Opinion
F040499.
10-27-2003
THE PEOPLE, Plaintiff and Respondent, v. GUADALUPE TOLEDO VEGA, Defendant and Appellant.
Curt R. Zimansky, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Appellant Guadalupe Toledo Vega appeals from a judgment of conviction entered following revocation of probation in which he was sentenced to five years in state prison and ordered to pay victim restitution to Rosemary Ortiz, and from the later modification of that judgment, which vacated the victim restitution award to Rosemary Ortiz and substituted in its place a victim restitution order payable to the victims of an unrelated misdemeanor case. On appeal, appellant challenges the award of victim restitution to the victims of the unrelated misdemeanor case, claiming that the courts order is unclear and the award unauthorized. Appellant also requests this court to correct a clerical error in the clerks minutes relating to a restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b). We agree that the award was unauthorized and the clerks minutes should be corrected. Accordingly, we order the court to vacate its orders and correct the amended abstract of judgment and clerks minutes.
BACKGROUND
A criminal complaint filed December 12, 2000, charged appellant, in case No. BF093697A, with one count of domestic violence upon Rosemary Ortiz (§ 273.5, subd. (a)), and alleged that the offense occurred within seven years of a previous conviction for domestic violence within the meaning of section 273.5, subdivision (e). At the time the complaint was filed, appellant was on probation in four separate misdemeanor cases, which included Kern Municipal Court case No. BM563487A. After appellant entered a not guilty plea at the December 12 felony arraignment, the court ordered the hearing on revocation of probation in the misdemeanor cases to be heard at the pre-preliminary hearing in the felony case.
On December 22, 2000, pursuant to a plea agreement, appellant pled nolo contendere in the felony case to count 1 and admitted the prior conviction allegation. After appellant submitted on the issue of whether he was in violation of his probation in the four misdemeanor cases based on the plea, the court found that appellants probation in the misdemeanor cases should be revoked and set sentencing on the misdemeanors concurrent with sentencing on the felony. Under the plea agreement, appellants sentence on the felony was to be suspended and he was to be placed on five years probation. In addition, his probation on all of the misdemeanors was to be revoked and he would be sentenced to between 12 and 18 months total jail time on those matters.
The sentencing hearing was held on January 24, 2001. Prior to imposing sentence, the probation officer told the court that "restitution in case number BM563487 is still outstanding, $ 605.04." When the court asked defense counsel for a response, he stated "To the extent that it is restitution and not a restitution fine, I will submit. To the extent that its a restitution fine, I would ask that the Court run it concurrent with the sentence." The court suspended imposition of sentence in the felony case and admitted appellant to five years probation. The court imposed a series of probation conditions, including successful completion of an outpatient substance abuse counseling program and a batterers treatment program, payment of a $200 restitution fine pursuant to section 1202.4, subdivision (b), and payment of "restitution in the amount of $605.04 as a result of [appellants] conviction in BM563487."
The court also sentenced appellant on the four misdemeanor cases. In each case, the court revoked probation, sentenced appellant to jail, and ordered that on completion of the commitment ordered, probation in that case would be terminated. Specifically, with respect to case No. BM563487A, the court revoked probation and ordered appellant to serve one year in jail with a total of 126 days custody credits, and ordered probation terminated on completion of that commitment. The court stated that if the sheriffs department released appellant early, probation would also be terminated. At the conclusion of the hearing, appellant was remanded into custody.
On February 21, 2002, the court summarily revoked probation in the felony case, No. BF093697A, and ordered that a bench warrant be issued for appellants arrest. The declaration submitted by the probation officer in support of the courts action stated that appellant was released from custody on the misdemeanor cases on July 3, 2001. The probation officer further stated that appellant had violated the terms of his felony probation because he failed to notify the probation department about his whereabouts, he reported living in a residence he had not lived in for approximately six months, he failed to successfully complete outpatient substance abuse counseling and the batterers treatment program, and he failed to pay restitution and restitution fines or fees. The officer recommended that appellant be sentenced to prison for the upper term of five years and "pay restitution pursuant to Penal Code Section 1202.4(f), in the amount of $605.04, to Rosemary Ortiz, for monetary loss."
A contested probation violation hearing was held on April 12, 2002. At the conclusion of the hearing, the court found that appellant had violated his probation. On April 26, 2002, the court sentenced appellant to prison for the upper term of five years. The court ordered appellant to pay a $200 restitution fine pursuant to section 1202.45, payment of which was suspended pending successful completion of parole, and stated that, pursuant to the courts "order of January 16, [sic] 2001," appellant was required to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b), which was unpaid. The court also stated, "pursuant to 1202.4(f), [appellant] is ... ordered to pay restitution to Rosemary Ortiz in the amount of $605.04 for monetary loss." Appellant received a total of 117 days custody and conduct credits. That same day, appellant filed a timely notice of appeal from the April 26 judgment.
