Opinion
H047269
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE BALTAZAR ORTIZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Benito County Super. Ct. No. CR0038340)
I. PROCEDURAL BACKGROUND
In 2002 defendant Jose Baltazar Ortiz was convicted of first degree murder with the personal use of a firearm and sentenced to 50 years to life in prison. (Pen. Code, §§ 187, subd. (a); 1192.7, subd. (c)(8); 12022.5, subds. (a), (d); 12022.53, subds. (b) - (d).) The court affirmed the judgment on appeal. (People v. Ortiz, (Jan. 30, 2004, H024675) [nonpub. opn.].) 16 years later, the Department of Corrections and Rehabilitation (Department) wrote to the trial court stating that the abstract of judgement was incorrect because it listed a conviction for second degree murder with a sentence of 25 years to life, when the sentence for second degree murder is 15 years to life. The trial court directed the clerk to correct the clerical error on the abstract to list the charge as first degree murder. Thereafter, Ortiz petitioned for a recall of the sentence. The petition alleged that recent amendments to section 12022.53, subdivision (h) allowed the trial court to exercise its discretion and strike the firearm enhancement under section 1385. The trial court denied the petition, stating that Ortiz lacked standing and had failed to show good cause. This timely appeal ensued.
All further statutory references are to the Penal Code.
We appointed counsel to represent Ortiz on appeal. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues. Pursuant to Serrano, on November 22, 2019, we notified Ortiz of his right to submit written argument on his own behalf within 30 days. On December 17, 2019, we received a supplemental brief from Ortiz.
II. DISCUSSION
In his supplemental brief Ortiz contends that the trial court assumed jurisdiction of his sentence when it amended the abstract and should have initiated proceedings to exercise its discretion to strike the firearm enhancement. He also raises a myriad of issues related to his trial, including ineffective assistance of trial counsel, prosecutorial misconduct, and Brady violations. As the judgment is long final, none of the issues related to the trial and judgment of conviction are arguable in this appeal from a post-judgment order.
Brady v. Maryland (1963) 373 U.S. 83. --------
Ortiz also fails to raise arguable issues related to the petition for resentencing. The trial court did not "assume jurisdiction" over his sentence by correcting 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 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 the correct judgment imposed in 2002. It had the inherent authority and duty to correct that clerical error, but by doing so the court neither assumed jurisdiction over the sentence, nor amended the judgment imposed.
Ortiz is correct that section 12022.53, subdivision (h) grants a resentencing court the authority to strike or dismiss, in the interest of justice pursuant to section 1385, an enhancement otherwise required to be imposed. Since the trial court did not resentence Ortiz, but only amended the abstract, it lacked the authority to strike or dismiss the firearm enhancement.
As nothing in Ortiz's supplemental brief raises an arguable issue on appeal, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
III. DISPOSITION
The appeal is dismissed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.