Opinion
H042913 H043577
04-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JAMES MARKRELL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC940297)
I. INTRODUCTION
Defendant Robert James Markrell was convicted by plea of two counts of second degree robbery and two counts of attempted second degree robbery (Pen. Code, §§ 664, 211, 212.5, subd. (c)). He admitted having four prior strike convictions (§§ 667, subds. (b) - (i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)), and that he had served one prior prison term for a violent felony conviction (§ 667.5, subd. (a)) and three other prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
At a sentencing hearing on October 9, 2015, the trial court explained that although the court was going to sentence defendant that day, the court was "not going to sentence [him] completely." Rather, the court was going to "continue" the matter to January 2016 regarding the calculation of presentence custody credits. The court's express purpose in doing so was to allow defendant to have a surgery before being sent to prison. Based on the court's prior ruling on defendant's Romero motion dismissing three of defendant's four strikes, the court imposed a prison term of 23 years eight months and set a further hearing regarding the calculation of credits.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The final sentencing hearing was ultimately held on April 29, 2016. At the hearing, the trial court granted the prosecution's motion for reconsideration of defendant's Romero motion, finding that defendant had committed a fraud on the court by submitting forged doctor letters. Upon reconsideration of defendant's Romero motion, the court denied the motion as to one count, but granted it as to three counts, and sentenced defendant to a total term of 25 years to life consecutive to 11 years.
Defendant filed notices of appeal after the October 9, 2015 hearing and after the April 29, 2016 hearing. This court ordered defendant's two appeals (case Nos. H042913 and H043577) considered together for briefing, oral argument, and decision.
On appeal, defendant contends that the trial court did not have jurisdiction to increase the sentence imposed on October 9, 2015, and that the longer sentence subsequently imposed by the court in April 2016, is therefore void. He also argues that the court lost jurisdiction after he filed notices of appeal on October 16 and December 4, 2015. Defendant further contends that his presentence custody credits should be calculated based on the October 2015 sentencing date rather than the later April 2016 sentencing date.
For reasons that we will explain, we will affirm the April 29, 2016 judgment.
II. BACKGROUND
The facts underlying defendant's offenses are not relevant to the claims raised on appeal. The pertinent procedural history follows.
A. The Information and Pleas
In 2009, defendant was charged by information with two counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 2 & 4), two counts of attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); counts 1 & 3), one count of possession of methamphetamine (former Health & Saf. Code, § 11377, subd. (a); count 5), and one count of possession of cocaine (former Health & Saf. Code, § 11350, subd. (a); count 6). The information further alleged that defendant had two prior serious felony convictions (§ 667, subd. (a)) and four prior strikes (§§ 667, subds. (b) - (i), 1170.12), and that he had served one prior prison term for a violent felony conviction (§ 667.5, subd. (a)) and three other prior prison terms (§ 667.5, subd. (b)).
The information also included robbery and attempted robbery allegations as to Craig Stephen Shipley, who is not a party to this appeal.
In February 2010, defendant pleaded guilty to the robbery and attempted robbery counts (counts 1 - 4) and admitted all the prior allegations. The remaining counts were submitted for dismissal at the time of sentencing.
B. The Romero Motion
In 2013, defendant filed a sentencing memorandum in which he requested that the trial court dismiss his prior strikes pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. The prosecution contended that the court should not dismiss any of defendant's strikes. The trial court ultimately dismissed three of defendant's four strikes. Among the reasons identified in the court's written order for dismissing the strikes was that defendant's physical health was "not good."
C. The First Sentencing Hearing on October 9 , 2015
A sentencing hearing was held on October 9, 2015. After indicating that it had received the probation report, the trial court asked, "And is there any legal cause?" Defense counsel responded, "No." The trial court then stated: "Let me just indicate to you, [defendant] what I'm doing. I am going to be sentencing today, that's number 1. [¶] Number 2, I am going to continue to the first week in January the imposition of credits. [¶] The reason why I am doing that is two-fold. Number 1, I want you to have this operation . . . . [W]e waited this long. I want you to have it. I want things to be healed up. I want you to be in the best possible position you can be in. [¶] And as far as I am concerned, I will do anything necessary to cooperate with that goal, either by way of - if you get shipped, for some reason that I can't imagine, but if you do, I will pull you back here under [section] 1170 (d). You will not have your credits, so I don't think they will be shipping you. [¶] But [defense counsel] is going to stay in absolute contact with me and [the prosecutor]. And anything that goes on, you will be brought back here. And I just want you to understand that."
The trial court subsequently heard argument from defense counsel and the prosecutor regarding the length of the prison sentence to be imposed by the court.
Defendant then directly addressed the trial court regarding his prior Romero motion and his crimes, among other matters, and requested that the court impose "the lowest term possible." Defendant then had the following exchange with the court:
"[DEFENDANT]: I will address a concern. Once you sentence me I'm on a bus out of here. That's just how it works. That's what they do.
"THE COURT: I am not going to sentence you completely today.
"[DEFENDANT]: Well, I'm just telling you what I've seen in the six and a half years I have been here.
"THE COURT: I absolutely understand, because I've seen it for 30 years. So I know what you're saying. I'm going to make sure it doesn't.
