Opinion
H046814
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. ESTEBAN NERI, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CC588241)
I. INTRODUCTION
Defendant Esteban Neri was convicted in 2007 of murder and multiple counts of attempted murder. The court affirmed the judgment on appeal in People v. Neri (March 9, 2009, H032072) [nonpub. opn.]. In 2018, the Department of Corrections and Rehabilitation (Department) wrote to the trial court identifying a purported error in the abstract of judgment, and the trial court amended the abstract accordingly. Defendant appealed the amendment of the abstract. On appeal, defendant's appointed counsel filed a brief that raised no issues pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), and defendant filed a supplemental brief on his own behalf. Nothing in defendant's supplemental brief raises an arguable issue on appeal from the amendment of the abstract of judgment. However, having reviewed this court's prior opinion affirming the judgment, we conclude that the abstract of judgment was not correctly amended. Therefore, we will dismiss the appeal and direct the trial court to conform the abstract of judgment to the judgment imposed.
On June 4, 2019, the court granted defendant's request to take judicial notice of People v. Neri, supra, H032072. Some portions of the factual and procedural background have been taken from the prior opinion.
II. BACKGROUND
Defendant was convicted of first degree murder (Pen. Code, § 187, subd. (a); count 1), and two counts of attempted murder (§ 664, subd. (a); counts 2 & 3). Each count included enhancements for personal use of a firearm causing great bodily injury (§ 12022.53, subd. (d)), and for the commission of the crime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). There was an additional enhancement for personally inflicting great bodily injury during the commission of the attempted murder (§ 12022.7, subd. (a)) in count 2. Defendant was acquitted of count 3. On July 17, 2007, after the parties rested, the court granted the prosecutor's request to dismiss count 3, and agreed to call count 4, for purposes of the remaining trial, count 3. On July 18, 2007, the jury found defendant guilty of counts 1 through 3, and found all enhancement allegations to be true. Defendant was sentenced to serve 100 years to life consecutive to 24 years 8 months. In 2009, the court affirmed the judgment on appeal.
All further statutory references are to the Penal Code.
The first amended abstract of judgment dated June 19, 2009, consisted of Judicial Council forms CR-290 and CR-292, each two pages. Form CR-290 listed a determinate sentence for counts 2 and 4 (attempted murder), an enhancement under section 186.22, subdivision (b)(1)(C) for both counts 2 and 4, and an enhancement under section 12022.53, subdivision (a) for count 2. This part of the abstract of judgment listed count 4 instead of count 3 and omitted the section 12022.7, subdivision (a) enhancement for count 2. The first amended abstract also included form CR-292, listing the indeterminate sentence for count 1 (first degree murder) and an enhancement under section 12022.53, subdivision (d) for counts 1, 2 and 3.
In October of 2018, the Department, apparently unaware that the trial court had decided to refer to count 4 as count 3, notified the trial court of an error in the abstract of judgment and requested an amendment. The request stated, "The Amended Indeterminate Abstract of Judgment reflects 3 enhancements pursuant to PC 12022.53(d) that are attached to Counts 1, 2, and 3. However, there is no conviction for Count 3 in this case. The Minute Order reflects Counts 1, 2, and 4 with an enhancement pursuant to PC 12022.53(d) attached to each count." The Department believed that the abstract listed a firearms enhancement as to count 3, the count of which defendant had been acquitted. On October 26, 2018, the trial court prepared a second amended abstract of judgment. The trial court only amended form CR-292, listing the indeterminate sentence for the first degree murder. Form CR-290, listing the determinate terms for the attempted murder counts was not amended. In amending form CR-292, the trial court deleted the last count number for the enhancement under section 12022.53, subdivision (d) that was previously listed as count 3, and handwrote the number "4" for the count number listed for the enhancement. On October 29, 2018, the trial court sent a copy of the second amended abstract to the Department.
