Opinion
E082394
06-07-2024
In re DURRELL ANTOINE BROWN, On Habeas Corpus.
Durrell Antoine Brown, in pro. per.; and Christopher Love for Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Jon S. Tangonan, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus No. CVSW2206304. Timothy F. Freer, Judge. Petition dismissed as moot.
Durrell Antoine Brown, in pro. per.; and Christopher Love for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Jon S. Tangonan, Deputy Attorneys General, for Respondent.
OPINION
RAPHAEL J.
While petitioner Durrell Antoine Brown was serving a sentence of 24 years plus life with the possibility of parole, the California Department of Corrections and Rehabilitation (CDCR) informed the trial court that Brown's abstract of judgment contained an error. Two trial court judges tried to fix the problem-without success-in ways that increased Brown's determinate sentence. When Brown learned of the changes, he filed a habeas petition, and the trial court again modified the abstract. This modification too contained an error, and Brown filed a habeas petition in this court. While the petition was pending, the trial court ordered another modification, and the People moved to dismiss the petition as moot. Petitioner, however, argues the latest modification contains an error and he was entitled to a full resentencing hearing. We conclude the modification corrected clerical errors, did not introduce a new error, and therefore dismiss the petition as moot.
I FACTS
In October 2002, Brown and a codefendant robbed an employee at a truck stop and later the same night robbed a taxi driver, forced the driver into the trunk of his car, and drove around before abandoning the car and victim. (People v. Brown (Nov. 1, 2004, E034752) [nonpub. opn.].)
In 2003, a jury found Brown guilty of one count of second degree robbery for the truck stop robbery and found he was armed. (Pen. Code, §§ 211, 12022, subd. (a)(1), unlabeled statutory citations refer to this code.) The jury found Brown guilty of one count of first degree robbery and one count of kidnapping during a carjacking for robbing and kidnapping the taxi driver and found he personally used a firearm in committing those offenses. (§§ 211, 209.5, 12022.53, subd. (b).)
This habeas proceeding involves only sentencing issues. At Brown's sentencing hearing in 2003, the court imposed the midterm of four years for the first degree robbery conviction and added 10 years for the firearm enhancement. For the kidnapping conviction, the court imposed a consecutive life term and added 10 years for the firearm enhancement. For the second degree robbery conviction, the court imposed a term of one year, which is one-third the midterm of three years, plus four months for the firearm enhancement, which is one-third the one-year enhancement. The court indicated the sentence on the second degree robbery and enhancement "is to run consecutively to that in Count III [kidnapping] and II [first degree robbery]." The trial court said it was sentencing Brown to a "total fixed term of 24 years. And the life in prison to follow the serving of the 24 years of the fixed term."
Important here is that the court used the word "consecutively" in imposing the second degree robbery sentence. But if all three determinate sentences ran consecutively, the aggregate determinate sentence would have been 25 years and four months. If, on the other hand, the sentence for the second degree robbery and the related enhancement ran concurrently to the others, the aggregate determinate sentence would have been the 24-year term the court described.
The habeas petition does not include the original abstract of judgment or the minute order. In April 2018, the CDCR notified the trial court of potential errors in the abstract, which the CDCR said showed the second degree robbery conviction "with one-third the middle term of 1 year imposed concurrently enhanced . . . with 4 months imposed," and "advised that the imposition of one-third the middle term is applicable only when sentencing consecutively....When sentencing concurrently the Abstract should reflect the full term for the level imposed in brackets. The middle term for PC 211** 2nd Degree is 3 years and the term for PC 12022(a)(1) is 1 year." (Italics added.)
At an ex parte hearing two weeks later, the trial court found the minute order recording the sentence "does not correctly/clearly reflect the Court order." The court vacated the sentence on the second degree robbery conviction and the related enhancement and corrected the sentence nunc pro tunc by imposing a midterm three-year sentence for the robbery and a one-year sentence for the enhancement. The court ordered the three-year sentence to run concurrently but the one-year enhancement to run consecutively and issued an amended abstract of judgment reflecting the same. Under the corrected minute order, Brown received "a determinate sentence of 25 yrs 0 mos plus [an] indeterminate sentence of Life with the Possibility of Parole," a one-year increase over the original sentence.