"[DEFENDANT]: Maybe you can write on the snap out, 'Do not transport.'
"THE COURT: We are going to do everything we can."
Defendant proceeded to describe the circumstances of his proposed surgery and had the following exchange with the court:
"[DEFENDANT]: I broke it down to [the doctor], 'This is what's going on. They are going to sentence me if you don't get this surgery done. In fact, I need a letter that states why you have been delaying this . . . .' So she did a letter. I just barely got the letter. You guys got the consent and the letter. So everything's going to happen in December. I got two procedures that they got to do prior to that . . . . So that's where we're at.
"THE COURT: Okay.
"[DEFENDANT]: But if you sentence me, I kind of think I'm going to be on bus [sic]. I'm going to resist it. I'll probably be in trouble. Because I need this surgery. I don't want to go to prison like this, sir.
"THE COURT: I am going to do everything humanly possible.
"[DEFENDANT]: Why don't you put off sentencing to January so it's locked in?
"THE COURT: I'm not doing that."
Defense counsel interrupted the trial court, and an unreported discussion was held. Immediately thereafter, the following exchange occurred between defense counsel, the court, and defendant.
"[DEFENSE COUNSEL]: Your honor, if you don't order credits and maybe probation
"THE COURT: The sentence is not completed.
"[DEFENSE COUNSEL]: They can't prepare the abstract.
"THE COURT: And, as I understand it, if I give another court date, he is not to be moved.
"[DEFENSE COUNSEL]: And the other
"THE COURT: And I'm doing a separate order not to move him.
"[DEFENSE COUNSEL]: I know that part of the whole transport thing is getting post conviction to prepare the paperwork.
"THE COURT: Correct.
"[DEFENSE COUNSEL]: We certainly
"THE COURT: They can't do it.
"[DEFENSE COUNSEL]: They can't. And we sort of have control whether that's submitted.
"THE COURT: I would like to think so.
"[DEFENSE COUNSEL]: Yeah. So I think we are doing something I've never done in 20 years.
"[DEFENDANT]: Okay. So in addition, can you at least write on the snap out 'Do not transfer'?
"THE COURT: We are going to do everything."
After defendant addressed the trial court regarding other issues, the court explained the basis for the sentence it intended to impose. During the course of this explanation, the court stated that it was "very empathetic about [defendant's] medical condition," and that his medical condition was "in large part . . . why the court struck or dismissed the strike priors."
The trial court ultimately ordered: "The defendant is committed to the California Department of Corrections and Rehabilitation for a period of 23 years and 8 months." The total term was calculated as follows: a term of six years (double the middle term) on count 2 (second degree robbery, §§ 211, 212.5, subd. (c)); consecutive terms of 16 months each (one-third the middle term, doubled) on counts 1 and 3 (attempted second degree robbery, §§ 664, 211, 212.5, subd. (c)); a consecutive term of two years (one-third the middle term, doubled) on count 4 (second degree robbery); consecutive terms of five years each for the two prior serious felonies (§§ 667, subd. (a)); and consecutive terms of one year each for the three prison priors (§ 667.5, subd. (b)). The court imposed then stayed the additional punishment for the remaining prison prior (§ 667.5, subd. (a)). The remaining counts were dismissed.
The trial court stated that "[t]he credits on this matter will be set on" January 8, 2016 at 9:00 a.m., subject to the court's availability. The court ordered that defendant "not . . . be moved from the county jail until the credits are restored," and that no abstract of judgment be "prepared until the credits are accorded." The court imposed various fines and fees, and ordered defendant to pay restitution. The court informed defendant that he had "the absolute right to appeal this judgment when it becomes final. And as far as the court is concerned, it will become a judgment on the 8th of January at 9:00 o'clock right here in this department. . . . And there is a right of appeal that I will advise you of further."
The court clerk prepared minutes of the October 9, 2015 hearing. The minutes reflect the sentence imposed on counts 1 through 4 and indicate that a "further" hearing was set for January 8, 2016, to "address" custody credits. (Uppercase omitted.)
On October 16, 2015, defendant filed a notice of appeal.
On October 19, 2015, an abstract of judgment was prepared by the court clerk. The section in the abstract regarding custody credits indicates that credits will be "[a]ddress[ed]" on January 8, 2016.
On December 4, 2015, defendant filed a second notice of appeal.
A further hearing was held on January 8, 2016. The clerk's minutes reflect that the matter was set for another hearing on March 4, 2016, with the "parties to prepare arguments in writing."
The clerk's minutes for the March 4, 2016 hearing reflect that the prosecution was seeking "reconsideration" regarding defendant's sentence, and that a further hearing was scheduled for April 2016.
D. The Prosecution's Motion for Reconsideration of Defendant's Romero Motion
On April 8, 2016, the prosecution filed a motion for reconsideration regarding defendant's Romero motion, requesting that the trial court deny the motion and sentence defendant to a term of 100 years to life consecutive to 40 years. The prosecution contended that defendant had obtained continuances of the hearing on his Romero motion and sentencing, due to health issues and surgery that he allegedly needed but that the county purportedly failed to perform and/or delayed performing. However, in seeking the continuances the prosecution argued that defendant had committed fraud and forgery and obstructed justice.
