People v. Amaya, E060218

• Court: California Court of Appeals
• Writing for the Court: RAMIREZ, P.J.
• Citation: 239 Cal.App.4th 379,191 Cal.Rptr.3d 13
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert AMAYA, Defendant and Appellant.
• Docket Number: E060218
• Decision Date: 11 August 2015

239 Cal.App.4th 379
191 Cal.Rptr.3d 13

The PEOPLE, Plaintiff and Respondent
v.
Albert AMAYA, Defendant and Appellant.

E060218

Court of Appeal, Fourth District, Division 2, California.

Filed August 11, 2015
As Modified September 9, 2015
Review Denied December 9, 2015

Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Sharon Rhodes and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

239 Cal.App.4th 381

In 2008, defendant Albert Amaya was found guilty of attempted extortion; two strike priors were found true, and defendant was sentenced, under the “Three Strikes” law as it then stood, to 25 years to life in prison. A gang allegation was also found true, but it had no effect on the total

191 Cal.Rptr.3d 17

sentence, and it was not reflected in the abstract of judgment.

In 2013, defendant petitioned for resentencing under Proposition 36. Because of the gang finding, he was not actually eligible for resentencing. Nevertheless, the prosecutor, defense counsel, and even the clerk all mistakenly assured the trial court that the gang finding had been stricken. The trial court therefore resentenced him to less than the time he had already served, and he was released from prison.

One month later, the People detected the mistake. Defendant was hauled back into court and re-resentenced to 25 years to life.

239 Cal.App.4th 382

Defendant--understandably--appeals, claiming that the trial court had no authority to vacate the reduced sentence. The People respond that the trial court had such authority because the reduced sentence was both unauthorized and void. We cannot say that the reduced sentence was unauthorized, because all of the evidence that was before the trial court at the time indicated that defendant was entitled to resentencing. However, the reduced sentence was void on the face of the record. Accordingly, the trial court had the authority to vacate the reduced sentence and to reimpose the original sentence.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. 2008 Sentencing.

Defendant was charged with witness intimidation (Pen.Code, § 136.1 ), with a gang allegation under Penal Code section 186.22, subdivision (b)(4). He was also charged with attempted extortion (Pen.Code, § 524 ), with a gang allegation under Penal Code section 186.22, subdivision (b)(1).¹

A jury found defendant not guilty of witness intimidation. However, it did find him guilty of attempted extortion, and it also found the related gang allegation to be true.

The clerk stated in the minute order that the gang finding had been made under Penal Code section 186.22, subdivision (b)(4). Actually, it had been made under Penal Code section 186.22, subdivision (b)(1). (Moreover, as we will discuss in the unpublished portion of our opinion, the subdivision that actually applied was Penal Code section 186.22, subdivision (b)(5).)

Defendant admitted two strike priors. (Pen.Code, §§ 667, subds. (b) -(i), 1170.12.) Pursuant to the Three Strikes law as it then stood, the trial court sentenced defendant to 25 years to life.

239 Cal.App.4th 383

At sentencing, the trial court stated that the gang finding did not result in “additional custody time ... since it would only apply to Penal Code [s]ection 2933.1 presentence ... credits.”²

Presumably because the trial court did not impose any determinate or indeterminate

191 Cal.Rptr.3d 18

term on the gang finding, the gang finding was not mentioned in the abstract of judgment.

B. June 2013 Resentencing.

After Proposition 36 was enacted, defendant filed a petition for resentencing pursuant to it.

Because of the gang finding, defendant was not, in fact, eligible for resentencing. (Pen.Code, § 1170.126, subd. (e)(1) ; see Pen.Code, § 1192.7, subd. (c)(28) ; People v. Briceno (2004) 34 Cal.4th 451, 456, 20 Cal.Rptr.3d 418, 99 P.3d 1007.) However, the petition did not mention (and was not required to mention³ ) the gang finding. It did include the abstract of judgment; however, as already noted, the abstract failed to mention the gang finding.

At the hearing on the petition, the prosecutor stated, “No objection to resentencing.” The trial court specifically inquired, “Is there a gang enhancement?” The prosecutor, defense counsel, and the clerk each assured the court that the gang enhancement had been “stricken.” Thus, the trial court found defendant eligible for resentencing. It resentenced him to six years (double the upper term). As he had already served this term, the trial court ordered him released forthwith.

C. December 2013 Re–resentencing.

About a month later, the People filed a motion to recall the sentence. In the caption, they cited Penal Code section 1170, subdivision (d)(1). In the body of the motion, however, they argued only that the June 2013 resentencing had resulted in an unauthorized sentence. While that motion was pending, they also filed a motion to set aside the resentencing order as void.

239 Cal.App.4th 384

In opposition, defendant argued that the error was judicial, not clerical, and therefore not subject to correction.

The trial court granted one or both of the People's motions (it did not specify which). It vacated the resentencing order, reinstated the original sentence, and ordered that the abstract be amended to reflect the gang finding. Thus, the amended abstract reflects that an “enhancement” under Penal Code section 186.22, subdivision (b)(4) was “stayed.” (Capitalization altered.)

II

THE JUNE 2013 RESENTENCING WAS VOID

“Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. [Citations.]” (People v. Karaman (1992) 4 Cal.4th 335, 344, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

However, there are a number of exceptions to this rule.

One such exception is found in Penal Code section 1170.126. This section was enacted in 2012 as part of Proposition 36. Proposition 36 changed the Three Strikes law so that a defendant with two strike priors is no longer subject to an indeterminate term of 25 years to life unless the current offense is also a serious or violent felony. In general, subject to exceptions not relevant here, Penal Code section 1170.126 allows the trial court to resentence

191 Cal.Rptr.3d 19

an inmate who was sentenced under the prior law to 25 years to life for a nonserious, nonviolent offense.

Here, the gang finding caused defendant's current conviction for attempted extortion to be a serious felony. (Pen.Code, § 1192.7, subd. (c)(28).) Hence, he was not eligible for resentencing pursuant to Penal Code section 1170.126. Nevertheless, in June 2013, the trial court did resentence him, and under this very statute. Accordingly, the key question in this appeal is whether there was any exception to the rule against resentencing that allowed the trial court to re-resentence him in December 2013.

Another exception to the rule against resentencing is found in Penal Code section 1170, subdivision (d)(1). (See People v. Karaman, supra, 4 Cal.4th at pp. 351–352, 14 Cal.Rptr.2d 801, 842 P.2d 100.) That subdivision allows the trial court to resentence a defendant who “has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary ... within 120 days of the date of commitment ..., provided the new sentence, if any, is no greater than the initial sentence.”

In this appeal, the People disclaim any reliance on Penal Code section 1170, subdivision (d)(1). If only out of an excess of caution, however, we note that

239 Cal.App.4th 385

this statute did not apply, for two reasons. First, at the June 2013 resentencing, defendant was not “committed to the custody of the secretary”; rather, the trial court ordered him released.⁴ Second, the “new sentence” imposed at the December 2013 re-resentencing was substantially greater than the “initial sentence” imposed at the June 2013 resentencing.

A third exception is a clerical sentencing error. “Courts may correct clerical errors at any time.... [Citations.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185, 109 Cal.Rptr.2d 303, 26 P.3d 1040.) “Clerical error, however, is to be distinguished from judicial error[,] which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.] Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. [Citation.]” (In re Candelario (1970) 3...