Opinion
A159361
05-19-2021
THE PEOPLE, Plaintiff and Respondent, v. TROY DOMINIC MABON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 144197)
Troy Dominic Mabon appeals from a sentence imposed by the trial court in April 2019. We conclude the sentence is unauthorized and remand for resentencing.
BACKGROUND
In 2004, a jury convicted Mabon, then 23 years old, of three felonies: first degree murder (Pen. Code, § 187, subd. (a), count 1) with an enhancement for personally and intentionally discharging a firearm causing death (§ 12022.53, subds. (c) & (d)); possession of a firearm by a felon (former § 12021, subd. (a)(1), count 2); and evading a police officer (Veh. Code, § 2800.2, subd. (a), count 4). In 2005, the trial court sentenced Mabon to 51 years 4 months to life in state prison, comprised of an indeterminate term of 25 years to life on count 1, plus a consecutive 25-year term on the firearm enhancement, and consecutive determinate terms of 8 months each for counts 2 and 4, comprised of one-third the midterm.
Undesignated statutory references are to the Penal Code.
Mabon appealed, contending trial counsel was ineffective for failing to request certain jury instructions. This court affirmed the conviction. (People v. Mabon (Oct. 24, 2006, A109378) [nonpub. opn.].)
A.
In 2017, Mabon petitioned for habeas corpus relief. The trial court denied the petition but noted the abstract of judgment listed the wrong statute for the firearm enhancement. The court amended the indeterminate abstract of judgment in November 2017 but the reference to the firearm enhancement in the amended abstract contained a typographical error.
In 2018, Mabon filed a second habeas corpus petition. He pointed out additional errors in the abstract of judgment and claimed they rendered his sentence illegal. Mabon also requested resentencing pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) which, beginning in January 2018, gives trial courts discretion to dismiss or strike firearm enhancements in the interests of justice. (See People v. Thompkins (2020) 50 Cal.App.5th 365, 388.)
The court denied the petition in March 2018. It determined Mabon was not entitled to relief under Senate Bill No. 620 because his conviction was final and because the court's correction of a clerical error in the abstract of judgment did not "affect [Mabon's] sentence and thus does not constitute a resentencing." On its own motion, the court ordered the correction of several additional clerical errors in the determinate and indeterminate abstracts of judgment, including the date of sentence and the number of custody credits. Shortly thereafter, the court filed the amended abstracts of judgment.
B.
In a June 2018 letter, the California Department of Corrections and Rehabilitation (CDCR) informed the trial court that the abstracts of judgment "may be in error, or incomplete" for several reasons. As relevant here, the CDCR noted the determinate abstract needed correction because the court had imposed consecutive eight-month sentences on counts 2 and 4, but the abstract listed eight-year sentences on those counts. The CDCR also stated that the sentencing triad for count 2 was "16 months, 2 or 3 years" and advised the court that the term for count 2 must "be computed without reference to the indeterminate term. Therefore, pursuant to [section] 1170.1(a), the full term on Count 2 should be imposed consecutive to Count 1."
Mabon refers to the letter as a "[s]ection 1170(d)(1) letter." That statute authorizes a trial court, upon recommendation of the secretary of the CDCR, to "recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if [he] had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) We do not construe the letter—which was from a case records analyst—as recommending recall and resentencing pursuant to section 1170, subdivision (d)(1). The letter did not, either expressly or implicitly, recommend recalling the sentence. Additionally, there is no "indication in the record that the court actually was recalling and resentencing [Mabon] under section 1170." (People v. Humphrey (2020) 44 Cal.App.5th 371, 378; People v. Magana (May 5, 2021, H048353) ___Cal.App.5th___ .)
In February 2019, the court amended both abstracts of judgment, correcting all errors identified by the CDCR except the error regarding count 2. In April 2019—and without holding a hearing or notifying Mabon—the court amended the determinate abstract of judgment again. But rather than correcting the error regarding count 2, the court changed the sentence: it imposed and stayed the consecutive eight-month sentences on counts 2 and 4 pursuant to section 654. With this change, Mabon's total prison term was reduced by 16 months, to 50 years to life in state prison.
Mabon appealed.
DISCUSSION
A court has inherent authority to correct a clerical error in a sentence at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) A clerical error is defined as "one that is made in recording the judgment[.]" (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205, italics added.) Correcting a clerical error makes the record reflect "true facts." (In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).) A court, however, cannot correct a "judicial error . . . by amendment." A judicial error is defined as one made in " 'rendering the judgment,' " where the error is the "result of the exercise of judicial discretion" (id. at p. 705, italics added) or the "result of judicial reasoning and determination." (Estate of Doane (1964) 62 Cal.2d 68, 71.)