In particular, the prosecution contended that defendant had submitted four letters, purportedly authored by his doctor, regarding the possibility of imminent surgery and a request to delay sentencing. The letters indicated that defendant's condition had worsened and that his surgery was rescheduled for a later date. However, the prosecution concluded upon investigation that defendant forged two or three of the letters. The prosecution's investigation further revealed that defendant had postponed the surgeries multiple times and that he had refused to go to his medical appointments.
The prosecution contended that the trial court had the authority to reconsider its "interim ruling" on defendant's Romero motion because the case "was still subject to further proceedings since Defendant ha[d] not been sentenced due to his excessive continuance requests." The prosecution argued that the court only "quasi-sentenced Defendant" on October 9, 2015, because the court "did not grant Defendant his appropriate credits for time served" and thus it did "not effectuat[e] Defendant's prison sentence." Regarding defendant's Romero motion, the prosecution contended that defendant's prospects for a crime-free life was "zero" in view of him continuing to commit crimes while awaiting a Romero hearing and sentencing.
Defendant filed opposition to the prosecution's motion for reconsideration, contending that the trial court did not have jurisdiction to reconsider his sentence. He argued that the abstract of judgment, as prepared by the clerk, indicated that the trial court had imposed and executed sentence. According to defendant, because his sentence had been executed, the court had no jurisdiction to resentence him. Defendant further contended that a notice of appeal had been filed and that the court accordingly lost jurisdiction to do anything that could affect the judgment.
E. The Further Hearing on April 29 , 2016
On April 29, 2016, a hearing was held on the prosecution's motion for reconsideration. Defendant contended that he had been sentenced on October 9, 2015, and that the trial court did not have the authority to increase his sentence. He argued that "the only thing" the court did not do on October 9 was order custody credits, but that was "simply for the purpose of [him] [n]ot being transported."
The prosecution contended that defendant "wasn't sentenced." The prosecution argued that the sentence "ha[d] not been completed" because custody credits had not been ordered.
The trial court first determined that there was no "final judgment" in the case. The court "view[ed the case] in the no-good-deed-goes-unpunished rule of law." Regarding the abstract of judgment, the court explained that it "was prepared according to what the Court had ruled on in terms of the strike motion and selection of terms and it was memorialized waiting a final judgment which was to be imposed . . . sometime in January . . . ." The court stated that its intent was "to do [defendant] [a] favor and allow him to have the surgery go forward . . . , and he was never committed to the custody of the California Department of Corrections [and] Rehabilitation in a formal legal sense." The court indicated that defendant would have been committed after custody credits were granted. The court believed a sentence was "not complete until the trial court places on the record the custody credits." Until that time, the court believed it could "reconsider" matters that "directly affect the sentence." The court stated that it was not the court's intent to have a final judgment, and that it had the right to and would "set aside [the] tentative judgment."
Next, the trial court found that defendant had committed a fraud on the court and both counsel by submitting forged letters. As a consequence, the court granted the prosecution's motion for reconsideration. Upon reconsideration, the court denied defendant's Romero motion to dismiss the strike allegations as to count 2, but granted defendant's Romero motion as to counts 1, 3, and 4. The court believed that defendant had "continued to engage in the pattern of criminality and defrauding the Court," but that the strike allegations should be dismissed as to some of the counts due to defendant's medical condition and the prohibition against cruel and unusual punishment.
The trial court then sentenced defendant to a total term of 25 years to life consecutive to 11 years. The sentence consists of a term of 25 years to life on count 2 (second degree robbery, §§ 211, 212.5, subd. (c)); consecutive terms of five years each for the two prior serious felonies (§§ 667, subd. (a)); a consecutive term of one year for one of the prison priors (§ 667.5, subd. (b)); concurrent middle terms of two years each on counts 1 and 3 (attempted second degree robbery, § 664); and a concurrent middle term of three years on count 4 (second degree robbery). The court indicated that the convictions underlying two other prison priors had been reduced to misdemeanors, and that the enhancement for those prior prison terms would not be imposed. The record reflects that the court struck the additional punishment for the remaining prison prior (§ 667.5, subd. (a)) and that the remaining counts were dismissed. Defendant was granted 2,964 days of custody credits. He was also ordered to pay various amounts, including restitution. The court committed defendant to the Department of Corrections and Rehabilitation and denied defendant's request for a stay of two weeks. The court believed that the notice of appeal previously filed by defendant was not "proper" and ordered that it be "reinstated."
On May 2, 2016, defendant filed another notice of appeal.
III. DISCUSSION
Defendant contends that the trial court did not have jurisdiction to increase the sentence imposed in October 2015, after it was entered in the minutes, and that the longer sentence subsequently imposed by the court in April 2016, is therefore void. He also argues that neither a fraud on the court nor the court's failure to calculate custody credits permitted the court to later increase his sentence. Defendant further contends that, as a result of the court pronouncing sentence in October 2015, and defendant filing notices of appeal thereafter in October and December 2015, the court lost jurisdiction to make any further order affecting the judgment. Lastly, defendant argues that his presentence custody credits should be calculated based on the October 2015 sentencing date rather than the later April 2016 sentencing date.