Though this does not appear to have affected the calculation of the sentence, the box "1/3 Consecutive" was marked for the second degree robbery. The CDCR later advised the court of this error, which was not reproduced in later orders.
In June 2018, the CDCR sent another letter to the court, this time explaining the court could not impose a concurrent term for the second degree robbery conviction and a consecutive term for the related enhancement. In July, the trial court held another ex parte hearing and again found the October 2003 minute order did not correctly reflect the court's order and ordered the sentence corrected nunc pro tunc. This time, the court vacated the sentences on all counts, deemed the first degree robbery the principal count, imposed the low term of three years for that count, and sentenced petitioner to a consecutive term of life with the possibility of parole on the kidnapping conviction. The court added two consecutive 10-year terms for the firearms enhancements. On the second degree robbery conviction, the court imposed one year (one-third the midterm of three years), with a four-month firearms enhancement (one-third the one-year enhancement term) to be served consecutively. The new total determinate sentence was for 24 years and four months, four months longer than the original sentence. The second amended abstract of judgment accurately reflects that sentence.
On September 7, 2020, Brown filed a habeas petition in the trial court challenging the resentencing orders. The court issued an order to show cause and found petitioner was entitled to limited relief but did not hold an evidentiary hearing because no material facts were disputed. The court vacated the July 2018 resentencing order and reinstated the April 2018 resentencing order, which it modified to reflect concurrent terms on both the second degree robbery and the firearm enhancement. However, the court said, "[T]he April 2018 modification consisted of ordering the sentence on [the second degree robbery count] to be the middle term (4 years in state prison) with the enhancement (1 year in state prison); both components concurrent to all other Counts." The court denied the petition on all other grounds. This change also had the effect of increasing Brown's determinate sentence by one year over the original sentence, which sentenced him to three years for the second degree robbery.
Brown filed a petition for habeas corpus in this court. He argued the court erred in imposing a four-year sentence for count one because the midterm for second degree robbery is three years and requested a full resentencing hearing where he is personally present and represented by counsel. On December 8, 2023, this court issued an order to show cause why it should not order the trial court to correct the sentence to reflect the midterm of three years for second degree robbery. We noted it appears the trial court erred by imposing the midterm of four years, which is the midterm for first degree robbery.
On November 30, the trial court, responding to another letter from CDCR, held an ex parte sentencing hearing and again corrected the sentence. On December 14, the trial court issued an updated abstract of judgment reflecting it had imposed a concurrent midterm three-year sentence for the second degree robbery conviction and a concurrent one-year sentence on the related enhancement. All other aspects of the sentence remained the same. The resulting sentence is for life in prison with the possibility of parole plus 24 years.
The People argue the third abstract of judgment corrected the only remaining error in the sentence and moved to dismiss the petition as moot. Initially, Brown agreed the new sentence removed the only remaining error, however, in his traverse he argues the latest sentence too is unauthorized because the court did not have discretion to impose a concurrent sentence on the firearm enhancement. As a result, he argues the issues are not moot and we should order a full resentencing hearing where he is entitled to be present.
II ANALYSIS
Brown argues his sentence was unauthorized and could not be corrected as a clerical error. In such circumstances, he argues, he is entitled to a "full resentencing as to all counts . . . so the trial court can exercise its sentencing discretion in light of the changed circumstances," including consideration of any new ameliorative changes in the law that reduce sentences or allow judicial discretion. He also argues he is entitled to be present at the resentencing hearing.
A criminal defendant has a state and federal constitutional right to be personally present at trial which extends to all" 'critical stages'" of the criminal prosecution, including resentencing where the trial court has discretion to reconsider the entire sentence on remand. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348.) Correction of an abstract of judgment is not a critical stage when the correction does not require the court to exercise discretion. (People v. LaPierre (2013) 217 Cal.App.4th 883, 887.)