On August 22, 2002, a hearing was held at which the prosecutor and public defender appeared. Appellant was not present at the hearing. The attorneys submitted a written stipulation and order for the courts approval, which identified the case under the felony case number, BF093697A. The parties stipulated that the previous restitution order payable to victim Rosemary Ortiz, in the sum of $605.04, entered April 26, 2002, "is incorrect and is not supported by any evidence in Bakersfield misdemeanor case BM563487A, nor in the above-entitled case," that the court could vacate and set aside the restitution order to Rosemary Ortiz and "substitute in lieu thereof the foregoing restitution order payable pursuant to EXHIBIT A, based upon Bakersfield misdemeanor case BM563487A[,]" that the restitution order was based upon stipulation, and that the restitution order could be entered nunc pro tunc, "retroactive to the day of [appellant] being sentenced to state prison on April 26, 2001 [sic]." The court signed the accompanying order, which states:
"The foregoing stipulation is hereby approved, the previous restitution order of April 26, 2002, payable to Rosemary Ortiz in the sum of $605.04 pursuant to Penal Code section 1202.4(f) is HEREBY ORDERED vacated and set aside,
"IT IS FURTHER ORDERED that the restitution order incorporating EXHIBIT A based upon the victims in Bakersfield misdemeanor case BM563487 shall take the place of the set aside and vacated restitution order."
The court also signed a restitution order, which identified the case number as the felony case, BF093697A. The order stated that a hearing was held on August 22, 2002, "for the correction of the previous restitution order, the [appellant] having been convicted of a violation of Penal Code section 273.5(a) enhanced by Penal Code section 273.5(e), committed December 8, 2000, the [appellant]s probation having been revoked, and [appellant] having been sentenced to the California Department of Corrections on April 26, 2002," and ordered appellant to pay each victim in exhibit A for economic loss to each victim listed in exhibit A in the total principal restitution sum of $550.40, due and payable on April 26, 2002, with 10 percent per annum interest on any unpaid balance, pursuant to section 1202.4, subdivisions (f) and (m). The order was signed and entered nunc pro tunc, retroactive to April 26, 2002. Exhibit A lists the victim beneficiaries of the order as three companies, Foodsco, Food Maxx, and Wal-Mart, lists the amount owed each entity, states the total restitution owed is $550.40, and states this sum is for "Restitution in the Superior Court misd revo case BM563487A in which [appellant] pleaded guilty to Penal Code section 476a(a)/17(b)4 and was ordered to pay restitution ordered transferred into Superior Court case BF093697A and made payable herein upon sentence to prison in Superior Court BF093697A."
On August 27, 2002, an amended abstract of judgment was filed in case No. BF093697A, which lists appellants five-year sentence on the felony conviction, a $200 restitution fine pursuant to section 1202.4, subdivision (b), a $200 restitution fine pursuant to section 1202.45, suspended unless parole is revoked, and restitution of $550.40 pursuant to section 1202.4, subdivision (f), "payable as follows: $34.15 to Foodsco #384, $283.12 to Food Max #402, $163.16 to Wal-Mart #1624, $69.97 to Foodsco #384."
On September 24, 2002, appellant moved this court for an order construing the appeal in this case to include appeal of the trial courts determination of his probation violation on April 12, 2002, as well as the trial courts order of August 22, 2002, modifying appellants sentence. By an order filed on October 18, 2002, we deemed the notice of appeal filed on April 26, 2002, to be amended as requested.
DISCUSSION
A. The Restitution Order
Appellant challenges the August 22, 2002, restitution order and amended abstract of judgment issued after this order, arguing that the courts order is subject to "two possible interpretations." Those interpretations are: (1) the order was unclear, but the court obviously did not mean to impose victim restitution from a previously adjudicated unrelated misdemeanor as restitution for the injuries suffered by Ortiz in the domestic violence case, No. BF093697A, and therefore we should remand the case so the order can be clarified and the abstract of judgment corrected; or (2) the order made a "transfer" of restitution from the prior misdemeanor case to case No. BF093697A and, as such, is unauthorized and must be stricken, and the abstract of judgment corrected.