We note that defendant cites People v. Kirkpatrick (1991) 1 Cal.App.4th 538 (Kirkpatrick), for the proposition that a trial court has no jurisdiction to impose a longer sentence after it has been entered in the minutes, notwithstanding the defendant's commission of a fraud on the court in connection with sentencing. In Kirkpatrick, the appellate court determined that "intrinsic fraud" (id. at p. 544) would not provide a legal basis for increasing a sentence after it was entered in the minutes. (Id. at pp. 544-545.) However, it "carefully examined the Attorney General's argument" that "extrinsic fraud" would provide such a legal basis (id. at pp. 543-544.), and ultimately determined that the fraud that had occurred in the case before it did not constitute extrinsic fraud. (Id. at p. 544.) Because we determine for other reasons that the trial court had jurisdiction to increase defendant's prison term on April 29, 2016, we do not address the type of fraud defendant committed in this case or whether his commission of fraud would have provided a legal basis for the trial court to increase his sentence.
The Attorney General contends that the trial court had jurisdiction to resentence defendant in April 2016, because execution of the sentence imposed in October 2015 had not yet commenced. The Attorney General also argues that the court was not divested of jurisdiction upon the filing of a notice of appeal in 2015, because the court never relinquished custody of defendant. Lastly, the Attorney General contends that presentence custody credits were correctly calculated based on the April 2016 sentencing date.
A. Whether the Trial Court Sentenced Defendant in October 2015 and Lost Jurisdiction to Increase Defendant's Sentence in April 2016
1. Legal principles
"In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.] A judgment in a criminal case may consist of a fine, a term of imprisonment, or both [citation]." (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 (Karaman).) In addition, " '[t]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d); see also id., subd. (a).)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter); see also Cal. Rules of Court, rules 4.310, 4.472.) "A sentence that fails to award legally mandated custody credit is unauthorized." (People v. Taylor (2004) 119 Cal.App.4th 628, 647 (Taylor).)
All further rule references are to the California Rules of Court.
Rule 4.433(d), provides that sentencing must occur and be determined in a single hearing unless the sentencing judge orders otherwise in the interests of justice. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044 (Cunningham) [discussing predecessor rule, former rule 433(d)].)
The court clerk must enter the judgment in the minutes only "[w]hen judgment upon a conviction is rendered." (§ 1207.) "Entry of the judgment in the minutes of the court is a clerical function. [Citation.]" (Karaman, supra, 4 Cal.4th at p. 345, fn. 11.) Similarly, the abstract of judgment is a clerical record that may be prepared only upon pronouncement of judgment. (§ 1213; People v. Delgado (2008) 43 Cal.4th 1059, 1070 (Delgado); see Karaman, supra, at p. 344.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.]" (People v. Zackery (2007) 147 Cal.App.4th 380, 385 (Zackery).)
After a "valid sentence" has been formally entered in the minutes, the trial court may not increase the sentence. (Karaman, supra, 4 Cal.4th at p. 350.) "Various authorities indicate that double jeopardy concerns would be implicated were the trial court to attempt to increase the sentence after its formal entry in the minutes. [Citations.]" (Id. at p. 350, fn. 16.)
"By contrast, where the court is required to impose a certain minimum term but imposes a lesser term instead, the unauthorized sentence is considered invalid or 'unlawful' and may be increased even after execution of the sentence has begun. [Citations.]" (Karaman, supra, 4 Cal.4th at p. 349, fn. 15.)
In contrast, a trial court retains jurisdiction, at any time prior to execution of the sentence, to impose a new sentence "which is not greater than the initial sentence, just as it may do so on its own motion pursuant to section 1170, subdivision (d), within 120 days after the court has committed the defendant to the prison authorities." (Karaman, supra, 4 Cal.4th at p. 352.)
"In a criminal case, the execution of a judgment of conviction is the process of carrying the judgment into effect. [Citation.]" (Karaman, supra, 4 Cal.4th at p. 344, fn. omitted.) When "the judgment is for incarceration in a state prison, either a certified copy of the minute order or a certified abstract of the judgment 'shall be forthwith furnished to the officer whose duty it is to execute the . . . judgment, and no other warrant or authority is necessary to justify or require its execution'; the certified abstract or minute order constitutes the commitment. (§ 1213; . . . .)" (Ibid., fn. omitted.)
2. Analysis
In this case, we determine that the trial court had jurisdiction on April 29, 2016 to impose a longer prison term than it had initially announced on October 9, 2015, because the court at the initial October 9, 2015 hearing continued sentencing to a later date for the calculation of custody credits. We reach this conclusion for the following reasons.
First, the trial court was required to determine defendant's custody credits at the time of sentencing. (Buckhalter, supra, 26 Cal.4th at p. 30; § 2900.5, subd. (d); see also § 2900.5, subd. (a); rules 4.310, 4.472.) If the court had failed to award legally mandated custody credit, the resulting sentence would have been unauthorized. (Taylor, supra, 119 Cal.App.4th at p. 647.)
Second, the trial court had the authority to determine defendant's sentence over the course of more than one hearing. (Rule 4.433(d); see Cunningham, supra, 25 Cal.4th at p. 1044.) In this case, the trial court continued the October 9, 2015 sentencing hearing for the calculation of custody credits.
