 1127–1128,
citing People v. Chlad (1992) 6 Cal.App.4th 1719, 1725–1726; see also People
v. Fuimaono (2019) 32 Cal.App.5th 132, 135; compare People v. Frazier (2020)
55 Cal.App.5th 858, 863, fn. 2 [order declining to follow Secretary’s
recommendation is appealable]; Loper, supra, 60 Cal.4th at p. 1158 [where
proceeding to recall sentence under compassionate release provision of
section 1170, subd. (e) is “properly initiated” by prison authorities, order
denying CDCR recommendation is appealable].)
Here, more than 120 days had passed since McCowan was committed,
the judgment was final, and the Secretary of the CDCR did not point out an
illegality or otherwise recommend recall of his sentence. The trial court
therefore lacked jurisdiction to resentence McCowan. The correct disposition
is not to affirm the order but to dismiss the appeal as from a nonappealable
order.
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DISPOSITION
The appeal is dismissed.
TUCHER, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. McCowan (A157835)
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