People v. Mitchell

• Decision Date: 19 July 2001
• Docket Number: No. S090791.,S090791.
• Citation: 109 Cal.Rptr.2d 303,26 P.3d 1040,26 Cal.4th 181
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Willie Ross MITCHELL, Defendant and Appellant.

109 Cal.Rptr.2d 303

26 Cal.4th 181

26 P.3d 1040

The PEOPLE, Plaintiff and Respondent, v. Willie Ross MITCHELL, Defendant and Appellant.

No. S090791.

Supreme Court of California.

July 19, 2001.

Linn Davis, under appointment by the Supreme Court, Norco, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan D. Martynec, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

In this case, we address the following question: If the Attorney General, in responding to a criminal defendant's appeal, points out a discrepancy between the trial court's judgment and the abstract of judgment, should the Court of Appeal order the trial court to correct the abstract of judgment or should it direct the Attorney General to ask the clerk of the trial court to make the correction? The Court of Appeal here took the latter course. We conclude that principle and practice dictate the former. We therefore reverse the Court of Appeal on this issue and remand the matter with appropriate directions.

FACTUAL BACKGROUND

An information charged that in February 1997, defendant Willie Ross Mitchell committed the felonies of driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)) and driving with a blood-alcohol concentration of more than .08 percent (Veh.Code, § 23152, subd. (b)). A second information charged that he again drove under the influence of alcohol in June 1997. Each information alleged that defendant had sustained three prior drunk driving convictions within the past five years, exposing him to punishment of at least 180 days in jail and revocation of his driver's license. The informations also alleged that he had sustained convictions in 1983 for arson of an inhabited structure (Pen.Code, § 451, subd. (a))¹ and arson of a structure (§ 451, subd. (c)), which are "violent felonies" requiring sentence enhancement under the "Three Strikes" law.

At trial on a consolidated information, the jury convicted defendant of all three crimes charged and the trial court found true the allegations concerning his prior drunk driving and arson convictions. The court imposed under the Three Strikes law a 25-year-to-life prison sentence for the February 1997 drunk driving offense and a concurrent 25-year-to-life prison sentence for the separate contemporaneous offense of driving with an excessive blood-alcohol concentration. As to the June 1997 drunk driving offense, the court dismissed a strike and sentenced defendant as a second strike offender to a consecutive six-year prison term. The court also imposed restitution fines and penalty assessments. However, the abstract of judgment failed to reflect most of these fines and assessments, and the People did not seek correction of these omissions in the trial court.

Defendant appealed, raising various issues not pertinent here. In his appellate brief, the Attorney General pointed out the omissions in the abstract of judgment and asked the Court of Appeal to correct them. Specifically, at sentencing the trial court orally imposed and suspended a $10,000 parole revocation fine under section 1202.45. The trial court also orally imposed $1,000 "fines ... on count[s] 1 and 3" of the consolidated information because those counts "involve[d] driving under the influence."² It then stated, however, that defendant could "pay those [$1,000] fines by serving time in any penal institution at the rate of one day being the equivalent of $30." (See Veh.Code, § 42003, subd. (b).) The trial court also orally imposed penalty assessments on the $1,000 fines, which, as the Attorney General notes, triggered additional $1,000 state penalties under section 1464 and $700 county penalties under Government Code section 76000. The abstract of judgment contained none of these fines and penalties. The Court of Appeal denied the Attorney General's correction request and instead directed him to ask the clerk in the trial court to make the corrections.

Both defendant and the Attorney General sought review in this court, the latter on the ground that the Court of Appeal erred in refusing to order correction of the abstract of judgment. We denied defendant's petition but granted the Attorney General's.