Third, prior to the trial court completing its oral pronouncement of defendant's sentence on April 29, 2016, no judgment was rendered. (See Karaman, supra, 4 Cal.4th at p. 344, fn. 9 ["judgment is rendered when the trial court orally pronounces sentence"].)
Fourth, it is only upon a judgment being rendered that the clerk has a duty to enter the judgment in the minutes and prepare an abstract of judgment. (See §§ 1207, 1213; Delgado, supra, 43 Cal.4th at p. 1070; Karaman, supra, 4 Cal.4th at pp. 344, 345, fn. 11.) To the extent the minutes prepared by the clerk inaccurately reflect what transpired during a sentencing hearing, or the clerk prematurely prepares an abstract of judgment, those clerical errors cannot deprive a trial court of jurisdiction to complete its sentencing of the defendant. (See Zackery, supra, 147 Cal.App.4th at p. 385.)
In this case, the record reflects that at the sentencing hearing on October 9, 2015, the court imposed part of defendant's sentence, including a prison term of 23 years 8 months. However, at that same hearing, the court stated that it was "not going to sentence [defendant] completely [that day]." Rather, the court was "going to continue to the first week in January the imposition of credits." The court explained that its purpose in continuing the issue of credits was to allow defendant to have an operation in the meantime and to "be healed up" before going to prison. Indeed, defendant repeatedly expressed concern about being sentenced that day and being placed "on a bus out of here." The court indicated that it was "going to do everything humanly possible" to prevent that from happening. To that end, defense counsel and the court indicated an understanding that if the court did not "order credits" at that time and instead set another hearing, then "[t]he sentence is not completed," an abstract of judgment could not be prepared, and defendant could "not . . . be moved." The court, in accordance with this understanding and after pronouncing part of defendant's sentence, set a further hearing on the issue of presentence custody credits for January 8, 2016. The court stated that "there is . . . going to be no abstract of judgment prepared until the credits are accorded." The court further informed defendant that he had "the absolute right to appeal this judgment when it becomes final," and that it would "become a judgment" after the continued sentencing hearing, which the court originally set for January 8, 2016.
Further hearings regarding sentencing were scheduled, and the final sentencing hearing ultimately took place on April 29, 2016. The trial court's statements at the April 29, 2016 hearing are consistent with its earlier expressed intent that sentencing would not be complete until presentence custody credits were determined. The court stated that a sentence is "not complete until the trial court places on the record the custody credits." Until that time, the court could "reconsider" matters that "directly affect the sentence." The court indicated that defendant would have been committed after custody credits were granted. The court explained that its intent was "to do [defendant] [a] favor and allow him to have the surgery go forward . . . , and he was never committed to the custody of the California Department of Corrections [and] Rehabilitation in a formal legal sense." Regarding the abstract of judgment, the court explained that it "was prepared according to what the Court had ruled on in terms of the strike motion and selection of terms and it was memorialized waiting a final judgment which was to be imposed . . . sometime in January . . . ."
The record thus reflects that the court did not complete its oral pronouncement of defendant's sentence on October 9, 2015, and that the sentencing hearing was continued to a later date for the calculation of custody credits. Under the circumstances, no judgment could have been entered in the October 9, 2015 minutes of the court, and the preparation of an abstract of judgment based on the oral proceedings of October 9, 2015 was premature. In view of the record, we determine that the court had jurisdiction to reconsider and increase the length of defendant's prison term at the final sentencing hearing on April 29, 2016.
We are not persuaded by defendant's contention that the entry in the clerk's minutes of the initial sentence of 23 years eight months, as well as the clerk's preparation of the October 19, 2015 abstract of judgment, precluded the trial court from thereafter imposing a longer prison term. As we have explained, the court continued the sentencing hearing to a later date for calculation of presentence custody credits so that defendant could have surgery in the meantime. Defendant raises no issue regarding the court's authority to consider sentencing matters over the course of more than one hearing. (See rule 4.433(d) [in interests of justice, court may hear and determine sentencing matters at more than one hearing].) The clerk's recordation, in the minutes and in an abstract of judgment, of the prison term initially pronounced by the court, could not convert the court's pronouncement of only part of defendant's sentence into a final judgment, where the court clearly expressed otherwise. The minutes and the abstract could legally reflect only that which had actually transpired at the sentencing hearing. (See Karaman, supra, 4 Cal.4th at p. 345, fn. 11; Delgado, supra, 43 Cal.4th at p. 1070; Zackery, supra, 147 Cal.App.4th at p. 385.) No final sentence or judgment was pronounced by the court at the October 9, 2015 hearing, as the court set a further hearing date for calculation of presentence custody credits.
We are also not persuaded by defendant's argument that the trial court could only consider the issue of presentence custody credits at the April 29, 2016 sentencing hearing, and that it could not reconsider one or more parts of the sentence announced on October 9, 2015. The record reflects that the court was well aware that presentence custody credits had to be calculated by the sentencing court. For the benefit of defendant to have a surgery, the court deliberately scheduled defendant's sentencing over the course of more than one hearing. Under the circumstances, because the October 9, 2015 sentencing hearing was continued and the court had not completed its oral pronouncement of sentence, the court had jurisdiction on April 29, 2016, to reconsider the length of defendant's prison term.
