Smith v. Superior Court

• Citation: 171 Cal.Rptr. 387,115 Cal.App.3d 285
• Court: California Court of Appeals Court of Appeals
• Decision Date: 27 January 1981
• Parties: Almon Boyd SMITH, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent. PEOPLE of the State of California Real Party in Interest. Civ. 50184.

Page 387

171 Cal.Rptr. 387

115 Cal.App.3d 285

Almon Boyd SMITH, Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent.

PEOPLE of the State of California Real Party in Interest.

Civ. 50184.

Court of Appeal, First District, Division 3, California.

Jan. 27, 1981.

Hearing Denied April 13, 1981.

Quin Denvir, State Public Defender, Peter R. Silten, Deputy State Public Defender, San Francisco, for petitioner.

George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Nathan D. Mihara, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

This petition presents the question of whether a trial court may reconsider and vacate an order dismissing a prosecution where there is an allegation that extrinsic fraud or mistake has taken place and that new facts would alter the court's decision. We conclude that at least where no actual fraud has been perpetrated upon the court, a criminal court has no authority to vacate a dismissal entered deliberately but upon an erroneous factual basis.

The issue arises in connection with the decision by this court in People v. Smith (1980) 103 Cal.App.3d 840, 163 Cal.Rptr. 322. The defendant there had pled guilty to embezzlement of a rental car and was placed on three years probation with one year in county jail. On appeal he argued that the car was illegally seized as a result of a post-booking search of his mother's wallet in the property facility of the Berkeley city jail. We agreed with the defendant that the search came within no exception to the warrant requirement and that its fruits should have been suppressed. Hearing was denied by the California Supreme Court.

After the remittitur issued, petitioner Smith's attorney and the deputy district attorney prosecuting the case met with Judge Winton McKibben in chambers to discuss the possibility that the prosecution would be dismissed. In open court on July 10, 1980, the prosecutor noted that without the car he would be unable to retry petitioner. The prosecutor and the court were under the impression that there were no pending appellate matters in the case, defense counsel having so represented. The court entertained and granted the prosecution's motion to dismiss.

Soon thereafter, the prosecutor learned that the Attorney General's office had been processing a petition for certiorari in the United States Supreme Court. In fact, on July 1, 1980, the People filed an application for a stay pending preparation of the petition for certiorari. The State Public Defender's office was aware of the People's petition, but neither trial attorney had been informed. ¹ The district attorney's office was aware of the Attorney General's action, but the individual deputy had not been informed.

After learning of the pending United States Supreme Court proceedings, the prosecutor moved to vacate the order of dismissal. At a hearing held July 16, 1980, the events surrounding the dismissal were explained and the trial court granted the motion to vacate, reinstating the charges and continuing the matter to August 15, 1980 to set for trial. This petition followed.

Petitioner takes the position that in vacating its previous dismissal the trial court was attempting to correct a judicial, as opposed to clerical, error and that it was without authority to do so. The People argue that the trial court's action was justified by Code of Civil Procedure sections 473 and 1008, was within its inherent powers under Code of Civil Procedure section 128, and was within its equity powers to correct mistakes and rulings caused by extrinsic fraud. The People also argue that the dismissal was invalid because the court did not adequately state its reasons in the minutes (People v. Orin (1975) 13 Cal.3d 937, 944-945, 120 Cal.Rptr. 65, 533 P.2d 193).

