People v. Nesbitt

• Decision Date: 22 December 2010
• Docket Number: No. B218373.,Certified for Partial Publication. ,B218373.
• Citation: 120 Cal.Rptr.3d 59,191 Cal.App.4th 227
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Phillip NESBITT, Defendant and Appellant.

120 Cal.Rptr.3d 59 191 Cal.App.4th 227 The PEOPLE, Plaintiff and Respondent, v. Michael Phillip NESBITT, Defendant and Appellant. No. B218373. Certified for Partial Publication.^* Court of Appeal, Second District, Division 5, California. Dec. 22, 2010.

Mark D. Lenenberg, Simi Valley, under the appointment of the Court of Appeal, for Defendant and Appellant.

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, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.

MOSK, J.

INTRODUCTION

Defendant and appellant Michael Nesbitt (defendant) was convicted on six felony counts based upon the sexual abuse of three of his children.¹ On appeal, defendant contends, inter alia, that the trial court lacked jurisdiction to vacate an order entered in the minutes dismissing counts 4 and 5.

We hold that the trial court had the inherent authority to reconsider its order dismissing counts 4 and 5 and therefore affirm the trial court's order vacating the dismissal of those counts and reinstating them, as well as the judgments of conviction on those counts. In the unpublished portion of this opinion, we otherwise affirm the judgment, except as to matters regarding the sentence and reimbursement of attorney fees.

PROCEDURAL BACKGROUND ^**

DISCUSSION

A. Jurisdiction to Vacate Dismissal Orders

1. Background

On March 2, 2009, after the jury was impaneled, but before opening statements, defendant filed a motion to dismiss counts 1 through 5. Defendant argued, inter alia, that Penal Code section 800 ⁴ time-barredthe prosecution of those five counts and that the limitations period was not extended under section 803, subdivision (f), which extends the statute of limitations if the offense involves "substantial sexual conduct, ... excluding masturbation that is not mutual." ⁵ According to defendant, the preliminary hearing testimony was insufficient to establish that the offenses charged in counts 1 through 5 involved substantial sexual conduct, excluding masturbation that was not mutual.

The trial court heard the dismissal motion on March 3, 2009, just before opening statements.⁶ During argument, defendant's counsel limited the dismissal motion to the counts involving one child—counts 4 and 5—both of which alleged the commission of a forcible lewd act on a child in violation of section 288, subdivision (b). The following exchange then occurred between the trial court and defendant's trial counsel: "The Court: I have read the Penal Code section 800 and 803(f)(1) motion. Anybody wish to make any further arguments other than what's listed or set forth in the motion? [¶] [Defense Counsel]: Your Honor, real quickly, with respect to the charges, those being [counts 4 and 5] ..., I submit on it that with respect to [counts 4 and 5] ..., the issue, besides everything else that I wrote, and I did mention this also, is that [ section] 803. It refers you for the definition of substantial sexual conduct. The first issue is to [section] 1203.066. [ Sections] 1203.066 and 803(f) exclude[ ]—it says substantial sexual conduct as defined in [ section] 1203.066, excluding nonmutual masturbation. [¶] So the—in the transcript, which I cited in my [ section] 803 motion, was he doesn't describe masturbation, but even if you accept that he does, by saying that, he doesn't describe mutual masturbation. So [ section] 803(f) requires it. That's one of the elements, which is substantial sexual conduct, so they don't meet that, so ... counts [4 and 5] would have to be dismissed as being untimely. [¶] ... [¶] ... The Court: Yes. And the crime involved substantial sexual conduct, as described in subdivision b of section 1203.066, excluding masturbation that is not mutual. [¶] [Defense Counsel]: Right. [¶] The Court: This subdivision applies only if all of the following occur as an exclusion to [ section] 803. So is there an allegation of substantial sexual conduct, excluding masturbation, that is not mutual as to [defendant] who is charged—or is involved in counts 4 and counts 5? Count 4, forcible lewd act on a child, [section] 288(b) and count 5, forcible lewd act on a child, [section] 288(b) so looking at 1203.066.[¶] [Defense Counsel]: The point of my—or my point, your Honor, is that [ section] 803(f), specifically f, says that substantial sexual conduct as definedin both [ sections] 1203.066, but then they added that excluding masturbation that is not mutual, and they don't have it in this case. And that's my point. [¶] The Court: I understand.... [¶] Okay, so the way I'm reading this, there has to be some other conduct other than masturbation that is not mutual that's an exception. [¶] [Defense Counsel]: Again, in here what it is, is if you go by the transcript; right? [¶] The Court: I go by the complaint. [¶] [Defense Counsel]: Okay. By the complaint. [¶] The Court: And the complaint doesn't say. [¶] [Defense Counsel]: Right. Right. Whereas, say for [another child] it does say."