Lastly, we find unpersuasive defendant's argument that a judgment was rendered in this case on October 9, 2015, even though the trial court had not finished sentencing him. In support of this argument, defendant cites People v. Cheffen (1969) 2 Cal.App.3d 638 (Cheffen) and People v. Mesa (1975) 14 Cal.3d 466 (Mesa). In Cheffen, the defendant was convicted of five counts, but the trial court "pronounced judgment and sentence was imposed on defendant only for . . . two counts." (Cheffen, supra, at p. 641.) In Mesa, the defendant admitted two prior felony convictions but "the trial judge failed to mention the priors in pronouncing judgment." (Mesa, supra, at p. 471.) Neither Cheffen nor Mesa involved a continuance of the sentencing hearing. Rather, in each case the trial court apparently adjourned the sentencing hearing without pronouncing sentence as to all required matters. Cheffen and Mesa are therefore distinguishable from the instant case in which the trial court deliberately set a further hearing date to consider a sentencing matter, that is, the calculation of presentence custody credits.
In sum, we determine that the trial court had jurisdiction on April 29, 2016, to consider not only defendant's presentence custody credits but the entirety of defendant's sentence, and to impose a longer prison term than previously announced on October 9, 2015.
B. Whether the Trial Court Lost Jurisdiction to Increase Defendant's Sentence After Defendant Filed a Notice of Appeal
Defendant contends that the trial court was without jurisdiction on April 29, 2016, to resentence him, because he had previously filed notices of appeal in 2015. Defendant's argument is premised on the notion that a final judgment had been rendered on October 9, 2015. As we have explained, however, the court did not orally pronounce defendant's entire sentence at that time and instead continued sentencing to 2016 for calculation of presentence custody credits. No appealable judgment was rendered until April 29, 2016. (§ 1237, subd. (a) [a defendant may appeal from a "final judgment of conviction," and a "sentence" is "deemed to be a final judgment"].)
The notices of appeal that defendant filed on October 16, 2015 and December 4, 2015 were therefore premature and otherwise ineffective. The trial court accordingly had jurisdiction to reconsider defendant's prison term and pronounce a longer sentence on April 29, 2016. (Phillips v. Phillips (1953) 41 Cal.2d 869, 874 [premature notice of appeal does not divest the trial court of authority to conduct further proceedings]; In re L.J. (2013) 216 Cal.App.4th 1125, 1139, fn. 12 [premature notice of appeal does not divest the trial court of jurisdiction]; Estate of King (1953) 121 Cal.App.2d 765, 773 [same].) We will treat the premature notices of appeal filed on October 16, 2015 and December 4, 2015 as filed immediately after the rendition of judgment on April 29, 2016. (Rule 8.308(c).)
C. Whether the Trial Court Erred in the Calculation of Presentence Custody Credits
Based on his contention that the trial court pronounced his sentence on October 9, 2015, and that the court had no jurisdiction to resentence him on April 29, 2016, defendant contends that the court's calculation of presentence custody credits based on the latter date is incorrect. Defendant acknowledges that "[i]f the resentencing on April 29, 2016, was valid . . . , then as [the Attorney General] argues the calculation of credits on April 29, 2016, was correct."
As we have explained, the October 9, 2015 sentencing hearing was continued, and thus the trial court had jurisdiction to sentence defendant on April 29, 2016. No correction of presentence custody credits is warranted.
IV. DISPOSITION
The April 29, 2016 judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. Mihara, J., Concurring in the Judgment.
Defendant Robert James Markrell contends that the trial court lacked jurisdiction to sentence him in April 2016 because the prison term that the court described at an October 2015 hearing had been "entered in the minutes" by the clerk. While I agree with my colleagues that the trial court did not lose jurisdiction in October 2015 and therefore had jurisdiction in April 2016 to complete defendant's sentence and enter judgment, I write separately to explain my rationale.
I. Background
In February 2010, defendant pleaded guilty to two counts of robbery and two counts of attempted robbery and admitted four strike prior allegations, two serious felony prior allegations, and four prison prior allegations. The plea was "an as-charged, no conditions plea." A long series of continuances followed.
In 2013, defendant asked the court to strike the strike priors under Penal Code section 1385, asserting, among other things, that he "is in extremely poor health, and therefore unable to cope with the vicissitudes of prison life." Defendant, who was 49 years old at the time of his request, asserted that he had undergone "three major surgeries" during his incarceration and faced another "potentially life threatening surgery." He claimed that his "frail" condition "physically precluded" him from "engaging in further criminality or violence." Defendant attached to his request a 2013 letter from a doctor, which stated that defendant "had a serious medical illness in the past requiring multiple abdominal operations." The doctor's letter explained: "He has recovered well and is now ready for a related staged operation. He will be hospitalized for an indeterminate time period after the operation and is also expected to require a 4-6 week outpatient rehabilitation period." In October 2013, the court partially granted defendant's request and struck three of the four strike priors as to all four counts, in part because defendant's "physical health is not good."
Subsequent statutory references are to the Penal Code.
In April 2015, defendant submitted to the court another letter that purported to be from his doctor. This letter stated that defendant needed surgery and would be hospitalized "for an indeterminate time period after the operation," followed by six to eight weeks of rehabilitation.