On March 4, 2019, defendant filed a request for relief from default for failure to file a timely notice of appeal in propria persona. This court appointed counsel to represent defendant on appeal and directed counsel to file an amended request. On June 14, 2019, this court granted defendant's request for permission to file a late notice of appeal. Defendant filed an amended notice of appeal on June 21, 2019, stating that he was appealing from the "[m]odification of sentence on October 26, 2018."
Appointed counsel filed an opening brief pursuant to Serrano, supra, 211 Cal.App.4th 496, which states the case and the facts but raises no specific issues. Pursuant to Serrano, on September 4, 2019, we notified defendant of his right to submit written argument on his own behalf within 30 days. On October 11, 2019, we received a request from defendant to submit additional evidence. We ordered the request considered with the appeal. On October 15, 2019, we received a supplemental brief from defendant.
III. DISCUSSION
In his supplemental brief defendant contends that he was entitled to get notice of the trial court's intention to amend the abstract, and to be present with appointed counsel when the trial court amended the abstract. Defendant argues that the trial court erred in amending the abstract because the original abstract was correct. He also contends that appellate counsel's failure to identify and raise these issues demonstrate ineffective representation on appeal.
Defendant requests that we take additional evidence on appeal. The evidence he submits consists of a letter dated September 24, 2019, from appellate counsel to defendant. The letter from counsel discusses defendant's petition for resentencing pursuant to section 1170.95. Defendant contends that this evidence is necessary to demonstrate that counsel did not sufficiently investigate the instant appeal. Because this letter is not related to the current appellate proceedings, and because defendant has not shown any " ' "exceptional circumstances," ' " we decline to take additional evidence in this appeal. (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 770, citing In re Zeth S. (2003) 31 Cal.4th 396, 405.) The motion to take additional evidence is denied.
A. Error in Amending the Abstract
Defendant's first contention, that he was entitled to receive notice, have counsel appointed and to be present when the trial court amended the abstract is not an arguable issue in this appeal. Generally, a criminal defendant is constitutionally entitled to be present at any stage of the proceedings deemed critical or where the defendant's presence is necessary to defend against a charge. (Kentucky v. Stincer (1987) 482 U.S. 730, 745; United States v. Gagnon (1985) 470 U.S. 522, 526; see also People v. Waidla (2000) 22 Cal.4th 690, 742.) Conversely, a defendant need not be present " 'when [his or her] presence would be useless, or the benefit but a shadow.' " (People v. Santos (2007) 147 Cal.App.4th 965, 972.) While sentencing and modification of the sentence are considered critical stages of the proceeding, the trial court neither resentenced defendant nor modified the pronounced judgment. (People v. Rodriguez (1998) 17 Cal.4th 253, 257.) The trial court amended the abstract of judgment.
It is well settled that an abstract of judgment is not a judgment of conviction or even an order of the court. An abstract is a form prepared and signed by the clerk of the court that cannot add to or modify the judgment which it purports to digest or summarize. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Its purpose is to inform the sheriff and the warden of the state prison of the sentence. (§ 1213.) As such, entering the oral judgment into the abstract of judgment is a clerical function and does not control, add, or modify, but rather summarizes the court's judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).)
"The distinction between clerical error and judicial error is 'whether the error was made in rendering the judgment, or in recording the judgment rendered.' " (In re Candelario (1970) 3 Cal.3d 702, 705.) Mistakes in the abstract of judgment are considered clerical errors. (Mitchell, supra, 26 Cal.4th at p. 186.) " '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.' " (Id. at p. 185.) If an abstract of judgment fails to reflect the judgment pronounced by the trial court, the record can be corrected at any time to reflect the true facts. (Ibid.) In response to the request from the Department, the trial court amended the abstract to reflect what it thought was the correct enumeration of the counts in the 2007 judgment. It had the inherent authority and duty to correct that clerical error, but the changes made did not amend the judgment imposed. As the only changes made by the trial court were clerical and presented no issue of fact, defendant was not entitled to be present at the proceedings. (People v. Cutting (2019) 42 Cal.App.5th 344, 347.)
