Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Stephen H. Ashworth, Judge, Super. Ct. Nos. FVI00651 & WHC700401.
James M. Crawford, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown Jr., Attorney General, and Robin Derman, Deputy Attorney General, for Respondent.
OPINION
MILLER, Acting P. J.
Petitioner seeks habeas corpus relief to set aside an order made six years after his original sentencing that imposed a restitution fine in the amount of $5,000 pursuant to Penal Code section 1202.4, subdivision (b). We agree that the trial court did not have the authority to modify the sentence that was imposed and, accordingly, grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was convicted of second degree murder in 1996, and a prior prison term enhancement was found true. At the sentencing hearing, the court imposed and stayed a parole revocation fine of $5,000 pursuant to Penal Code section 1202.45, but omitted any mention of a restitution fine pursuant to Penal Code section 1202.4.
This court affirmed petitioner’s conviction in a nonpublished opinion. (People v. Debacco (May 14, 1997, E018192).) Neither petitioner nor the People raised an issue on appeal concerning the restitution fine.
Years later, the prison records staff discovered the court’s omission and wrote the judge informing him of the failure to impose this restitution fine. On February 8, 2002, the sentencing judge ordered the court clerk to prepare an amended abstract of judgment imposing a $5,000 restitution fine under Penal Code section 1202.4, subdivision (b), as well as the parole revocation fine.
When reviewing his central file in June 2006, petitioner learned of the action taken by the prison authorities and filed an administrative appeal. He followed up this unsuccessful administrative challenge with an equally unsuccessful habeas corpus petition in the superior court.
DISCUSSION
Trial courts do not have unlimited authority to modify a sentence once imposed. Generally speaking, once a defendant begins serving a sentence, the sentencing court loses jurisdiction to modify the sentence it imposed. (See People v. Karaman (1992) 4 Cal.4th 335, 344, 347, 350; People v. Howard (1997) 16 Cal.4th 1081, 1089.) It is true that courts have inherent authority to correct clerical errors in a sentence at any time. (In re Candelario (1970) 3 Cal.3d 702, 705.) In addition, an unauthorized sentence may be corrected whenever the error comes to the attention of the court. (In re Harris (1993) 5 Cal.4th 813, 842.)
The omission of a restitution fine under Penal Code section 1202.4, subdivision (b), in this case was neither an unauthorized sentence nor the result of a clerical error. Accordingly, we conclude that the trial court lacked the jurisdiction to order the amendment of the abstract of judgment.
A. The omission of a Penal Code section 1202.4 restitution fine is not an unauthorized sentence.
A sentence is said to be unauthorized if it could not “lawfully be imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
The restitution fine under Penal Code section 1202.4, subdivision (b), is mandatory unless the sentencing court finds compelling and extraordinary reasons for not imposing it, and states those reasons on the record. (Pen. Code, § 1202.4, subd. (b).) In cases in which the court imposes a restitution fine, imposition of a parole revocation fine is also mandatory. (Pen. Code, § 1202.45.)
The restitution fine under Penal Code section 1202.4 is considered a discretionary sentencing choice because the trial court is not required to impose it in all cases—it can find circumstances for not doing so. Therefore, if the trial court fails to impose such a fine, and the People fail to object, the matter is waived and cannot be raised on appeal. (People v. Tillman (2000) 22 Cal.4th 300, 303.) In Tillman, the trial court failed to impose restitution fines under Penal Code sections 1202.4 or 1202.45, and it failed to state on the record its reasons for not imposing the restitution fines. The appellate court amended the abstract of judgment to add restitution fines of $200, the statutory minimum. The Supreme Court reversed, holding that appellate courts may not correct a discretionary sentencing choice if the People failed to object at sentencing. Citing People v. Scott, supra, 9 Cal.4th 331 and People v. Welch (1993) 5 Cal.4th 228, the Supreme Court held that the waiver doctrine applies to the People as well as to a criminal defendant seeking to correct alleged sentencing errors on appeal after having failed to object in the trial court. Because such an error is not correctable without considering factual issues presented by the record or remanding for additional findings, the People have waived the issue and may not raise it for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 853.)