Discussion

"It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties." (In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729.) Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. (See, e.g., People v. Boyde (1988) 46 Cal.3d 212, 256, 250 Cal.Rptr. 83, 758 P.2d 25; People v. Barnes (1981) 30 Cal.3d 143, 150, 177 Cal. Rptr. 861, 635 P.2d 455; People v. Brown (2000) 83 Cal.App.4th 1037, 1039, 1046-1047, 100 Cal.Rptr.2d 211; People v. Avila (1999) 75 Cal.App.4th 416, 424, 89 Cal. Rptr.2d 320; People v. Kearns (1997) 55 Cal.App.4th 1128, 1131, 1137, 64 Cal. Rptr.2d 654; People v. Williams (1992) 10 Cal.App.4th 827, 835, 13 Cal.Rptr.2d 107; People v. Rowland (1988) 206 Cal.App.3d 119, 123-124, 128, 253 Cal.Rptr. 190; People v. Hartsell (1973) 34 Cal.App.3d 8, 13-14, 109 Cal.Rptr. 627.)

It is, of course, important that courts correct errors and omissions in abstracts 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. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337.) However, section 1213 provides that when a court pronounces a judgment of probation or imprisonment in the state prison, either a certified copy of the minute order or a certified abstract of the judgment "shall be forthwith furnished to the officer whose duty it is to execute the probationary order or judgment, and no other warrant or authority is necessary to justify or require its execution." Under this statute, "the certified abstract of the judgment constitutes the commitment. [Citations.] It is thus the order sending the defendant to prison and `the process and authority for carrying the judgment and sentence into effect.' [Citations.]" (In re Black (1967) 66 Cal.2d 881, 890, 59 Cal.Rptr. 429, 428 P.2d 293.) In People v. Hong (1998) 64 Cal.App.4th 1071, 1080, 76 Cal.Rptr.2d 23 (Hong), the court applied these principles in holding that an abstract of judgment must reflect a restitution fine a sentencing court has orally imposed under section 1202.4, subdivision (b). The Hong court reasoned that a restitution fine is part of the judgment and the Legislature intended the abstract of judgment to summarize the judgment. (Hong, supra, 64 Cal.App.4th at p. 1080,76 Cal.Rptr.2d 23.) The court stressed that its conclusion was "consistent with the unmistakable legislative intention that the Department of Corrections be apprised of the amount of the restitution fine so that it can fulfill its obligations to secure payment from inmates and parolees." (Ibid.) The court also held that where an abstract of judgment omits a restitution fine a sentencing court has orally imposed, "the Attorney General is entitled to seek on appeal to have the abstract of judgment corrected to reflect the judgment of the trial court...." (Ibid.) In reaching this conclusion, the court noted that "[a]ppellate courts routinely grant requests on appeal of the Attorney General to correct errors in the abstract of judgment. [Citations.]" (Id. at p. 1075, 76 Cal.Rptr.2d 23.) The court accordingly ordered the clerk of the superior court to prepare a corrected abstract of judgment incorporating the restitution fine. (Id. at pp. 1084-1085, 76 Cal.Rptr.2d 23.)

Diverging from this common practice, the Court of Appeal here denied the Attorney General's correction request "without prejudice to the People's right to apply to the trial court clerk and if necessary the trial court for correction." The Court of Appeal first noted that an abstract of judgment "is not a judgment of conviction" or even "an order of the court," but is merely "a form prepared and signed by the clerk of the court" that "cannot add to or modify the judgment which it purports to digest or summarize." Therefore, the Court of Appeal continued, an error in the abstract of judgment "does not change the judgment" or "inject error" into it, but "is simply clerical error." The Court of Appeal then noted that such an error "is not appealable" because section 1238, which specifies the orders from which the People may appeal, "does not authorize appeal from an abstract of judgment" and appeal is not "generally available to correct trial court clerical errors." Instead, the Court of Appeal concluded, "[t]he proper remedy is to ask the trial court clerk to correct the error, followed, if necessary, by a motion in the trial court." "If the trial court denies a well-grounded motion to conform the abstract to the sentence, then there will be an `order made after judgment' which may `substantially affect the rights of the people' and thus be appealable. (Pen.Code, § 1238, subd. (a)(5).)"

We reject the implicit major premise of the Court of Appeal's analysis—that an appellate court may not correct clerical error the Attorney General identifies unless the People have a right to appeal from that error. As noted, a court—including an appellate court...