In October 2015, defendant appeared before the court for sentencing. At the outset of the hearing, the court announced that "I am going to be sentencing today," but "I am going to continue to the first week in January the imposition of credits." The court explained that it was doing this to enable defendant "to have this operation" and "be healed up" before he was transported to prison. Defendant told the court that his surgery was scheduled for December 2015. He asked the court to "put off sentencing to January," but the court declined. However, the court stated: "I am not going to sentence you completely today." "The sentence is not [going to be] completed." The court explained that the sentencing would be "complete" only after the January 2016 hearing. The court noted that it was "very empathetic about Mr. Markrell's medical condition, and in all candor, in large part, that is why the court struck or dismissed the strike priors. [¶] I did not believe that his medical condition warranted such a 140-to-life type of sentence."
Defendant's trial counsel sought the "mandatory minimum" sentence "due to Mr. Markrell's medical condition," and the prosecutor sought the maximum sentence. The court proceeded to describe the sentence it intended to impose: "The defendant is committed to the [CDCR] for a period of 23 years and 8 months." After explaining the particulars of the prison sentence, the court noted that "credits on this matter will be set on January . . . 8th . . . ." "Mr. Markrell is not . . . to be moved from the county jail until the credits are restored [sic]. There is . . . going to be no abstract of judgment prepared until the credits are accorded." "And Mr. Markrell, you have the absolute right to appeal this judgment when it becomes final. And as far as the court is concerned, it will become a judgment on the 8th of January . . . ." (Italics added.)
Even though the trial court had clearly stated that it was not "completing" defendant's sentence, that it was not entering a "final" judgment, and that an abstract of judgment would not be prepared, the clerk's minutes from the October 2015 hearing represented that the court had imposed sentence, and the clerk prepared an abstract of judgment purporting to record that a judgment had been entered. Defendant filed a notice of appeal one week after the October 2015 hearing.
The scheduled January 2016 hearing was continued to March 2016. In March 2016, the prosecution informed the court that it was seeking reconsideration of the court's sentence. In April 2016, the prosecution filed a motion for reconsideration of the court's order striking three of defendant's four strike priors as to all four counts. The prosecution told the court that it had discovered that the letters filed by defendant in 2015 that purported to be from his doctor had been forged; only the 2013 letter was actually a letter from his doctor. In fact, defendant had been refusing to attend his medical appointments and had postponed his surgeries multiple times. Defendant opposed the prosecution's motion and claimed that the court had lost jurisdiction to reconsider his sentence.
At the April 2016 hearing on the prosecution's motion, the prosecution argued that the court retained jurisdiction because the clerk had lacked the power to enter judgment without the court's approval. The court agreed. It noted that defendant "was never committed to the custody of the [CDCR] in a formal legal sense." In the court's view, a sentence "is not complete until the trial court places on the record the custody credits." "[T]here was no final judgment in this case. It was not the intent of the Court to have a final judgment." The court then "set aside this tentative judgment" and granted the prosecution's reconsideration motion.
The court struck all four of the strike priors as to the two attempted robbery counts and one of the two robbery counts, but it declined to strike any of the strike priors as to the remaining robbery count. The court struck the priors as to those three counts in part due to defendant's medical condition. The court imposed an indeterminate term of 25 years to life for the one robbery count with the four strikes and concurrent terms for the remaining counts. The court also imposed a consecutive determinate term of 10 years for the two serious felony priors and one year for one of the section 667.5, subdivision (b) prison priors. It struck the punishment for the section 667.5, subdivision (a) prison prior and struck the remaining prison priors. Defendant timely filed a notice of appeal from the court's April 2016 judgment.
In the interim period between the October 2015 hearing and the April 2016 hearing, the felony convictions underlying some of the prison priors had been reduced to misdemeanors.
II. Analysis
The critical question in this case is whether the trial court's oral pronouncements at the October 2015 hearing constituted a judgment that caused the court to lose jurisdiction.
Defendant claims that his October 2015 notice of appeal deprived the trial court of jurisdiction, but this would be true only if the trial court's actions at the October 2015 hearing amounted to a final judgment that deprived the court of further jurisdiction. A premature notice of appeal prior to a judgment does not deprive a court of jurisdiction to enter judgment. (Maxwell v. Superior Court of San Mateo County (1934) 1 Cal.2d 294, 297.) --------
The trial court's express statements on the record at the October 2015 hearing establish that it did not enter a judgment at that time. The court explicitly stated that it would not be sentencing defendant "completely today," that "the sentence is not completed," that "[t]here is . . . going to be no abstract of judgment prepared," and that the sentence would "become a judgment" only after the subsequent hearing on credits.