The limits of a criminal court's power to reconsider a ruling and vacate an order or judgment, though referred to in passing, have to some extent been left open by the California Supreme Court. In its decision in People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, overruled on other grounds in People v. Kaanehe (1977) 19 Cal.3d 1, 10-11, 136 Cal.Rptr. 409, 559 P.2d 1028, footnote 6, the court addressed the question of whether a trial court could reopen its ruling on a suppression motion at the request of the defendant. During the course of its discussion, the Krivda court observed: "It is true that there are several cases which hold that a court has the inherent power to reconsider, and thereupon to modify, revoke or set aside, a prior order upon determining that its order was erroneous. (See People v. Eggers, 30 Cal.2d 676, 692, 185 P.2d 1 ...; Imperial Beverage Co. v. Superior Court, 24 Cal.2d 627, 634, 150 P.2d 881 ...; Harth v. Ten Eyck, 16 Cal.2d 829, 832-834, 108 P.2d 675 ...; San Francisco Lathing, Inc. v. Superior Court, 271 Cal.App.2d 78, 81, 76 Cal.Rptr. 304 ...; Big Bear Mun. Water Dist. v. Superior Court, 269 Cal.App.2d 919, 928, 75 Cal.Rptr. 580 ...; 2 Witkin, Cal. Procedure (1954), Proceedings Without Trial, § 12, p. 1649.) It has been suggested, however, that the foregoing rule is limited in its application to mere 'procedural' rulings which may be modified at any time before final judgment (see Greene v. Superior Court, 55 Cal.2d 403, 405, 10 Cal.Rptr. 817, 359 P.2d 249 ...; City of San Diego v. Superior Court, 36 Cal.2d 483, 486, 224 P.2d 685 ...); and is an exception to the general rule that judicial error which occurs in the rendition of orders or judgments which are the fault of judicial discretion, as opposed to clerical error or inadvertence, may not be corrected except by statutory procedure (see In re Candelario, 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729 ...; Minardi v. Collopy, 49 Cal.2d 348, 352-353, 316 P.2d 952 ...; Key System Transit Lines v. Superior Court, 36 Cal.2d 184, 191-196, 22 P.2d 867 ... (dissenting opn. of Traynor, J.)). (5 Cal.3d at pp. 362-363, 96 Cal.Rptr. 62, 486 P.2d 1262.)

The Krivda court did not reconcile these conflicting decisions because it concluded that the answer to its question lay in the wording of Penal Code section 1538.5, subdivision (i). However, it did note that a recent article examined some of the cases and found them largely irreconcilable (see Goodman, The Power of the Trial Judge to Change a Prior Ruling on a Motion (1970) 45 State Bar J. 483).

In resolving the question of whether the trial court may reconsider a prior ruling we must at the outset recognize the differences between civil and criminal matters and between orders having effects upon the trial process and judgments (or orders having equivalent effect). In this case, the trial court's order of dismissal did not merely affect the procedure of a civil trial. It terminated the prosecution against petitioner. If reconsideration was proper, the authority for it should not be lightly drawn from the law of civil procedure.

The decision in In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729, comes closest to the point presented here. There the defendant was convicted of selling heroin and had admitted a prior felony conviction. The minutes of the court for the date of judgment and the abstract of judgment recited only that he was convicted of the substantive offense, neither document containing any finding on the prior conviction. After remand to custody, the trial court filed an amended abstract of judgment adding the prior. The Candelario court found the amendment to the abstract to be in excess of the court's jurisdiction, concluding that since the abstract did not initially mention the prior, the only inference to be drawn was that the court exercised leniency by declining to make a finding on the prior.

The Candelario court rejected a contention that the amendment was a proper correction of clerical error: "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, 48 Cal.Rptr. 328 ...; People v. Flores (1960) 177 Cal.App.2d 610, 613, 2 Cal.Rptr. 363 ...) 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, 2 Cal.Rptr. 363.) 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, 19 Cal.Rptr. 147 ...) The court may correct such errors on its own motion or upon the application of the parties. (People v. Flores, supra, 177 Cal.App.2d at p. 613, 2 Cal.Rptr. 363.)

"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, under the guise of correcting clerical error, to 'revise its deliberately exercised judicial discretion' is not permitted. (In re Wimbs (1966) 65 Cal.2d 490, 498, 55 Cal.Rptr. 222, 421 P.2d 70 ...)

"An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. (Morgan v. State Bd. of Equalization (1949) 89 Cal.App.2d 674, 682, 201 P.2d 859 ...; Waters v. Spratt (1958) 166 Cal.App.2d 80, 86, 332 P.2d 754 ..., disapproved on another ground in Kusior v. Silver (1960) 54 Cal.2d 603, 616, 7 Cal.Rptr. 129, 354 P.2d 657 ...; see Bastajian v. Brown (1941) 19 Cal.2d 209, 214-215, 120 P.2d 9 ...)

"It cannot be disputed that the amendment in question substantially affects...