When the court is correcting a clerical error in its records, it may do so at any time by written amendment without the parties' presence. (In re Candelario (1970) 3 Cal.3d 702, 705.) Clerical error differs from judicial error, which cannot be corrected by amendment. The distinction is" 'whether the error was made in rendering the judgment, or in recording the judgment rendered.'" (Ibid.) Where a minute order or an abstract of judgment conflicts with the oral ruling it is meant to record, the oral ruling governs. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment may not be "different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize"].) Correcting an abstract of judgment to accurately reflect the oral judgment of the sentencing court is correcting a clerical error. (People v. Humphrey (2020) 44 Cal.App.5th 371, 379.)
The situation here is unusual because of the convoluted history of correcting the clerical error. After receiving letters from CDCR and a habeas petition, the trial court has tried four times to correct the sentence and ensure the abstract of judgment accurately reflects the oral judgment of the sentencing court. The problem is the original oral judgment was unclear. At the 2003 sentencing hearing, the court said it was imposing the sentences consecutively, which would have resulted in a determinate term of 25 years and four months. But it also said it was imposing a total sentence of 24 years, which would have been the sentence if the court had made the sentences run concurrently. Since 2018, the court has worked to correct the record to reflect the court's 2003 sentence.
The original abstract of judgment contained an error reflecting the ambiguity in the oral judgment. The first CDCR letter advised the court the abstract may contain an error because it imposed sentences of one-third the applicable term, as if they were to run consecutively, but then treated the sentences as concurrent for the purpose of calculating the total determinate sentence of 24 years. This error reflected the literal oral ruling, identifying the sentences as consecutive, but calculating the determinate sentence as if they were concurrent.
The proper correction was to impose the 24-year determinate term like the oral pronouncement. That is the most lenient way to interpret the ambiguity in the oral pronouncement in Brown's favor, as any other reasonable interpretation would impose a determinate sentence beyond the 24 years that the trial court pronounced. The 24-year determinate term is reached by imposing full sentences-three years for the robbery and one year for the enhancement-running concurrently with the sentence on the principal count. That is the solution the CDCR letter suggested would correct the abstract by bringing it into line with the oral sentence. The trial court ultimately came to that conclusion in its most recent order.
However, the trial court's April 2018 order made only the three-year sentence on the robbery run concurrently and left the one-year enhancement to run consecutively to the sentence on the principal count. The CDCR informed the court that it could not impose a concurrent term for the second degree robbery conviction and a consecutive term for the related enhancement. By amending the abstract and making the sentence on the enhancement concurrent, the court would have legally brought the sentence into alignment with the interpretation of the oral sentence that imposed a 24-year determinate sentence. Instead, in July 2018, the court stated it was vacating Brown's entire sentence and imposing a new sentence, which incorporated additional errors.
Brown learned of these developments after filing a request to review his file in preparation for a hearing with the parole board. Upon his habeas petition, the trial court reinstated the April order and modified it to "reflect the intent and time sentenced by the original sentencing magistrate." This was procedurally the correct perspective: the trial court should be attempting to reflect the original sentence, not vacate the sentence and impose a new one. The modification "consisted of ordering the sentence on [the second degree robbery] to be the middle term (4 years in state prison) with the enhancement (1 year in state prison), both components concurrent to all other Counts." Unfortunately, that modification introduced a new error that was not in the sentence the trial court pronounced in 2003, as it sentenced Brown to a midterm four-year sentence on the second degree robbery conviction, when the midterm for that offense is three years.
After a third CDCR letter, the trial court finally amended the abstract of judgment to impose two full term concurrent sentences of three years (for the robbery) and one year (for the enhancement). In doing so, the trial court interpreted the 2003 oral ruling as imposing full concurrent terms on both the second degree robbery and the enhancement and a 24-year total determinate term. Since that modification fixed the error Brown complained of in this petition, the People have moved to dismiss the petition as moot.
