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In re Wright

Court of Appeals of California, Second Appellate District, Division Five.
Nov 21, 2003
B169122 (Cal. Ct. App. Nov. 21, 2003)

Opinion

B169122.

11-21-2003

In re DONALD RAY WRIGHT on Habeas Corpus.

Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Petitioner. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Respondent.


Defendant, Donald Ray Wright, who is incarcerated in North Kern State Prison, seeks a writ of habeas corpus directing the trial court to comply with an alleged June 26, 2002, order to not enforce a previously imposed $500 restitution fine. We deny the petition. We direct the clerk of the superior court to prepare and deliver to the Department of Corrections an amended abstract of judgment reflecting the previously imposed $500 restitution fine once the remittitur issues. In addition, in order to assure compliance with our orders and those of other superior court judges, we assign this matter to the Honorable David S. Wesley, the supervising judge of the criminal division of the trial court, to insure that the abstract of judgment is properly amended and forwarded to the Department of Corrections once the remittitur issues.

Defendant was convicted by a jury in 1990 of three felonies; one count of first degree burglary and two counts of commercial burglary. (Pen. Code, § 459.) Following a court trial, he was found to have been convicted of three prior serious felonies (§ 667, subd. (b)) and to have served two prior separate prison terms. (§ 667.5, subd. (b).) On October 15, 1990, now retired superior court Judge James M. Sutton, Jr. sentenced defendant to 22 years, 4 months in state prison. In addition, defendant was ordered to pay a $500 restitution fine pursuant to former Government Code section 13967, subdivision (a). (Stats. 1983, ch. 1092, § 135.2, p. 3998.)

On March 24, 1994, the Supreme Court issued an order to show cause returnable in the superior court. The order stated: "The Director of Corrections is ordered to show cause before the Los Angeles County Superior Court when the matter is ordered on calendar, why, in Case No. NA002727, the evidence was not insufficient to prove that the 1985 assault with a deadly weapon conviction was a serious felony for purposes of imposing a five-year enhancement (see Pen. Code sections 667, subd. (a), 1192.7, subd. (c)(23); People v. Equarte (1986) 42 Cal.3d 456, 465; People v. Williams (1991) 222 Cal.App.3d 911, 914-915); and why the trial court did not err in imposing two one-year enhancements for prison terms served concurrently. (Pen. Code sections 667.5, subd[s]. (b) & (g))." The order to show cause was limited to the enhancement issue; it did not order reconsideration of the then final restitution fine order entered by Judge Sutton.

On May 12, 1994, Judge James B. Pierce held an order to show cause hearing. Judge Pierces minute order of that date states: "The court finds there are two allowable priors pursuant to Penal Code section 667.5B; further, the five year prior pursuant to Penal Code section 667 A is stricken. Defendants total commitment time is changed to 17 years, 4 months. An amended abstract is to be prepared and a certified copy is to be sent to Department of Corrections." Judge Pierce did not alter Judge Suttons October 15, 1990, $500 restitution fine order. Contrary to defendants arguments, Judge Pierce did not conduct a full probation and sentencing hearing; the only issues involved the enhancements and nothing else. An amended abstract of judgment was issued pursuant to Judge Pierces order. But the amended abstract did not reflect the previously imposed $ 500 restitution fine.

On November 27, 2001, in a minute order addressing an inquiry from the Department of Corrections, Judge Pierce stated: "The courts order of October 15, 1990, for $500 restitution pursuant to section 13967(a) Government Code, is unchanged. Therefore, there is no need to address restitution in the courts orders of May 12, 1994. The judgment clerk shall include said restitution in an amended abstract of judgment and send a copy to the Department of Corrections." On February 6, 2002, the clerk prepared an amended abstract of judgment, but once again failed to include the restitution fine.

The Department of Corrections subsequently requested further clarification. On June 26, 2002, Judge Tomson T. Ong issued a minute order stating as follows: "The Department of Corrections, by letter[,] advised the court that the defendants resentence on 5/12/94 omitted the $500 restitution previously imposed and, therefore, seeks clarification. [¶] Unless required by law to be imposed, by omission upon resentencing, the $500 restitution previously imposed is no longer imposed upon resentencing."

