Opinion
C081585
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LAMONTE WATSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF15-217)
Defendant Daniel Lamonte Watson was sentenced to the middle term for battery to a cohabitant, having suffered a prior conviction for the same offense. During sentencing, the trial court inadvertently imposed a three-year term (the authorized middle term is four years). When the error was brought to the trial court's attention, the court sentenced defendant nunc pro tunc to the four-year middle term.
On appeal defendant contends he was deprived of his right to counsel during that resentencing. He also challenges the trial court's characterization of the sentencing error as clerical error. We disagree and shall affirm.
PROCEDURAL BACKGROUND
In May 2015 defendant pleaded no contest to inflicting corporal injury on a former spouse, having a prior conviction for the same offense. (Pen. Code, § 273.5 subd. (f)(1).) He was granted probation and ordered to complete a residential treatment program as a condition of probation. But defendant failed to start the program.
Before the hearing to revoke probation, the trial court appointed conflict counsel for defendant. At the hearing, the trial court (Scrogin, J.) found defendant had violated his probation conditions.
Defendant was then appealing his prior entry of his plea. --------
At sentencing on the violation of probation, the trial court (Scrogin, J.) granted defendant one last opportunity to complete a program. It reinstated probation and ordered defendant to complete a program. The court also imposed and then stayed a three-year term. In doing so, the court explained, "[T]his is a midterm case. Due to the age of the felony conviction, I will impose the midterm of three [sic] years . . . ." The court then suspended the term, pending successful completion of probation.
The probation report prepared for sentencing had incorrectly presented the sentencing range for corporal injury with a prior (Pen. Code, § 273.5, subd. (f)(1)) as two, three, and five years, rather than two, four, and five years. The probation report had recommended the five-year upper term.
Following sentencing in September 2015, defendant enrolled in a program, but six days later he left the program, and another petition to revoke probation was filed and a bench warrant issued. A revocation hearing was held on October 23 and October 29, 2015, before a different judge (Wirtschafter, J.). At the October 23, 2015 hearing, the trial court appointed the public defender to represent defendant. Defendant admitted the probation violation, and the trial court (Wirtschafter, J.) lifted the stay on the previously imposed three-year sentence.
Several months later, the Department of Corrections and Rehabilitation wrote the trial court advising that the sentencing range for corporal injury with a prior is two, four, or five years, and requested clarification.
On March 7, 2016, a hearing was held before Judge Scrogin, who originally imposed and stayed the three-year term. The court began by reappointing the public defender to represent defendant. Defense counsel told the court defendant had previously been represented by conflict counsel. Defendant agreed, but noted that he had been represented by "somebody else" when the sentence stay had been lifted. Neither defendant nor the public defender indicated a conflict still existed between defendant and the public defender's office.
The trial court then explained, "This court picked the midterm. It was shown on page 6 [of the probation report], but I should have caught it. The midterm was shown to be three years. It's four. So I picked the midterm of three years, and I suspended it. And then when the defendant was found in violation again, [the other judge] imposed it. It's a sentencing error. [¶] . . . [¶] What I'm inclined to do is—since I indicated I was sentencing the defendant to the midterm, I'm inclined to impose the midterm, but it's four years."
To defense counsel, the trial court said, "I wanted to give you an opportunity to be heard and maybe reset it." It asked counsel, "Do you want another date or proceed right now?" Defense counsel responded, "Right now." Counsel declined an opportunity to be heard.
Describing the error as a "clerical error," the court imposed the four-year term nunc pro tunc.
Defendant interjected, "I just don't understand why I get more time for something that . . . wasn't my fault." The trial court told defendant to file his appeal, adding, "Probation recommended the upper term of five years. I disagreed with them. But I picked the midterm. It was listed as being three [years] on page 6 [of the probation report]. On other types of domestic violence cases, it is three years. [¶] So nobody caught it. I should have caught it, and I should have caught it back then. So I fixed it. It was my intent all along to give you the midterm. . . . [¶] So I'm now imposing what I originally intended."
Defendant timely appealed and obtained a certificate of probable cause. (Pen. Code, § 1237.5.)
DISCUSSION
1.0 Defendant Was Not Deprived of His Right to Counsel
On appeal, defendant first contends the trial court violated his constitutional right to assistance of counsel because his conflict counsel was not present when he was sentenced nunc pro tunc. He is mistaken.
Conflict counsel represented defendant in September 2015 on his alleged violation of probation, at a time when defendant's first appeal was pending. In October 2015, when defendant appeared on new allegations of violating his probation, the public defender was appointed and represented defendant through his sentencing on October 29, 2015. Defendant was again represented by the public defender at the March 7, 2016 resentencing hearing, and there is no indication his counsel labored under a conflict. At the March hearing, the trial court began by reappointing the public defender to represent defendant. Defense counsel told the court that defendant had previously had conflict counsel. Defendant agreed, but noted that he had been represented by "somebody else" when the sentence stay had been lifted. (As noted, he had been represented by the public defender at that hearing.) Neither defendant nor the public defender indicated a conflict still existed between defendant and the public defender's office as of March 2016.
Accordingly, this contention has no merit.
2.0 The Trial Court Properly Corrected a Clerical Error
Defendant next contends the trial court's characterization of the sentencing error as clerical was factually and legally wrong. We disagree.
"A court has inherent power to correct clerical errors to make court records reflect the true facts." (People v. Jack (1989) 213 Cal.App.3d 913, 915.) "[C]ases distinguish between clerical error which can be corrected by amendment and judicial error which can only be corrected by appropriate statutory procedure." (Ibid.) "Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion." (Ibid.) "Clerical error can be made by a clerk, by counsel, or by the court itself." (Ibid.)
Here, the erroneous imposition of a three-year term was inadvertent. The record reflects the trial court had originally intended to impose the middle term, rather than the upper term recommended by probation. The court mistakenly believed the middle term was three years. At resentencing the trial court articulated this: "It was my intent all along to give you the midterm. . . . [¶] So I'm now imposing what I originally intended." It added, "[I] should have caught it back then."
Under these circumstances, imposition of the three-year term did not involve the exercise of judicial discretion. As such, the error was clerical, and the trial court properly corrected it. (See People v. Reyes (1989) 212 Cal.App.3d 852, 856, 858 [trial court properly resentenced defendant to an increased term, after the trial court erroneously stayed a portion of the defendant's term]; People v. Brown (1987) 193 Cal.App.3d 957, 961 ["where the sentence imposed is not authorized by the statutes governing sentencing, the sentence is illegal and no bar to subsequent imposition of a greater sentence"]; see also People v. Jackson (1981) 117 Cal.App.3d 654, 659-660 [trial court ordered imposition of the middle term, but inadvertently imposed four-year, rather than the two-year midterm; appellate court modified the judgment to impose the authorized two-year term]; People v. Levels (1989) 209 Cal.App.3d 410, 423-424 [appellate court modified sentence to impose the proper two-year term, when the trial court inadvertently imposed a three-year term for a middle term sentence].)
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.