Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA310691, William N. Sterling, Judge.
ORIGINAL PROCEEDING; application for a writ of habeas corpus. Petition denied.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant and petitioner Tiffany Willis challenges the judgment entered following the revocation of her probation and imposition of a prison sentence. She contends the trial court lost its authority to revoke her probation by terminating her probation several months earlier. We affirm the judgment and deny the habeas corpus petition.
BACKGROUND
Defendant and two companions were arrested for selling rock cocaine to an undercover police officer on October 26, 2006.
Defendant was charged with the sale of cocaine base. (Health & Saf. Code, § 11352.) The felony complaint alleged that she had previously been convicted of violating Penal Code section 245 in Los Angeles Superior Court case No. BA214194. At the preliminary hearing, defense counsel Michelle Cheng, Deputy Alternate Public Defender, and the prosecutor agreed that fingerprint records demonstrated that defendant was not the person convicted in BA214194. Nevertheless, the prior conviction allegation based on BA214194 was included in the information.
On January 18, 2007, defendant pleaded nolo contendere and was placed on formal probation for three years. She did not admit the prior conviction allegation.
The trial court revoked defendant’s probation in February 2007, then reinstated it in April 2007. The court again revoked her probation in September 2007 and issued a bench warrant for defendant’s arrest. The probation report indicates the revocation was based upon defendant’s departure from a court-ordered drug treatment program and failure to report to her probation officer. Defendant was arrested on the bench warrant in January 2008. (All further date references pertain to 2008.)
On January 29, defendant appeared at a probation violation hearing that apparently pertained to both BA214194 and BA310691. The probation report prepared for that hearing referred to both cases, recited a history of probation violations and revocations in both cases, concluded that defendant was again in violation of her probation in both cases, and recommended “that the defendant be found in violation of probation and that sentence previously imposed and suspended be placed in full force and effect.” At the hearing, the trial court noted that in BA214194, execution of a three-year prison sentence had been suspended. The court offered to terminate probation in BA310691 and impose a three-year prison sentence in BA214194. No one at the hearing referred to the date of conviction in either case or the nature of the conviction, apart from a single reference by the court to the “other case” as “just a 11352.” Defendant, who was represented by a different attorney from the Alternate Public Defender’s office, accepted the court’s offer and admitted violating her probation, without reference to either case number. The court terminated probation in BA310691 and sentenced defendant to three years in prison in BA214194.
On July 18, the trial court conducted a hearing to address the propriety of its disposition. The parties agreed that defendant was not the person who had been convicted in BA214194. The court made the following nunc pro tunc orders: (1) rescinding imposition of sentence in BA214194, (2) voiding the January 29 order terminating probation in BA310691, (3) finding defendant in violation of her probation in BA310691, and (4) sentencing defendant to three years in prison in BA310691. The court found that “defendant entered into an agreement for a three-year... prison term, but whether intentionally or inadvertently misled the court into believing case BA214194 belonged to her.” Although the court acknowledged that “we don’t have any evidence that Ms. Willis knew and fraudulently misrepresented that the BA214194 case was hers and it does not make a whole lot of sense that she would do that intentionally,” the court believed that the interest of justice and Inez v. Superior Court (1959) 167 Cal.App.2d 791 (Inez) supported its rulings. Defendant objected that probation had previously been terminated in BA310691 and that Inez required fraud or deceit. The court ordered the Department of Corrections and Rehabilitation to apply to BA310691 all the credit defendant had accrued on BA214194.
DISCUSSION
Probation may be revoked only during the term of probation. (Pen. Code, § 1203.3, subd. (a); In re Daoud (1976) 16 Cal.3d 879, 882.) Defendant contends that the trial court lacked authority to revoke her probation and sentence her to prison in BA310691 on July 18 because it terminated her probation, albeit erroneously, on January 29. She argues that the court improperly attempted to correct judicial error by means of a nunc pro tunc order and that Inez, supra, 167 Cal.App.2d 791, was inapplicable because “there is no evidence of an intentional fraud perpetrated by the defendant.” Defendant’s petition for writ of habeas corpus asserts the same claim and arguments. The Attorney General argues that the trial court simply committed a clerical error by using the wrong case number in its January 29 order—an error subject to correction by means of a nunc pro tunc order. The Attorney General alternatively argues that the court’s July 18 order was proper because “the original sentence was void on its face,” the January 29 order resulted from a fraud upon the court, and defendant “sought and consented to the court’s power to sentence her to a three-year prison term for her probation violation and, as such, she is estopped to complain that the ensuing action was in excess of the court’s jurisdiction.”
