Opinion
As Modified on Denial of Rehearing Aug. 8, 1991.
Review Granted Oct. 3, 1991.
Previously published at 232 Cal.App.3d 25, 3 Cal.App.4th 943, 9 Cal.App.4th 850
Edwin L. Miller, Jr., Dist. Atty., Thomas McArdle and Edward J. Mantyla, Deputy Dist. Attys., for plaintiff and appellant.
John A. Crawford, Jr., San Diego, for defendant and respondent.
NARES, Associate Justice.
This case presents an unusual question: does a trial court, one week after pronouncement of judgment and recordation of the judgment in the minutes, retain jurisdiction to impose a new and different sentence simply because the defendant has been given a one-week stay before his commencement of service of sentence? We answer this question in the negative, and reverse.
BACKGROUND
Nabil Karaman (Karaman) entered a plea of guilty to charges of robbery with personal use of a firearm in violation of Penal Code sections 211 and 12022.5. The lower term of two years on the robbery count was stipulated. On June 8, 1990, the trial court expressly declined to strike the personal use allegation and sentenced Karaman to four years in prison. On request of Karaman's counsel, however, execution of sentence was stayed for one week. The sentence imposed was recorded in the minutes that day.
All statutory references are to the Penal Code unless otherwise specified. As the facts underlying the plea of guilty are not relevant to a resolution of the procedural question presented, we have omitted any discussion of them.
Although formerly the section 12022.5 allegation was among those for which "the court may strike the additional punishment" (§ 1170.1, subd. (h)), by Statutes 1989, chapter 1044, No. 8 West's California Legislative Service, page 3217, it was removed from the list of enhancements subject to striking under section 1170.1, subdivision (h).
On June 15, 1990, the court, on its own motion and pursuant to a notice of motion filed by Karaman's counsel, granted a motion for reconsideration of the sentence previously imposed, struck the section 12022.5 "personal use" allegation pursuant to section 1170.1, subdivision (h), and imposed a new sentence of two years. From this second sentencing the People appeal, asserting the trial court lost power to modify the sentence imposed on June 8 following recordation of the sentence in the minutes. Karaman argues the one-week stay granted him preserved the trial court's power to impose a new and different sentence. We agree with the People's position, and therefore reverse with directions.
QUESTION PRESENTED
Did the trial court, having pronounced judgment which was thereafter entered in the minutes, retain jurisdiction to modify that judgment one week later, where a stay of execution of sentence had been granted the defendant?
DISCUSSION
The fundamental rule governing jurisdiction to modify a sentence of imprisonment was set forth in People v. McAllister (1940) 15 Cal.2d 519, 526-527, 102 P.2d 1072: "If the sentence has been entered in the minutes of the court, or if the defendant has begun serving said sentence or has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced. On the other hand, if the sentence pronounced has not been entered by the clerk in his minutes, and no legal restraint has been imposed upon the defendant by reason of said sentence, then it is proper for the court to change the sentence originally pronounced."
Karaman urges the McAllister language concerning loss of jurisdiction upon entry of the judgment in the minutes is only dicta not necessary to the decision. To the contrary, because McAllister was given only a fine in the morning session, the Supreme Court clearly recognized he "could not have been placed under any restraint by reason of said sentence." (People v. McAllister, supra, 15 Cal.2d at p. 524, 102 P.2d 1072.) Thus the language about loss of jurisdiction upon commencing restraint may be dicta, but the McAllister court's reliance on the fact "the sentence pronounced by the court at its morning session had not been entered in the minutes of the court prior to the afternoon session" (ibid.) at which McAllister was resentenced was indeed necessary to the decision, and thus was not dicta.
The point of the rule, as later discussed and analyzed in People v. Thomas (1959) 52 Cal.2d 521, 534, 342 P.2d 889, was to avoid "the absurd and injurious consequence of precluding a trial judge from timely correction of either a slip of the tongue or an announcement of sentence which is based on a mistake of fact or law, which has not become of record in the minutes, and which has not affected the defendant."
