Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. JJD058932, William Silveira and Valeriano Saucedo, Judges.
Judge Silveira presided over the disposition hearing on August 8, 2005; Judge Saucedo presided over subsequent hearings in 2009 and 2010.
Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
DETJEN, J.
In August 2005, Michael R. was sentenced to the California Youth Authority (CYA) and the juvenile court found that his violation was a Welfare and Institutions Code section 707, subdivision (b) offense. On April 19, 2007, we affirmed the original judgment of the juvenile court stating, in the facts of our opinion, that the juvenile court found Michael’s offense was a section 707, subdivision (b) offense.
CYA is now known as the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.5.) For purposes of clarity, we shall refer to it as CYA.
All future code references are to the Welfare and Institutions Code unless otherwise noted.
Subsequent to August 2005, but prior to April 2007, the juvenile court received a letter from CYA and a different judge, believing he was correcting clerical error, amended the order to state the offense was not a section 707, subdivision (b) offense. This “correction” was made without notice to the parties. In August 2009, the People moved for reconsideration of that order, seeking to nullify it. The juvenile court granted the People’s motion and vacated the ex parte order. Michael appeals.
STATEMENT OF THE CASE AND FACTS
On December 1, 2004, a petition was filed against Michael, just prior to his 18th birthday, alleging that he was a ward of the juvenile court pursuant to section 602 because he had committed a violation of Penal Code section 288.5, continuous sexual abuse on a minor.
The petition was found true on June 13, 2005, after a hearing where Michael’s 11-year-old sister testified that Michael had repeatedly sexually assaulted her during the previous two or three years. His acts included intercourse, sodomy, oral copulation, and lewd and lascivious touchings. She testified that when she did not comply with his demands to remove her clothing, he would force her to do so and when she told him to stop he did not. One of their siblings testified that he witnessed Michael having intercourse with his sister on two occasions.
On August 8, 2005, Judge William Silveira committed Michael to CYA. Judge Silveira stated the conduct by Michael was extremely serious and he found the offense committed by Michael to be a section 707, subdivision (b) offense.
After the appeal was filed, there was a period of time when Michael was sent back from CYA to undergo a placement review. The authorities from CYA sent a letter to Judge Silveira on August 29, 2005, stating that it did not believe that the offense was a section 707, subdivision (b) offense and requested the designation be removed. Judge Silveira did not take any action regarding this letter. Michael was placed at CYA on October 24, 2005.
On December 12, 2005, CYA sent another letter to Judge Silveira again requesting that the section 707, subdivision (b) designation be removed, noting they had sent an earlier request to do so.
By minute order dated February 7, 2006, Judge Valeriano Saucedo amended the previous minute order and commitment to CYA stating that the offense of Penal Code section 288.5 was not listed in section 707, subdivision (b). This order was done ex parte without notice or hearing to any party.
On March 30, 2006, we filed our opinion in Michael’s appeal. (In re Michael R. (Mar. 30, 2006, F048706) [nonpub. opn.].) Following Wende (People v. Wende (1979) 25 Cal.3d 436) review, we found no reasonably arguable, factual or legal issue. Michael filed a petition for review in the Supreme Court. His petition was granted and the matter was transferred back to this court with directions to provide Michael with an opportunity to submit a supplemental brief and to resolve the appeal in accordance with a Wende review and People v. Kelly (2006) 40 Cal.4th 106.
On April 19, 2007, we filed our second opinion. Again we found no reasonably arguable, factual or legal issues existed. We set forth the facts of Michael’s case and stated, “[t]he court also found that Michael’s offense was listed under Welfare and Institutions Code section 707, subdivision (b).” (In re Michael R., (Apr. 19, 2007, F048706) [nonpub. opn.] at p. 2.)
In May 2009, the district attorney’s office filed a request for disclosure of Michael’s juvenile records to determine if they were relevant to a current prosecution in superior court for a violation of Penal Code sections 290 and 290.003. The request was granted and the district attorney saw the conflicting orders regarding the section 707, subdivision (b) characterization of Michael’s Penal Code section 288.5 offense.
The People filed a motion in juvenile court for reconsideration of whether Michael’s offense was a section 707, subdivision (b) offense. Michael filed opposition, arguing the court exercised its discretion when it changed the section 707, subdivision (b) designation in February 2006, the juvenile court no longer had jurisdiction, and therefore the judicial error could not be corrected.
In supplemental authorities filed by the People, they argued the original section 707, subdivision (b) designation was a factual determination and one judge cannot overrule a factual determination of another judge.
Judge Saucedo heard the motion. He explained why he made the disputed order and said Judge Silveira had left the juvenile court and he had taken over as presiding judge. He changed the designation because he treated it as an administrative matter. He believed the Department of Juvenile Justice and relied on their determination that a violation of Penal Code section 288.5 was not a section 707, subdivision (b) offense. Judge Saucedo characterized his order as a ministerial act.
On January 14, 2010, Judge Saucedo ruled that he did not have jurisdiction to review and change a decision of a sister court. He vacated his February 2006 order and restored the order of Judge Silveira designating Michael’s offense as a section 707, subdivision (b) offense.