1. Correction by nunc pro tunc order
A court has inherent power to correct a clerical error in its records by a nunc pro tunc order. (In re Candelario (1970) 3 Cal.3d 702, 705.) But judicial errors cannot be so corrected. (Ibid.) “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.) “‘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. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?’” (Estate of Eckstrom (1960) 54 Cal.2d 540, 544.) “It is only when the form of the judgment fails to coincide with the substance thereof, as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order.” (Id. at p. 545.) “‘[T]he court can only make the record show that something was actually done at a previous time; a nunc pro tunc order cannot declare that something was done which was not done.’” (Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256.) “‘Although grounds may exist for opening, modifying, or vacating the judgment itself, in the absence of such grounds, the court may not, under the guise of an amendment of its records, revise or change the judgment in substance and have such amended judgment entered nunc pro tunc.... A nunc pro tunc order is not appropriate to rescue subjective judicial intentions when a judge failed in any way to act on those intentions in entering judgment.’” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891, italics omitted.)
The trial court’s July 18 order attempted to correct judicial, not clerical error. The court had not, as the Attorney General argues, simply cited the wrong case number in its January 29 order. The court’s minute order for January 29 accurately reflected the order that the court in fact made that day: it terminated probation in BA310691 and imposed the previously suspended sentence in BA214194. Obviously, the court would have ruled differently if it had known that BA214194 was not defendant’s case. But the court did not simply misspeak as to the case number. Sentence had not been pronounced in BA310691, yet the court did not sentence defendant in that case, but merely imposed the previously suspended sentence in BA214194. The trial court’s actions with respect to BA214194 thus differed than the actions it would have taken if it had been sentencing defendant to a three-year term for BA310691. And a term of three years represented the middle term for a violation of Penal Code section 245, but the low term for a violation of Health and Safety Code section 11352. Thus, the July 18 order entailed exercising discretion and performing a different function that had not already been performed on January 29. The July 18 order did not merely substitute the correct case number; it attempted to revise history by declaring that the trial court had done something on January 29 that had not, in fact, been done. This was an improper and legally ineffective use of a nunc pro tunc order.
2. Judgment and order correctable because void
Without question, the January 29 judgment in BA214194 was void. “[A] judgment may not be entered either for or against a person who is not a party to the proceeding, and any judgment which does so is void to that extent.” (In re Wren (1957) 48 Cal.2d 159, 163.) The parties agree that the trial court was empowered to relieve defendant from incarceration under the judgment in BA214194.
But no grounds exist for concluding that the July 18 order terminating probation in BA310691 was also void. That case belonged to defendant. The trial court clearly had jurisdiction over the subject matter and parties and could terminate defendant’s probation under Penal Code section 1203.3, subdivision (a). It may have made an error in doing so, but that error did not render the order void.
3. Fraud on the court (Inez)
In Inez, supra, 167 Cal.App.2d 791, upon which the trial court relied, probationer Inez told the court he intended to move home to the Philippines with his family. The court granted Inez permission to leave the country and stated that his probation would be terminated when he left the United States to become a resident of the Philippines. The court’s minute order stated, “‘Probation to be terminated upon his leaving the United States. Released.’” (Id. at p. 792.) Inez departed for Manila with a temporary visa, left his family and belongings in Los Angeles, and returned to Los Angeles after spending less than three weeks in the Philippines. Over a year later, Inez appeared for a violation hearing, at which time the trial court restored his probation. (Id. at pp. 792–793.)
In his writ petition, Inez contended that because the trial court had terminated his probation, it lacked jurisdiction to vacate the order of termination and restore his probationary status. The Court of Appeal concluded that “the court was warranted in revoking its prior order terminating probation by reason of the fact that it had been procured by the petitioner by fraud and deceit practiced upon the court. It is clear that the court’s action in modifying probation so as to permit petitioner to return to the Philippine Islands and providing that probation should terminate upon his leaving the United States was made upon the representation of petitioner (and his then counsel) that it was his purpose and intention to leave the United States and permanently establish his residence in the Philippines. In view of the evidence that petitioner applied only for a visitor’s permit, representing in so doing that he would be absent from the United States for approximately two months; that he left his wife and child in Los Angeles, as well as his furniture and other possessions, and that he remained in the Philippines for only 17 days, the court was warranted in concluding, as it apparently did, that at the time the petitioner applied for a modification of probation he had no intention of permanently leaving the United States for the purpose of establishing residence in the Philippines and that his representations to this effect were made for the purpose of deceiving the court in order to induce it to grant petitioner’s motion.” (Inez, supra, 167 Cal.App.2d at p. 793.)