Because the imposition of this fine is discretionary, it also follows that its omission is not an unauthorized sentence.
However, if the court imposes a restitution fine under Penal Code section 1202.4, the parole revocation fine must be imposed in the same amount. If the parole revocation fine is a different amount, it is an unauthorized sentence and the error cannot be waived. Thus, it can be corrected at any time even if there was no objection. This is because the fine is mandatory in all cases. (People v. Smith, supra, 24 Cal.4th at p. 853.)
The trial court in Smith imposed a Penal Code section 1202.4, subdivision (b), restitution fine in the amount of $5,000 and a parole revocation fine in the sum of $200. The Supreme Court held that the Court of Appeal could correct the erroneous amount of the latter fine despite the People’s failure to object. Under Penal Code section 1202.45, a trial court has no choice and must impose a parole revocation fine equal to the restitution fine whenever the sentence includes a period of parole. Thus, the trial court erred only when it imposed a parole revocation fine in an amount different from the amount of the restitution fine. In contrast to the situation where there has been an erroneous omission of a restitution fine, this error did not involve a discretionary sentencing choice and could be corrected on appeal. The Supreme Court recognized a narrow exception to this waiver rule for “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.” (People v. Smith, supra, 24 Cal.4th at p. 852.)
The People contend that the court’s failure in this case to impose a fine under Penal Code section 1202.4 was not an exercise of its discretionary sentencing choice. Rather, they argue that because the trial court imposed a parole revocation fine, it must have exercised its discretion to impose a restitution fine and its failure to do so was merely an oversight. While this might explain what occurred, we cannot indulge in such a presumption. Another inference is that the trial court exercised its discretion not to impose a fine under Penal Code section 1202.4, but erred in believing it could still impose a parole revocation fine. Simply stated, the record does not demonstrate that the sentencing court exercised its discretion whether to impose a fine or in setting the amount. It does not follow that the discretionary choice is now transformed into a mandatory sentencing choice.
No one objected to the fines either at the sentencing hearing or on appeal. If the matter had been raised on appeal, the parole revocation fine would have been vacated. However, because the omission of a Penal Code section 1202.4, subdivision (b), restitution fine is not an unauthorized sentence, it could not have been imposed or increased to the amount of the parole revocation fine. On the contrary, it appears setting the parole revocation fine in the amount of $5,000 was an unauthorized sentence that can be corrected at any time.
B. Omission of restitution fine was not a clerical error.
Tillman and Smith are also distinguishable because the sentencing errors were raised on appeal. Here, we have a judgment that is long since final. As discussed, the sentence was not an unauthorized sentence that could be corrected at any time. Neither could the trial court amend the sentence on the theory that it was correcting a clerical error. (In re Candelario, supra, 3 Cal.3d at p. 705.) A court’s authority to correct orders nunc pro tunc is limited to true clerical errors and does not allow a court to declare that something was done that was not done. (People v. Borja (2002) 95 Cal.App.4th 481, 485.) “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 . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.” (In re Candelario, supra, 3 Cal.3d at p. 705.) “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ ” (Ibid.) An example of judicial error is found in People v. Borja, supra, 95 Cal.App.4th 481. There, the defendant had been initially granted probation conditioned in part on a jail sentence of 365 days. Almost six years later, after the defendant had completed his probation, the defendant sought and obtained a nunc pro tunc modification of the probation condition to a sentence of 364 days. This change was important to avoid the defendant’s deportation for an aggravated felony under federal immigration laws. (Id. at pp. 483–484.) The appellate court found the change invalid, because the court was not correcting a clerical order. (Id. at p. 485.)
DISPOSITION
The record is clear in this case that the initial omission of a restitution fine was not the result of a clerical error, but simply a judicial error.
It appears to be a common practice for the Department of Corrections and Rehabilitation to advise the trial court of sentencing errors. Before acting on this information, we must caution the trial court to ensure that it has the authority to do so.
Accordingly, the petition for writ of habeas corpus is granted and the Superior Court of San Bernardino County is directed to strike both the restitution fine and the parole revocation fines from the amended abstract of judgment.
We concur: HOLLENHORST, J., McKINSTER, J.