DISCUSSION
Michael argues the juvenile court’s fundamental jurisdiction over him expired at the time the People filed their motion to vacate the previous order of Judge Saucedo because he was over the age of 21 and no longer at CYA. He argues the court thereafter could not correct earlier judicial error and the subsequent January 2010 order by Judge Saucedo is void.
The People argue that our opinion in 2007 is law of the case, reduced to a final judgment that Michael cannot now challenge. In addition, the People contend Judge Saucedo’s 2006 amendment is null and void because he did not have jurisdiction to make such an order. The People argue that Judge Saucedo did not have the authority to overrule Judge Silveira’s original order because another department or judge cannot act as a one-judge appellate court in reviewing orders previously made.
On August 8, 2005, Judge Silveira properly determined that Michael’s offense fell within the parameters of section 707, subdivision (b). Section 707, subdivision (b) lists numerous offenses that require a section 707, subdivision (b) finding, including numerous sex offenses. It does not specifically list section 288.5, continuous sexual abuse, as a crime falling within its purview, but in In re Emilio C. (2004)116 Cal.App.4th 1058, the court held that continuous sexual abuse of a child (Pen. Code, § 288.5) can be a section 707, subdivision (b) offense and the court may look beyond the pleadings and consider the circumstances of the minor’s offense in making such a determination. (In re Emilio C., supra, 116 Cal.App.4th at pp. 1065-1066.)
Several code sections regarding who is eligible for commitment to CYA, including sections 731 and 733, were altered by legislation effective on September 1, 2007. These amendments do not apply retroactively. (In re N.D. (2008) 167 Cal.App.4th 885, 888.) We are referring to section 707, subdivision (b) as it stood at the time Michael committed his offense.
In March 2006, this court agreed with Judge Silveira’s determination. Although the issue of the applicability of section 707, subdivision (b) was not raised by Michael in his appeal to this court from the original judgment, this court conducted a Wende review of the record. Michael argues that our statement that the court found Michael’s offense to be an offense under section 707, subdivision (b), was merely a statement made as part of the factual background of the case and was not part of any analysis of any issue considered by this court. To the contrary, under Wende we review the entire record for arguable issues. (People v. Kelly, supra, 40 Cal.4th at. p. 118.) In Michael’s case, we determined there were no arguable issues in the record, thus we reviewed the propriety of the section 707, subdivision (b) designation.
Our decision is law of the case. “‘It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. [Citation.] The principle is as applicable to the decisions of criminal courts as to those of civil jurisdiction.’” (People v. Mitchell (2000) 81 Cal.App.4th 132, 144.)
Our statement in our opinion that the court found Michael’s offense to be a section 707, subdivision (b) offense is law of the case. Michael cannot later dispute that decision and is bound by it.
Judge Saucedo’s intervening order of February 7, 2006, erroneously believing there was clerical error when there was not, does not change that result.
“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. [Citation.]
“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 Cal.3d 702, 705.) “The distinction between a clerical error and a judicial error does not depend so much on the person making it as it does on whether it was the deliberate result of judicial reasoning and determination.” (Lee v. Offenberg (1969) 275 Cal.App.2d 575, 582.)
It is clear that Judge Saucedo believed he was correcting clerical error when he issued his amendment to Michael’s commitment finding that his offense was not a section 707, subdivision (b) offense. It is equally clear that the perceived error in the original commitment order was a judicial decision made by Judge Silveira as a result of reasoning and determination. As such, Judge Saucedo did not have the power to “correct” it.
Although juvenile courts have continuing jurisdiction over the minor throughout the proceedings (§ 775), an erroneous correction of an order under the belief that the correction is a clerical one, is not the type of order contemplated under that continuing jurisdiction because the court is not changing its previous order based on current circumstances that might warrant a change under the ongoing jurisdiction of the juvenile court. Thus, the change in the order made by Judge Saucedo in February 2006 did not occur because of a change in circumstance affecting the minor’s current circumstances that warranted the court to change an existing order.
There is a disagreement in the courts on whether a juvenile court has ongoing jurisdiction to modify its previous orders sua sponte. (In re Eugene R. (1980) 107 Cal.App.3d 605, 613; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 115.)
Because no clerical error occurred in Judge Silveira’s initial order, Judge Saucedo had no power to correct it in February 2006. Under the name of clerical error, Judge Saucedo altered the order. It is the equivalent of clerical error to change an order that is already correct. Because clerical error can be corrected at any time, the error of Judge Saucedo in removing the section 707, subdivision (b) enhancement could be corrected at the time of the motion to vacate.
Judge Saucedo’s order created conflicting orders of the same subject matter. “‘An order made in one department during the progress of a cause can neither be ignored nor overlooked in another department in which the cause falls by transfer.’” (Lee v. Offenberg, supra, 275 Cal.App.2d at p. 583.) “[T]he general rule is that one superior court judge may not overrule another.” (People v. Garcia (2006) 147 Cal.App.4th 913, 916.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., FRANSON, J.