Respondent contends that the first interpretation is the correct one—that the trial court was imposing restitution which had gone unpaid in the misdemeanor case and did not mean to impose unrelated restitution for corporate entities in a spousal abuse case. Respondent argues that appellant was "merely ordered ... to pay past due restitution in his previous misdemeanors in which he violated his probation." (Italics in original.) Respondent contends that at most the abstract of judgment need only be clarified by listing that restitution payable to Foodsco, Food Maxx and Wal-Mart is for misdemeanor case No. BM563487A.
We need not decide whether the trial court intended to order victim restitution as part of the felony case, or merely as a separate order in the misdemeanor case, because under either interpretation, the award of victim restitution was unauthorized. It is clear from the parties stipulation and the courts order that the victim restitution ordered stems from the misdemeanor convictions, specifically appellants conviction in No. BM563487A. It is also clear from the record that probation in No. BM563487A terminated pursuant to the courts January 24, 2001, order following completion of the jail sentence in July 2001. Once probation terminated, the court was without power to modify any award of victim restitution in the misdemeanor case. (§ 1203.3, subd. (b)(5) ["Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation" (italics added)]; see also In re Daoud (1976) 16 Cal.3d 879, 882 ["A probation order may be revoked or modified only during the term of probation"]; People v. White (1982) 133 Cal.App.3d 677, 682-683.)
Since the court was without power to modify restitution in the misdemeanor case, the court erred in ordering that the restitution order "based upon the victims in Bakersfield misdemeanor case BM563487 shall take the place of the set aside and vacated restitution order" to Rosemary Ortiz, and in entering the restitution order requiring appellant to pay a total of $550.40 in restitution to Foodsco, Food Maxx and Wal-Mart pursuant to section 1202.4, subdivisions (f) and (m). Although sentencing errors are generally waived by a failure to timely object before a trial court, a "narrow exception" exists for errors that produce an unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence is unauthorized if "it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) A claim that a sentence is unauthorized may be raised for the first time on appeal and is subject to judicial correction whenever the error comes to the attention of the reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Accordingly, we will direct the trial court to enter an order vacating its August 22, 2002, restitution orders to the extent they award victim restitution based on misdemeanor case No. BM563487A, and to amend the amended abstract of judgment to eliminate any reference to victim restitution.
B. Clerks Minutes
Appellant requests that we correct what he claims is a clerical error in the clerks minutes. Appellant points out that when the court sentenced appellant to felony probation in case No. BF093697A on January 24, 2001, the court ordered appellant to pay a $200 restitution fine pursuant to section 1202.4, subdivision (b) as a condition of probation. When the court sentenced appellant to prison on April 26, 2002, the court stated at the sentencing hearing that appellant was "required, pursuant to the Courts order of January 16, [sic] 2001, to pay a restitution fine in the amount of $200 pursuant to Penal Code Section 1202.4(b). The unpaid balance of that fine is $200." The clerks minutes for the April 26 hearing, however, state only that appellant is "to pay restitution fine of $200.00 pursuant to Penal Code Section 1202.4(B)." Appellant contends that because the clerks minutes do not state that the restitution fine was imposed pursuant to the courts previous order of January 24, 2001, it is possible that "someone relying on the clerks minutes rather than the sentencing transcript would conclude that the court imposed a restitution fine of $ 200 on April 26, 2002, in addition to the one it imposed when probation was granted on January 24, 2001." Respondent contends that no correction is needed because this claim is too speculative and remote to consider, and the reporters transcript in this case clearly prevails over the clerks minutes, which shows that the restitution fine was imposed only once.
Although the danger that "someone" might interpret the clerks minutes as imposing two restitution fines may be remote, we agree with appellant that the clerks minutes should be corrected to reflect the trial courts order as orally pronounced at sentencing, since the error is purely clerical. (In re Candelario (1970) 3 Cal.3d 702, 705; People v. Hartsell (1973) 34 Cal.App.3d 8, 13.)
DISPOSITION
The matter is remanded and the trial court directed to enter an order vacating its August 22, 2002, orders with the exception of the order setting aside the April 26, 2002, restitution order payable to Rosemary Ortiz in the sum of $605.04. The superior court clerk is directed to issue an amended abstract of judgment which strikes any reference to victim restitution, and to forward a copy of the amended abstract of judgment to the appropriate authorities. The clerk is further directed to correct the courts April 26, 2002, minutes to reflect that appellant is required to pay a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), as ordered on January 24, 2001. In all other respects, the judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., and LEVY, J. --------------- Notes: Further statutory references are to the Penal Code unless otherwise indicated.