By the clear language of McAllister, jurisdiction to modify a sentence is lost either (1) upon entry of the judgment in the minutes (typically following adjournment of the court for the day) or (2) upon commencement of service of sentence. The first event, pronouncement of judgment and recordation of it in the minutes, "is the California version, adapted to the operation of our courts (which, since adoption of our 1879 Constitution, no longer have terms), of the common law rule that ordinarily a court can change its judgment during the term at which it was rendered but not thereafter. [Citations.]" (People v. Thomas, supra, 52 Cal.2d at p. 530, 342 P.2d 889.)
When judgment on a conviction is rendered, the clerk "must enter the same in the minutes." (§ 1207.) This must be done in a reasonable time after pronouncement, which "may depend upon the circumstances of each particular case. Usually the practice of the courts of this state is for the clerk to make up his minutes following the adjournment of the court for the day." (People v. McAllister, supra, 15 Cal.2d at p. 527, 102 P.2d 1072.) In civil matters, "[u]ntil a judgment is entered, it is not effectual for any purpose (Code Civ.Proc., § 664), and at any time before it is entered, the court may change its conclusions of law and enter a judgment different from that first announced. [Citations.]" (Phillips v. Phillips (1953) 41 Cal.2d 869, 874, 264 P.2d 926, emphasis added.)
The second event, loss of jurisdiction to modify upon the commencement of service of sentence, simply recognizes the rule which has existed since 1872 requiring the personal presence of the defendant at a felony sentencing. (§ 1193, subd. (a), formerly § 1193, subd. (1).) The transportation of the defendant to commence service of sentence would act to deprive the court of jurisdiction to modify a sentence even when it had not yet been entered into the minutes.
In cases where the attempted resentencing involves an increase in punishment, as distinguished from the melioration of punishment attempted herein, considerations of double jeopardy also forbid resentencing of a defendant who has already begun service of a valid sentence. (People v. Thomas, supra, 52 Cal.2d at pp. 530-531, 342 P.2d 889.)
Thus, as indicated by the analysis in Thomas, the use of disjunctive conditions for termination of jurisdiction in McAllister was deliberate rather than inadvertent. The absence of a defendant who had been transported or the failure of a court to vacate a sentence before the close of business on the day of rendition would terminate the power of that court to impose a new and different sentence.
This view comports well with the purpose of not "precluding a trial judge from timely correction of either a slip of the tongue or an announcement of sentence which is based on a mistake of fact or law, which has not become of record in the minutes." (People v. Thomas, supra, 52 Cal.2d at p. 534, 342 P.2d 889.) In this case there was neither a slip of the tongue nor any mistake of fact or law when sentence was pronounced on June 8. The purported new sentence announced the next week was instead an attempt to undo what was already done and final, a result not within the contemplation of the rules for sentencing.
When on June 15 the court announced its intention to "discuss further" the gun-use enhancement, the District Attorney argued "at this point the court would not have jurisdiction." The court, after agreeing the "comments regarding the jurisdiction of the court may very well be well-taken" nonetheless went on to say that "because of what I perceive to perhaps be not the exercise of my entire discretion at the time of sentencing on last Friday I am going to change the sentence in this case." Having once determined an appropriate exercise of its discretion, as the People correctly pointed out, the court was without power one week later "to change the sentence in this case."
A factual pattern very similar to this case was presented in People v. Jaramillo (1962) 208 Cal.App.2d 620, 25 Cal.Rptr. 403. There, the defendant was sentenced to state prison, following which he requested time to make a motion for new trial and received a stay of execution for one week for this purpose. The reviewing court noted "[t]he fact that judgment had been pronounced orally was not a bar because the judgment would not be effective until entered by the clerk." ( Id. at p. 627, 25 Cal.Rptr. 403.) But on Jaramillo's return to court one week later, "it was too late because the judgment had been entered." (Ibid.) This court, in an identical factual situation, cited this rule with approval in People v. Grake (1964) 227 Cal.App.2d 289, 292-293, 38 Cal.Rptr. 666.
While in both Jaramillo and Grake the courts' inadvertance in failing prior to recordation to set aside the judgment did entitle the defendants to a hearing on their motions for new trial, in this case there was no inadvertance whatsoever in pronouncement and entry of the judgment. Instead, the court simply had second thoughts (see fn. 6, ante), and then attempted one week later to alter its previous (and presumably deliberated) determination as to the proper sentence. This it had not the power to do.
