Opinion
H049050
12-20-2022
THE PEOPLE, Plaintiff and Respondent, v. JOHN LAWRENCE WARDZALA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1104912)
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant John Lawrence Wardzala, Jr. appeals after the trial court resentenced him pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.), which amended Penal Code sections 667, subdivision (a) and 1385, subdivision (b), to give courts discretion to dismiss or strike a prior serious felony for sentencing purposes. On appeal, defendant contends that we should direct the trial court to correct clerical errors in abstract of judgment. For the reasons set forth below, we affirm the judgment and instruct the trial court to prepare an amended abstract of judgment.
All further statutory references are to the Penal Code unless stated otherwise.
We have omitted the facts of the offense because they are not relevant to the analysis and disposition of this appeal.
Following a court trial in August 2012, defendant was convicted of first degree burglary (§§ 459, 460, subd. (a); count 1) and receiving stolen property (§ 496, subd. (a); count 2). The trial court also found true the allegations that defendant had three prior strike convictions (§§ 667, subd. (b), 1170.12, subd. (c)(1)), and two prior serious felony convictions (§ 667, subd. (a)). On January 18, 2013, the trial court sentenced defendant to a term of 25 years to life for count 1 and a concurrent term of 25 years to life for count 2. The sentence for count 2 was stayed pursuant to section 654. The court also imposed two consecutive five-year terms for the prior serious felony convictions. This court affirmed the judgment. (People v. Wardzala (Dec. 15, 2014, H039227) [nonpub. opn.].)
On July 20, 2018, the trial court granted defendant's resentencing petition pursuant to section 1170.18, subdivision (a), and reduced his conviction under count 2 to a misdemeanor. The trial court resentenced defendant to a total term of 35 years to life and it stayed the six-month county jail term that it imposed on count 2 pursuant to section 654.
After defendant appealed the July 2018 resentencing, this court issued an opinion remanding the matter to the trial court to consider whether to exercise its discretion under Senate Bill No. 1393 to strike the prior serious felony convictions and to correct the custody credits in the abstract of judgment. (People v. Wardzala (Jan. 8, 2020, H046149) [nonpub. opn.].)
At a hearing on March 29, 2021, the trial court considered defendant's request for relief under Senate Bill No. 1393 and his motion to dismiss his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court exercised its discretion and struck defendant's two prior serious felony convictions, but it declined to strike the three prior strike convictions. The court resentenced defendant to 25 years to life, and stayed the county jail term on count 2 pursuant to section 654. The trial court stated that as of his original sentencing date defendant had 652 actual days and 97 days of local conduct credits pursuant to section 2933.1, and that between January 18, 2013, and the date of resentencing on March 29, 2021, defendant had accrued an additional 2,993 actual days. The court directed the Department of Corrections and Rehabilitation to calculate any conduct credits to which defendant was entitled for the period between January 18, 2013, and March 29, 2021.
Defendant timely appealed.
II. Discussion
Defendant argues that we should remand this matter to the trial court to correct several clerical errors in the abstract of judgment. The Attorney General concedes this argument.
Appellate courts have inherent power to correct clerical errors in the abstract of judgment. (People v. Jones (2012) 54 Cal.4th 1, 89.) When there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
We agree with the parties that the abstract of judgment contains several errors that require correction.
First, the abstract of judgment incorrectly lists the resentencing hearing date as July 20, 2018, when the record establishes that the rehearing took place on March 29, 2021. The abstract should be amended to reflect the correct date of March 29, 2021 on both page 1 of the abstract in the caption regarding "Date of Hearing" and on page 2 in box number 15 regarding "Date Sentence Pronounced."
Second, the abstract of judgment incorrectly reflects defendant's total credits as 652 actual days and 749 total credits on page 2 in box number 15. The trial court at resentencing stated that defendant had accrued 2,993 days of actual custody credits since his initial sentencing, to be added to the number of actual custody credits earned at the time of his original sentencing (652 days). Thus the abstract of judgment should be amended on page 2 in box number 15 to reflect that defendant had accrued 3,645 actual custody credits at the time of his March 29, 2021 resentencing. The total credits in the abstract of judgment on page 2 in box number 15 should be revised to 3,742 days. (See People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court modifies a defendant's sentence on remand, it is required to recalculate custody credits and to credit the defendant with all actual dates spent in custody up to that time in the new abstract of judgment].)
Third, the abstract of judgment includes a court operations assessment of $40 pursuant to Penal Code section 1465.8 and a court facilities assessment of $30 pursuant to Government Code section 70373. At the March 29, 2021 resentencing hearing the court did not impose a court operations assessment, nor did it impose a court facilities assessment. If the clerk includes fines, fees, or assessments in the abstract of judgment that were not part of the oral pronouncement of sentence, they must be stricken from the abstract of judgment. (People v. El (2021) 65 Cal.App.5th 963, 967.) Because the trial court never imposed the $40 court operations assessment or the $30 court facilities assessment on resentencing, those items must be deleted from the abstract of judgment.
III. Disposition
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment as follows: (1) correcting the date of the hearing to March 29, 2021 in the caption regarding "Date of Hearing" on page 1, and on page 2 in box number 15 regarding "Date Sentence Pronounced"; (2) reflecting on page 2, box number 15 actual credits of 3,645 days and total credits of 3,742 days; and (3) deleting the $40 court operations assessment (Pen. Code, § 1465.8) and the $30 court facilities assessment (Gov. Code, § 70373). The trial court shall send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: DANNER, J. WILSON, J.