Opinion
C085959
08-07-2018
THE PEOPLE, Plaintiff and Respondent, v. K. DEANE HAWLEY FENNER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S12CRF0115)
Defendant K. Deane Hawley Fenner appeals a judgment entered after revocation of probation, which he had been granted following his no contest plea to two counts of residential burglary. He asks that we correct the arithmetical error in the pronouncement of sentence that added an additional two months to the sum total of the terms separately delineated by the trial court at the sentencing hearing.
We modify the judgment to reflect the actual sum total of the terms imposed by the trial court for the two burglaries and affirm the judgment as modified.
FACTUAL AND PROCEDURAL HISTORY
Defendant pleaded no contest to two residential burglaries and was granted probation. Later, defendant violated his probation conditions and probation was revoked. At the sentencing hearing, the trial court stated defendant's sentence as follows: "The Court will order that the Defendant serve the middle term of four years for Count 1. [¶] The Court will order that the Defendant serve one-third the middle term of four years; in other words, 16 months consecutive to the term imposed in that Count 1 for a total term of five years and six months." This pronouncement of sentence mirrored the recommended sentence from the probation department's supplemental sentencing report that was reviewed and considered by the court prior to sentencing. The abstract of judgment reflected the mathematically correct total prison term of five years four months.
DISCUSSION
Defendant asks that we correct the trial court's mathematical error in its pronouncement of sentence. The People concur we should and must correct this error.
As the Supreme Court explained in In re Candelario (1970) 3 Cal.3d 702, 705: "[A] court has inherent power to correct clerical errors in its records so as to make these records reflect true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [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.] [¶] 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. [Citations.]" (Ibid., questioned on other grounds in People v. Turner (1998) 67 Cal.App.4th 1258, 1268 [inferred leniency unavailable by operation of statute].)
"Computational errors of this kind result in an unauthorized sentence, and are subject to correction by the trial court or the appellate court when presented." (People v. Guillen (1994) 25 Cal.App.4th 756, 764 [correcting mathematical error in custody credits].) "[W]hen the sentence issue presented is essentially arithmetic in nature, involving no factual assessment or exercise of discretion and, in fact, will take no more than a few minutes of appellate time, it is far more economical to resolve it through the appellate process than to require the institution of a trial court proceeding." (Ibid.)
Here, the trial court exercised its discretion, clearly delineating the terms imposed for the two burglary counts (4 years and 16 months, respectively). It then announced the total term was "five years and six months," repeating a computational error contained in the probation report. We concur that we can and should correct this clerical, computational error. (See People v. Guillen, supra, 25 Cal.App.4th at p. 764; accord Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506-507 [modifying civil judgment to correct mathematical error in amount of money owed as the subtraction error was apparent on the record and not the result of judicial discretion].) Therefore, the judgment will be corrected to reflect the actual sum total of the two terms imposed by the trial court at sentencing.
DISPOSITION
We modify the judgment to reflect the actual sum total of the two terms imposed by the trial court for the two burglaries: five years four months. Because the abstract of judgment already contains the correct total term, no modification of that document is required. The judgment is affirmed as modified.
/s/_________
HOCH, J. We concur: /s/_________, Acting P. J.
HULL /s/_________
RENNER, J.