While the court had the authority and duty to correct what it saw as a clerical error in the abstract, the second amended abstract does not correctly reflect the judgment imposed. On July 17, 2007, after the parties rested, the court granted the prosecutor's request to dismiss count 3, and agreed to refer to count 4 as count 3 for remainder of the trial. On July 18, 2007, the jury found defendant guilty of counts 1 through 3, and found all enhancement allegations to be true. Therefore, all references to a count 4 in the abstract of judgment are incorrect. They must be changed to reflect a conviction on count 3 in both the CR-290 determinate sentence form and the CR-292 indeterminate sentence form. The abstract must also be amended to include the enhancement under section 12022.7, subdivision (a) for count 2.
B. Ineffective Assistance of Counsel
Defendant next contends that counsel did no investigation and did not augment the record with necessary documents from his original conviction, including the sentencing transcripts necessary to show error. In essence, defendant is making a claim of ineffective assistance of appellate counsel. Ineffective assistance of appellate counsel is not a cognizable argument on appeal. An appellant must raise this claim either in a motion to relieve counsel or in a separate petition for writ of habeas corpus. (See In re Reno (2012) 55 Cal.4th 428, 487-488.)
Even if defendant could raise the issue in this appeal, such a claim has no arguable merit. To show ineffective assistance of counsel, defendant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that defendant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Here, defendant contends that counsel's failure to investigate, failure to request necessary records on appeal and decision to file a Serrano brief demonstrate counsel's inadequate performance.
Defendant's claim that counsel failed to adequately investigate this appeal lacks arguable merit. As discussed above, the trial court did nothing more than correct the abstract of judgment. Both the first amended and second amended abstracts were in the record on appeal. As this court can refer to the prior opinion to evaluate the abstract of judgment, the reporter's transcript from the sentencing hearing is neither necessary nor relevant to this appeal. Therefore, counsel's failure to request that transcript is of no consequence.
Defendant's claim that counsel was ineffective for filing a Serrano brief is also without arguable merit. Counsel does not provide ineffective assistance merely by filing a brief pursuant to Serrano. In Serrano, we recognized that the procedures for filing a brief stating the facts and case, but raising no arguable issue on appeal, set forth by the California Supreme Court in People v. Wende (1979) 5 Cal.3d 436, and approved by the United States Supreme Court in Smith v. Robbins (2000) 528 U.S. 259, 276, satisfy a counsel's ethical duties to his client and to the court. (Serrano, supra, 211 Cal.App.4th at p. 500.) Counsel also has an ethical duty to raise only arguable issues. Counsel correctly determined that there were none here. Under these circumstances, counsel satisfied his ethical duty by filing the Serrano brief.
Nor can defendant show any prejudice from any purported deficient performance. This appeal follows the amendment of the abstract of judgment, not the amendment of the judgment, as defendant's notice of appeal and supplemental brief contend. We have reviewed the abstracts and the prior opinion in People v. Neri, supra, H032072, and will direct the trial court to correct the abstract to reflect the judgment as imposed in 2007. Therefore, there is no prejudice to defendant from counsel's failure to raise the errors in the abstract of judgment.
As nothing in defendant's supplemental brief raises an arguable issue on appeal, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
IV. DISPOSITION
The clerk of the superior court is directed to amend the second amended abstract of judgment, dated October 26, 2018, to conform to the judgment imposed in 2007. The clerk of the superior court shall delete all references to the numeral "4" as a count for the enumerated crimes and enhancements and shall replace them with the numeral "3." This amendment shall be made in both the CR-290 determinate sentence form and the CR-292 indeterminate sentence form. The clerk of the superior court shall correctly list the enhancement pursuant to section 12022.53, subdivision (d) for counts 1, 2, and 3 on both the CR-290 and CR-292 forms. The clerk of the superior court shall also add the enhancement imposed under section 12022.7, subdivision (a) for count 2. The clerk of the superior court is directed to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.