The record here does not include evidence of fraud, and the trial court did not find that defendant intentionally misled it. Unlike the situation in Inez, nothing indicates that defendant or her attorney suggested, requested, or was otherwise responsible for the court’s proposal to terminate probation in BA310691. As far as the record reveals, the state was ultimately responsible for erroneously placing BA214194 before the court for possible probation revocation alongside defendant’s actual case (BA310691). The prosecution knew and acknowledged at the preliminary hearing in BA310691 that BA214194 was not defendant’s case. Yet it failed to correct the official records or its own records, or even remove BA214194 as a prior conviction allegation when it filed the information in BA310691. It not only failed to bring the error to the court’s attention on January 29, it actively sought revocation on both cases. Defense counsel also shares in the blame, as does defendant, but the transcript of the probation revocation hearing reveals no description of the nature or date of the conviction in BA214194, let alone the facts giving rise to it, that might have caused defendant to realize that the mere number to which the court referred was not her case. Defendant was apparently a drug addict with a significant criminal history. Her failure to realize that she was not the defendant in a case referenced only by a case number is neither surprising nor blameworthy. Her ultimate erroneous acceptance of the deal the court offered her on January 29—after the People improperly and erroneously placed her in the position of being faced with probation revocation and a prison sentence in BA214194—cannot be considered an affirmative attempt to mislead the court in any sense remotely comparable to the conduct in issue in Inez. The Attorney General’s arguments that defendant committed fraud upon the court by knowingly admitting a probation violation in a case that was not hers are a misinterpretation of the record and reveal a failure to reflect upon the source of the error that occurred in this case.
As defendant notes, Inez has never been cited in a published (or unpublished, as far as we can tell) decision and thus has never been applied to facts such as those presented here. Given the dissimilarity between the conduct of Inez and that of defendant in this case, we do not believe the trial court properly extended Inez to the confusing situation confronting it in the present case.
4. Retention of jurisdiction over defendant’s probation
Notwithstanding the inapplicability of the theories discussed thus far, we conclude the trial court had jurisdiction over defendant in BA310691 on July 18 and thus had authority to sentence her to prison on that date.
“Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court’s jurisdiction of the subject matter. The statutes themselves contemplate that such fundamental jurisdiction continues, for they provide for the court’s determination of certain matters after the end of the probationary term.” (In re Griffin (1967) 67 Cal.2d 343, 347.) “The jurisdictional concept involved in the cases holding that the court is without power to revoke probation after the end of the probationary term is not lack of jurisdiction of the cause but excess of jurisdiction.” (Ibid.)
The trial court did nothing on January 29 that terminated its jurisdiction. Although it sent defendant to prison for BA214194, it did not do so in BA310691. Until the court surrendered defendant to prison officials and the execution of her sentence in BA310691 commenced, the trial court retained fundamental jurisdiction over the subject matter of the action. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1427.) Although the court terminated defendant’s probation in BA310691, it did not dismiss the case. (Cf. Pen. Code, § 1203.4, subd. (a).) The remainder of her probation in BA310691 was, essentially, in suspension due to her incarceration for BA214194. The court acted within its powers and not in excess of its jurisdiction on July 18 when it revoked her probation in BA310691 based upon her January 29 admission, without reference to any case number, that she had violated the terms of her probation. This necessarily referred to BA310691, which was the only case in which she had been granted probation. Thus, the court properly gave effect to the prior agreement that led to defendant’s January 29 admission by sentencing defendant to the low term of three years and sending her to prison. Defendant received exactly the same prison commitment for which she had bargained, and the court’s order regarding prison credits ensured she was not harmed by the court’s prior mistake.
Accordingly, we affirm the judgment entered after the court discovered and corrected its error. Although the court’s July 18 order cannot be given nunc pro tunc effect, the trial court prevented any prejudice to defendant through its order regarding attribution of defendant’s prison credits.
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
We concur: ROTHSCHILD, J., CHANEY, J.