We must decide whether the court was required, in view of the ambiguity in the oral ruling, to reopen the case for a full resentencing. The question is whether the trial court was correcting a clerical error when it interpreted the oral ruling and modified the abstract of judgment. There is little direct guidance on this question. (But see State v. Campbell (2022) 170 Idaho 232, 241 [where an "orally pronounced sentence was ambiguous" the rule for correcting clerical errors "is not the correct avenue under which to challenge the original written judgment"].) In this case, however, there was a way to interpret the trial court's oral ruling that was best, and that way favored Brown.
The trial court was clear in 2003 that it was imposing a 24-year determinate sentence, and it was clear about the component sentences on each count. The ambiguity concerned whether the second degree robbery sentence was concurrent or consecutive. Ambiguities in a pronouncement of sentence should be construed in favor of the defendant. (United States v. Buck (8th Cir. 2011) 661 F.3d 364, 374.) As in United States v. Buck, the record here shows "the court simply misspoke during its oral pronouncement," by saying "consecutive" when it meant "concurrent." There was no true ambiguity, just an inadvertent substitution of words which the trial court in 2023 properly resolved in Brown's favor after considering the full context of the oral pronouncement of sentence.
For this reason, we conclude the trial court was correct in 2023 to construe the oral sentence as imposing a 24-year determinate sentence including concurrent sentences on the second degree robbery and the related enhancement. This achieved the 24-year determinate sentence the trial court pronounced. Had the sentencing court meant to impose those sentences consecutively (which was the word it used), it would have imposed a longer determinate sentence of 25 years and four months. The People argue that the trial court's most recent sentence correction avoided the errors in previous abstracts.
However, Brown argues in his traverse that the new sentence contains a new error because imposing a concurrent term on the enhancement was not a legal option, whether at the original sentencing hearing or now. Whatever the trial court intended to do at the original sentencing hearing, he argues, it could not legally impose a concurrent term on the firearm enhancement because section 12022, subdivision (a) mandates "an additional and consecutive" term of one year. We disagree with this argument. It is true section 12022, subdivision (a) requires that a sentence for the base felony be increased by one year if the offender is armed with a firearm in committing that felony. That does not mean the trial court has no discretion to order that entire enhanced sentence be served concurrently with the sentence on another count. (People v. Oates (2004) 32 Cal.4th 1048, 1060 ["a trial court can mitigate concerns about sentencing inequities by imposing concurrent, rather than consecutive, sentences where multiple [section 12022.53,] subdivision (d) enhancements," which similarly require a consecutive term "are found true"].) The mandate is that the trial court add one year to the term for the base felony, not to the aggregate sentence.
At oral argument, Brown argued the trial court intended to impose a determinate sentence of 25 years and 4 months at the original sentencing hearing, not 24 years. If we accepted his new argument, we would still be correcting a clerical error in the abstract of judgment and ordering the abstract to properly reflect the sentence the judge imposed. We would not be resentencing Brown and giving him the benefit of changes to the law, which seems to be his goal. The sentence Brown seeks is longer than the "total fixed term of 24 years" that the court orally announced in 2003. The People are not seeking the longer sentence and have informed us Brown was released on parole in April 2023. If we were to order the abstract corrected to reflect the longer sentence, it is possible Brown would be returned to custody. We think the more natural interpretation reads the original determinate sentence as 24 years and decline to impose the longer sentence instead.
We therefore conclude the final modification of the abstract of judgment corrected clerical errors in the prior abstracts, and Brown was not entitled to be present at the resentencing. (People v. Codinha (2023) 92 Cal.App.5th 976, 985 ["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 corrected at any time"].) Since the sentence now contains no errors, the petition is moot.
III DISPOSITION
We dismiss the petition as moot.
We concur: McKINSTER Acting P. J. MENETREZ J.