In re Wimbs (1966) 65 Cal.2d 490, 498, 55 Cal.Rptr. 222, 421 P.2d 70 involved imposition of a consecutive sentence on May 23, and entry on July 13 of a "corrected" judgment ordering the sentence to instead run concurrently. Our Supreme Court resolved the issue directly: "The court was without power to thus 'correct' its sentence as pronounced and formally entered in the minutes. [Citations.] As the Attorney General points out, the purported 'correction' was not of merely clerical error or inadvertance but an attempt, in excess of the court's power, to revise its deliberately exercised judicial discretion." (Ibid., fn. omitted. See also In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729, and People v. Drake (1981) 123 Cal.App.3d 59, 63, 176 Cal.Rptr. 186.) The disposition was that the order "purporting to make its sentence run concurrently ... is set aside and the Adult Authority is directed to consider . the sentence as consecutive in accordance with the judgment pronounced on May 23." (In re Wimbs, supra, 65 Cal.2d at p. 499, 55 Cal.Rptr. 222, 421 P.2d 70.)
There is no question the judgment pronounced on June 8 could have been modified before entry of the judgment in the minutes and commencement of restraint. The fact the restraint in this case was not commenced does not mandate a different result. Here, the week-long delay between the two sentences demonstrates, as in In re Wimbs, that this matter does not involve a mistake sought to be corrected, but a judicial action which is later attempted to be undone. Under the foregoing authorities, the court was without power to do this.
The People also argue the one-week stay given Karaman after his sentencing was improper and unauthorized. Karaman responds by effectively conceding its illegality, but also points out the People did not file a timely appeal from any orders of June 8, and thus ancillary matters connected with that sentencing are not before us. Just as we need not resolve the last question posed by the People, whether Karaman's motion for reconsideration was proper, in light of our resolution of the issue concerning the attempted resentencing of June 15, we need not decide whether the one-week stay of June 8 was proper.
We deal here with the purposes which are served by the rules governing when a court may withdraw a previous sentence and enter a new and different sentence. While inadvertance is readily correctible when timely discovered, the deliberated imposition of sentence may not, after entry of the considered judgment in the minutes, be withdrawn or modified by the court which imposed it. In accordance with these rules, jurisdiction to modify here expired upon entry of the June 8 sentence in the minutes, after which the June 8 sentence was fully effective, and the attempted resentencing of June 15 of no legal effect.
As Karaman had not commenced service of sentence, no question is here presented concerning the power of a trial court to resentence pursuant to section 1170, subdivision (d). (See, e.g., Dix v. Superior Court (1991) 53 Cal.3d 442, 445-465, 279 Cal.Rptr. 834, 807 P.2d 1063.)
Karaman now argues that notwithstanding this conclusion, as in the case of People v. Tanner (1979) 24 Cal.3d 514, 521-522, 156 Cal.Rptr. 450, 596 P.2d 328, it would be unjust to order him to serve the remainder of his lawful sentence. Tanner, however, involved an unsettled point as to the power of a trial court to grant probation, and in this case no such question is presented, and thus there is no valid basis for the requested relief. (People v. Enriquez (1985) 173 Cal.App.3d 990, 997, 219 Cal.Rptr. 325.) Finally, as pointed out in People v. Almodovar (1987) 190 Cal.App.3d 732, 749, 235 Cal.Rptr. 616, and People v. Gonzales (1979) 96 Cal.App.3d 725, 728, 158 Cal.Rptr. 205, granting such relief effectively nullifies the People's statutory right of appeal from an unlawful sentencing. For the above reasons, we decline Karaman's invitation to excuse his compliance with the law.
DISPOSITION
The judgment entered on June 15 is reversed. The trial court is directed to correct its minutes to reflect imposition of a sentence of four years in accordance with the final judgment lawfully imposed on June 8, 1990, and notify all appropriate authorities thereof.
TODD, Acting P.J., THOMPSON, J., concur.