Following the foregoing exchange, the prosecutor submitted on the motion as to counts 4 and 5. In response, the trial court stated "my indicated [ruling]is to grant the motion and dismiss only as to counts 4 and 5." Both sides then made opening statements and [one child not named in counts 4 and 5] began her direct testimony, but did not finish by the end of the day. The minute order for March 3, 2009, reflects that counts 4 and 5 were dismissed that day pursuant to section 1385—"in the furtherance of justice." ⁷

The following day, March 4, 2009, [the child] completed her testimony on both direct and cross-examination. The prosecutor then moved the trial court to vacate its order dismissing counts 4 and 5. The prosecutor provided the trial court with a citation to People v. Lamb (1999) 76 Cal.App.4th 664, 90 Cal.Rptr.2d 565, which concluded at page 682 that the term "mutual" in a similarly worded prior version of section 803 included masturbation of the minor victim by the perpetrator. Thus, the prosecutor argued that the trial court had misconstrued the term and that the statute of limitations as to counts 4 and 5 was extended under that section. The prosecutor maintained that the trial court had the inherent power to "reverse itself" on the dismissal motion and that defendant had suffered no prejudice because [the child named in counts 4 and 5] had not yet testified. Defendant's trial counsel opposed the motion, citing In re Candelario (1970) 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729 ( Candelario ) and Smith v. Superior Court (1981) 115 Cal.App.3d 285, 171 Cal.Rptr. 387 ( Smith ). After hearing further argument, the trial court continued the matter to allow the prosecution more time to present case law on the issue.

Later that same day, the prosecutor presented the trial court with, inter alia, the decision in In re Anthony H. (1982) 138 Cal.App.3d 159, 187 Cal.Rptr. 820 ( Anthony H.) and argued that the orders dismissing counts 4 and 5 were interim orders that could be corrected upon further consideration of the legal issue because jeopardy had not attached and defendant was not otherwise prejudiced. After considering further argument, the trial court ruled that it would "correct" its earlier ruling dismissing counts 4 and 5 and deny defendant's motion to dismiss those counts. The minutes for March 4 reflect that the prosecution's motion to reinstate counts 4 and 5 was granted and that those counts were "reinstated forthwith."

2. Analysis

Defendant contends on appeal that the decisions in Candelario, supra, 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729, and Smith, supra, 115 Cal.App.3d 285, 171 Cal.Rptr. 387 control the determination ofthis issue and require us to conclude that once the dismissal orders wereentered in the minutes, the trial court lacked further jurisdiction to vacate those orders. The Attorney General distinguishes Candelario and Smith and asserts that this case is closely analogous to the facts in Anthony H., supra, 138 Cal.App.3d 159, 187 Cal.Rptr. 820.

In Candelario, supra, 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729, the defendant was convicted of selling heroin in violation of former Health and Safety Code section 11501 and admitted the allegation that he had suffered a prior felony conviction. ( Id. at p. 704, 91 Cal.Rptr. 497, 477 P.2d 729.) The sentencing minutes and the abstract of judgment, however, recited only that the defendant was convicted of the heroin offense, without mentioning a true finding on the prior felony conviction. ( Ibid.) Over a month after the defendant was remanded to custody for delivery to the Department of Corrections, the trial court amended the abstract of judgment to add the prior conviction. ( Ibid.)

In determining whether the trial court had the jurisdiction to amend the abstract of judgment, the Supreme Court in Candelario, supra, 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729 observed: "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. ( People v. Schultz (1965) 238 Cal.App.2d 804, 807 ; People v. Flores (1960) 177 Cal.App.2d 610, 613 .) The power exists independently of statute and may be exercised in criminal as well as in civil cases. ( People v. Flores, supra, at p. 613 .) The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. ( In re Roberts (1962) 200 Cal.App.2d 95, 97 .) The court may correct such errors on its own motion or upon the application of the parties. ( People v. Flores, supra, at p. 613 .)[¶] 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.' (46 Am.Jur.2d, Judgments, § 202.) Any attempt by a court,...