"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 . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion." (Candelario, supra, 3 Cal.3d at p. 705.)
Here, the record does not demonstrate that the court's error at the original sentencing hearing was clerical in nature. (Candelario, supra, 3 Cal.3d at p. 705.) Instead, the record supports an inference that when the court sentenced Mabon in 2005, it made a judicial error—i.e., an error " 'rendering the judgment' "—by mistakenly concluding section 1170.1 required it to impose one-third the middle term on count 2. (Candelario, at p. 705; People v. Reyes (1989) 212 Cal.App.3d 852, 858 [section 1170.1 has no application when court imposes indeterminate and determinate terms].) Because section 1170.1 did not apply, the court should have imposed a full term from the applicable sentencing triad on count 2.
When the court modified Mabon's sentence in 2019, it attempted to correct that judicial error by amending the determinate abstract of judgment. (Candelario, supra, 3 Cal.3d at p. 705.) But as our high court has explained, this was "not permitted." (Ibid.) When the court changed the original sentence and stayed the terms for counts 2 and 4, it did not perform a mere clerical act. To the contrary, the court substantially modified the original sentence and materially altered the parties' rights. (Ibid.; People v. Borja (2002) 95 Cal.App.4th 481, 485 [order retroactively modifying length of defendant's sentence did not correct a clerical error; rather, the order imposed "a sentence different from the one that had been intended, imposed and served"].)
In modifying Mabon's sentence, the court also "committed unauthorized sentencing error." (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.) Rather than imposing a full term from the applicable triad for count 2 (as the CDCR directed), the court imposed one-third the middle term, and then stayed that term pursuant to section 654. By applying section 1170.1 where it was inapplicable, the court imposed an unauthorized sentence. (People v. Reyes, supra, 212 Cal.App.3d at p. 856; People v. Benton (1979) 100 Cal.App.3d 92, 102.) Staying the unauthorized term on count 2 did not solve the problem. As the Attorney General acknowledges, the court was required to impose a full term on count 2 before staying that term pursuant to section 654. (People v. Alford (2010) 180 Cal.App.4th 1463.)
We remand for resentencing. (People v. Benton, supra, 100 Cal.App.3d at pp. 102-103 [remanding for resentencing where trial court improperly applied section 1170.1]; People v. Crabtree, supra, 169 Cal.App.4th at p. 1327 [remanding for trial court to impose and stay sentence on one of defendant's convictions].) Remand for resentencing is necessary because it is not "undoubtedly" clear what term the court would have selected from the applicable sentencing triad for count 2 had it followed the CDCR's directions and the law, nor is it clear whether staying counts 2 and 4 was appropriate. (Cf. People v. Alford, supra, 180 Cal.App.4th at p. 1473.)
Mabon argues the trial court, upon remand, is entitled to reconsider all its sentencing choices in light of existing law. (People v. Hill (1986) 185 Cal.App.3d 831, 834 ["When a case is remanded for resentencing . . . , the trial court is entitled to consider the entire sentencing scheme" and "may reconsider all sentencing choices"].) The Attorney General does not appear to oppose a remand for "full resentencing, with its attendant constitutional requirements." Moreover, the Attorney General acknowledges that if the trial court is deemed to have exercised its discretion when it modified Mabon's sentence, then Mabon would, on remand, "be theoretically entitled to request the court . . . exercise additional discretion" under Senate Bill No. 620 and to "supplement the record" for purposes of a youthful offender parole hearing in accordance with People v. Franklin (2016) 63 Cal.4th 261. We have already concluded the court exercised its discretion when it modified Mabon's sentence. Thus, following the Attorney General's logic, we conclude Mabon is entitled to seek the benefit of these ameliorative statutes on remand.
Having reached this result, we need not address Mabon's argument that reversal is warranted for the additional reason that the court modified his sentence in his absence.
DISPOSITION
The judgment of conviction is affirmed. The sentence is reversed, and the matter is remanded for full resentencing. At resentencing, we direct the trial court to decide whether it will exercise its discretion to strike the firearm enhancement under Senate Bill No. 620. The court may also conduct a Franklin proceeding (see People v. Franklin, supra, 63 Cal.4th at pp. 277-278, 283-284), should a party so request. At resentencing, Mabon has the right to be present and to have the assistance of counsel. (People v. Rodriguez (1998) 17 Cal.4th 253, 258-260.)
/s/_________
Rodriguez, J. WE CONCUR: /s/_________
Needham, Acting P. J. /s/_________
Burns, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.