On February 4, 2003, defendant filed a letter in the superior court. Defendant stated, "[P]rison officials [have] refused to strike [his] alleged $500.00 restitution fine." Defendant requested "a Court Order directing the Department of Corrections to strike the October 15, 1990 restitution and follow the 1994 amended Minute Order and Abstract of Judgment." In a minute order dated April 11, 2003, Judge Ong denied defendants request. The minute order states: "Defendants letter/request for the court to strike t[he] restitution fine of $500, is received, on 2/4/03 . . . . The defendants request is considered by this court. The court responds as follows: [¶] Defendants request to strike the restitution fine of $500 is denied. (The court finds no legal basis for the request.)"

On July 7, 2003, defendant filed a habeas corpus petition in the superior court. Defendant sought an order "directing the Prison Official at North Kern State Prison to disregard the 1990 Court Order, and follow the 1994 Court Order." On July 14, 2003, Judge Ong denied the petition. The minute order of that date states: "In People v. Donald Ray Wright, defendant filed a petition for writ of habeas corpus . . . claiming that the court cannot impose the statutorily required restitution fine under Penal Code section 1202.4 and 1202.45. Defendants petition is denied. [¶] First, defendants issue is one that could have been raised on appeal. Therefore, habeas corpus will not lie when the claimed error could have been raised on appeal. [Citation.] [¶] Second, the defendant had previously filed a petition of habeas corpus. Defendant has abused the writ process by filing piecemeal claims, and by filing the instant the writ is denied. [Citation.]" Defendant then filed a habeas corpus petition raising the restitution fine issue. We issued an order to show cause and appointed counsel.

We conclude there is a clerical error in the abstract of judgment which warrants correction. The Supreme Court has set forth the powers of courts to correct clerical errors: "`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. (In re Candelario (1970) 3 Cal.3d 702, 705 [].)" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) The California Supreme Court has explained the role of an appellate court in correcting a clerical error in an abstract of judgment which omits a reference to restitution fine as follows: "In People v. Hong (1998) 64 Cal.App.4th 1071, 1080 (Hong), the court applied these principles in holding that an abstract of judgment must reflect a restitution fine a sentencing court has orally imposed under section 1202.4, subdivision (b). The Hong court reasoned that a restitution fine is part of the judgment and the Legislature intended the abstract of judgment to summarize the judgment. (Hong, supra, 64 Cal.App.4th at p. 1080 [].) The court stressed that its conclusion was `consistent with the unmistakable legislative intention that the Department of Corrections be apprised of the amount of the restitution fine so that it can fulfill its obligations to secure payment from inmates and parolees. (Ibid.) The court also held that where an abstract of judgment omits a restitution fine a sentencing court has orally imposed, `the Attorney General is entitled to seek on appeal to have the abstract of judgment corrected to reflect the judgment of the trial court . . . . (Ibid.)" (People v. Mitchell, supra, 26 Cal.4th at pp. 185-186.)

The Mitchell court held that an appellate court can require the trial court to correct an abstract of judgment that omits a restitution fine, even as part of a defendants appeal. The court held: "We reject the implicit major premise of the Court of Appeals analysis—that an appellate court may not correct clerical error the Attorney General identifies unless the People have a right to appeal from that error. As noted, a court—including an appellate court—that properly assumes or retains jurisdiction of a case `may correct such errors on its own motion or upon the application of the parties. (In re Candelario, supra, 3 Cal.3d at p. 705.) Thus, the Court of Appeal here could have corrected clerical errors in the abstract of judgment without a request from either party. That the Attorney General actually made a request is of no consequence. The Court of Appeal needed no authority under section 1238 to order, at the Attorney Generals request, correction of clerical errors in the abstract of judgment." (People v. Mitchell, supra, 26 Cal.4th at pp. 186-187.) Since we have jurisdiction over this case because of the issuance of the order to show cause, we can order correction of the clerical error.