Defendant puts misplaced reliance on the clerk's minutes of the October 2015 hearing and the clerk's October 2015 abstract. The trial court, not the clerk, decides when judgment is to be pronounced and makes that pronouncement. (§§ 1191 ["the court shall appoint a time for pronouncing judgment"], 1202.) "Entering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. 'The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms (see Pen. Code, § 1213.5) it cannot add to or modify the judgment which it purports to digest or summarize.' " (People v. Mesa (1975) 14 Cal.3d 466, 471 (Mesa).) "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment . . . ." (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Mesa confirms that defendant's contention lacks merit. In Mesa, the defendant had admitted prior conviction allegations, but the court's pronouncement of judgment did not mention the priors. Nevertheless, the abstract and the clerk's minutes included the priors. The defendant contended that the priors should be stricken from the abstract because they were not part of the judgment. Because the oral pronouncement was the judgment, and the minutes and the abstract were not the judgment, the California Supreme Court agreed with the defendant and struck the priors. (Mesa, supra, 14 Cal.3d at pp. 471-472.)
None of the other cases cited by defendant is to the contrary. In People v. McAllister (1940) 15 Cal.2d 519 (McAllister), the trial court unambiguously imposed sentence, but before the sentence was entered into the minutes the court modified that sentence. (Id. at pp. 520-521, 524.) The California Supreme Court held that the modification was valid because the defendant had "not been placed under any restraint" as a result of the first sentence when the court imposed the modified sentence. (Id. at p. 524.) The McAllister court described the rule as follows: "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." (Id. at pp. 526-527.) Since, unlike here, the trial court in McAllister unambiguously orally pronounced judgment, McAllister did not involve a discrepancy between a trial court's oral pronouncement and a clerk's minutes and abstract.
In People v. Thomas (1959) 52 Cal.2d 521 (Thomas), the California Supreme court noted that the issue in McAllister, as in Thomas, concerned "the trial court's power, after rendition of judgment, to change a valid sentence so as to increase the punishment." (Thomas, at p. 529, italics added.) In Thomas, as in McAllister, the trial court had unambiguously imposed sentence and then imposed a modified sentence (after realizing that it had failed to deal with a prior conviction allegation) before the original sentence could be executed or entered in the clerk's minutes. (Thomas, at pp. 526-527, 531.) Thomas is also inapposite because it, like McAllister, did not involve a discrepancy between an oral pronouncement and a clerk's minutes and abstract.
In People v. Drake (1981) 123 Cal.App.3d 59 (Drake), the trial court unambiguously imposed a "judgment and sentence" on the defendant of six years in prison. Two weeks later, the court resentenced the defendant to 10 years in prison. (Id. at pp. 61-62.) The Court of Appeal, relying on McAllister, concluded that the resentencing was void because judgment had been pronounced at the earlier sentencing. (Drake, at pp. 63-64.) Drake was a straightforward application of the rule set forth in McAllister. Unlike the situation before us, it did not involve a discrepancy between a court's oral pronouncement and a clerk's minutes and abstract.
In People v. Kirkpatrick (1991) 1 Cal.App.4th 538 (Kirkpatrick), the trial court unambiguously pronounced judgment sentencing the defendant to the middle term of three years in prison. The court had chosen the middle term because the defendant had purportedly received a Silver Star for his service in Vietnam. Subsequently, the court learned that the defendant had not received a Silver Star, and it resentenced him to the aggravated term of four years in prison. (Id. at pp. 541-542.) The defendant contended on appeal that the resentencing was invalid because the original judgment had been entered by the clerk in the minutes before the resentencing, and the Court of Appeal concluded that, under McAllister, it was compelled to agree. (Kirkpatrick, at pp. 542-543.) Again, unlike the situation here, Kirkpatrick did not involve a discrepancy between the trial court's oral pronouncement and the clerk's minutes and abstract.
People v. Karaman (1992) 4 Cal.4th 335 (Karaman) is also not on point. In Karaman, the trial court unambiguously pronounced judgment sentencing the defendant to four years in prison but granted the defendant a stay of execution of the sentence for one week. The judgment was entered in the clerk's minutes on the day it was pronounced. Before the sentence was executed, the court resentenced the defendant to two years in prison. The prosecution challenged the validity of the resentencing, and the issue on appeal was whether the clerk's entry of the judgment in the minutes precluded the court from resentencing the defendant to a lesser term. (Id. at pp. 345-346.) The California Supreme Court held that the entry of a sentence in the clerk's minutes did not preclude the trial court from reducing the sentence prior to its execution, particularly since the trial court could have reduced the sentence under section 1170, subdivision (d) after its execution. (Karaman, at pp. 350-352.) Karaman, like the other cases relied upon by defendant, did not involve a discrepancy between the court's oral pronouncement and the clerk's minutes.
Mesa establishes that the discrepancy between the trial court's oral pronouncement, on the one hand, and the clerk's minutes and abstract, on the other hand, must be resolved in favor of the court's oral pronouncement. Here, the trial court's oral pronouncement at the October 2015 hearing unambiguously established that the court was not imposing defendant's "complete" sentence and was not entering "judgment." Instead, the court was very clear that it would be completing the imposition of defendant's sentence and entering judgment at a subsequent hearing. Under these circumstances, the court did not relinquish jurisdiction, and the clerk's entries to the contrary in the minutes and on a purported abstract of judgment must be disregarded. Since the court retained jurisdiction after the October 2015 hearing and did not relinquish it prior to the April 2016 hearing, the court retained jurisdiction to impose sentence and pronounce judgment at the April 2016 hearing.
On this basis, I agree with my colleagues that the judgment should be affirmed.
/s/_________
Mihara, J.