Here, pursuant to the order to show cause issued by the Supreme Court, Judge Pierce was specifically limited to considering whether there was sufficient evidence to prove a 1985 prior conviction was a serious felony for purposes of imposing a five-year term under section 667, subdivision (a) and it was error to impose two one-year enhancements under section 667.5 for concurrently served prison terms. On May 12, 1994, Judge Pierce found there was insufficient evidence the 1985 prior conviction was a serious felony. He therefore struck the section 667, subdivision (a) five-year enhancement. In addition, Judge Pierce concluded Judge Sutton had in fact erred in imposing two one-year enhancements for concurrently served prison terms in case Nos. A587346 and A322490. Judge Pierce therefore imposed a single one-year enhancement under section 667.5 in connection with those concurrently served prison terms. In addition, Judge Pierce found that the prior prison term served in case No. A464568, as to which the five-year enhancement was stricken, mandated a second one-year enhancement under section 667.5. Judge Pierce modified defendants sentence accordingly. Judge Pierces decision after issuance of the order to show cause on the sufficiency of the evidence questions posed by the Supreme Court did not affect defendants sentence in any other respect. The May 12, 1994, decision did not alter defendants sentence on the three felonies of which he was convicted, nor did it affect two of the three prior serious felony conviction enhancements, and the restitution fine order remained in full force and effect. The Supreme Court did not direct, and Judge Pierce was not required to, once again arraign defendant for imposition of judgment and sentencing. Judge Suttons $500 restitution fine imposed on October 15, 1990, was unaffected by Judge Pierces May 12, 1994, orders. Judge Suttons October 15, 1990, restitution fine determination remains the controlling order. Therefore, the clerk of the superior court is ordered to prepare an amended abstract of judgment, in accordance with Judge Pierces November 27, 2001, order, reflecting the $ 500 restitution fine Judge Sutton imposed on October 15, 1990.

Typically, we would simply issue an opinion and let the superior court clerk handle the matter. But it has been over eight years since a proper abstract of judgment has been on file in this case. A specific order on November 27, 2001, to the clerk by Judge Pierce to correct the abstract to include the restitution fine was not obeyed.

Because of the highly unusual circumstances in this case, this matter is assigned to Judge Wesley, the supervising judge of the criminal division of the trial court. Although Judge Wesley has had no contact with this case to date, it is appropriate that a specific judge be assigned to insure the abstract of judgment is properly amended after the issuance of our remittitur and forwarded to the Department of Corrections. It is also necessary to insure that there be a mechanism to assign responsibility in the event the trial court fails to properly amend and forward the corrected abstract of judgment. We have complete confidence in Judge Wesleys ability to promptly resolve this matter once the remittitur issues. Judge Wesley supervises criminal court operations every day of the week and has done so in one capacity or another for the past several years. The clerk of this court is to insure that both this opinion and the superior court file are delivered directly to Judge Wesley. As is usually the case, defendant and the Department of Corrections are to receive a copy of this opinion. None of this is intended as any criticism of Judge Ong or Judge Pierce. The problem is that this is a rare case where court orders concerning a restitution fine are repeatedly being omitted from the abstract of judgment. Judge Wesley is the supervising judge of the superior court criminal division and given the extraordinary delays to date in complying with the section 1213 duty to prepare a completely accurate abstract of judgment, it is appropriate he insure this case be brought to a conclusion.

The petition for writ of habeas corpus is denied. The trial court shall upon issuance of the remittitur insure the superior court clerk prepares an amended abstract of judgment reflecting the $500 restitution fine and forward it to the Department of Corrections.

We concur: GRIGNON, J., MOSK, J. --------------- Notes: All further statutory references are to the Penal Code except where otherwise noted.


Summaries of

In re Wright

Court of Appeals of California, Second Appellate District, Division Five.
Nov 21, 2003
B169122 (Cal. Ct. App. Nov. 21, 2003)
Case details for

In re Wright

Case Details

Full title:In re DONALD RAY WRIGHT on Habeas Corpus.

Court:Court of Appeals of California, Second Appellate District, Division Five.

Date published: Nov 21, 2003

Citations

B169122 (Cal. Ct. App. Nov. 21, 2003)