Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA033100 Carlos Baker, Judge. Modified and, as modified.
William S. Mount and Alan C. Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Following a jury trial, Michael Watts appeals from a final judgment of conviction of grand theft (Pen. Code, § 487, subd. (a)) and assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) Special allegations of personal infliction of great bodily injury on the victim, a neighbor he brutally assaulted when the neighbor, who had loaned appellant $5, did not return some video games borrowed by the neighbor’s roommate, were found true. (Pen. Code, §§ 1203.075, 12022.7, subd. (a).) The trial court sentenced appellant, who chose to wear a county blue jump suit during trial, to the mid-term of 3 years on each count and 8 months on the enhancements, for a total of 6 years, 8 months in prison.
The jury found appellant not guilty of robbery. The grand theft conviction was as a lesser included offense of second degree robbery, charged as count one. Unless otherwise indicated, all further statutory references are to the Penal Code.
Appellant contends 1) the trial court failed to instruct orally on the element of grand theft that differentiates it from petty theft so the jury’s verdict with respect to grand theft cannot stand, and 2) the trial court’s ex parte post hoc order increasing the restitution fine from $200 to $1,300 offends statutory and constitutional requirements and is void. We shall reverse the increase in the $200 restitution fine and parole restitution fine and shall otherwise affirm the judgment.
STATEMENT OF FACTS
On September 6, 2005, appellant viciously assaulted neighbor Daniel Bates with a wooden stick until the wooden stick broke and then stomped and, wearing steel-toe boots, kicked Bates. Appellant, who was enraged, called Bates names, including homosexual slurs. Bates suffered great bodily injuries as a result of the attack. After the attack, during which appellant demanded Bates’ gold chains, Bates was missing $650 from his pocket and two gold chains, a ring he wore as a medallion, and gold and diamond bracelets. Bates discovered a piece of the bracelet on the front doorway while he was waiting for the ambulance or the next day when he saw a sparkling object. There were cut marks on Bates’ neck where the gold chain had been pulled from him; Bates was bloodied and sustained serious physical and emotional injuries.
Bates was impeached with two felony convictions.
There was a history to this attack. A week before the beating, appellant began banging on Bates’ door and dining room window demanding a video game, which Bates later learned had been loaned by appellant to Bates’ then-roommate, who was appellant’s friend. Bates called 911. About 20 minutes later, appellant came to the door with his young child. Appellant returned later that evening with his fiancé, a child, and building security, again asking for the video game; that “turned into an exchange of words.” Bates told appellant’s fiancé about other women appellant was seeing while his fiancé was at work.
Bates testified he knew nothing about the video game. His ex-roommate, who was present, said nothing.
Appellant told the detective who arrested him on September 7, 2005, that Bates’ roommate had borrowed some video games and, when Bates refused to return them, appellant “lost it,” attacked Bates with the wooden stick he had brought with him; and stomped and kicked Bates with his boots when the stick broke. He also told that deputy he took gold chains from the victim’s neck and wrist and discarded them because they were broken; he had discarded the chains to deprive Bates of their monetary value and Bates would be out the money allegedly owed for the video games. Appellant denied taking any cash from Bates and told the detective he was sorry for what he had done and should not have lost his temper. Appellant mentioned the video games as cause for the assault but did not tell the detective anything about Bates’ peeking through appellant’s windows or anything relating to Bates’ homosexuality.
Appellant also told the detective that Bates’ roommate told appellant he had been kicked out of the apartment by Bates, his lover, but the games remained. Appellant said Bates told him that the roommate had taken the games and they were no longer in the home. Appellant gave the detective no other reason for the incident other than the non-return of the video games.
Bates recovered the wooden stick and pieces of the gold chains and gave them to the detective.
In his own testimony, appellant admitted saying he kicked and hit Bates and that he was sorry but denied most of the other statements.
Appellant also told another deputy he “lost it” after confronting Bates about the video games and attacked Bates with a stick and then stomped him in the head and face with his boots. When speaking to that deputy, appellant denied taking any of the victim’s property but said some of the chains may have broken off during the struggle.
The boots, with spots of blood still on them, were recovered from appellant’s bedroom after his girlfriend gave consent to search her apartment.
The defense to the assault was self-defense. The defense to the robbery was that appellant did not take money or jewelry from Bates; that any intent to take the property was formed after the fight as appellant was leaving; and/or that the crime was only larceny and petty theft at that because appellant did not take any money and there was no proof the value of the jewelry was more than $400. Appellant testified in his own behalf, conceded he had borrowed $5 from the victim, loaned the video games to the victim’s roommate, and confronted Bates armed with a broken wooden stick on September 6; but he denied taking any money or jewelry from Bates. Appellant claimed Bates swung a grocery bag with a wine bottle at him prior to the assault and that he was angry at Bates for a purported unwanted sexual proposition, possibly for not accepting repayment of the $5, and for refusing to return a video game. Appellant testified he hit Bates in the face four or five times and broke the stick. Bates went down and “balled up” at which time appellant hit him two or three more times, at which time the stick broke. Appellant then started kicking Bates, stopping when he saw the blood and realized what he was doing. He denied calling Bates by homosexual slurs or telling him that appellant got his $5 worth after beating him. Appellant returned to his apartment and did not call for help for the bloodied Bates.
Appellant later clarified or changed his testimony to state he was confronting Bates only about peeking through appellant’s window, not about the video games, on that occasion. He conceded never telling the detective and deputy who interviewed him that he saw Bates with something in his hands, which became his rationale for self-defense at trial.
The jury was instructed about appellant’s right to self defense, CALCRIM 3470.
He denied telling the two law enforcement officers that he “lost it.”
Appellant’s girlfriend testified that on August 25, the week before the incident, she was paid and she gave appellant the $5 that Bates had loaned appellant, but Bates would not open the door to accept the $5 from appellant. She returned to Bates’ apartment with appellant, and the occupants said they had called the police. She returned to her apartment to call the police so the matter about the $5 and the video games could be resolved. When the police were delayed, she met the building security officer and returned to Bates’ apartment with him. Asked about the video games, the roommate referred them to Bates and Bates said he knew nothing about them. She conceded signing the consent to search. Appellant called her when he was booked and asked her to look for the jewelry.
According to appellant, Bates admitted having the games but told the security guard he was not going to give them to appellant because appellant was acting “like a little, selfish, petty child.” The roommate, who remained when Bates left, would not tell the security guard anything and did not return the video games.
DISCUSSION
1. The trial court’s failure to instruct orally on the element of grand theft that differentiates it from petty theft is not reversible error.
The jury was instructed on theft by larceny, CALCRIM 1800, as a lesser included offense of second degree robbery. The parties agreed there should also be an instruction on petty theft as a lesser included offense of larceny. The discussion with the court regarding the petty theft instruction followed counsels’ arguments to the jury.
Respondent concedes the trial court did not orally instruct the jury with CALCRIM 1801, which in essence states that if the property taken had a fair market value of $400 or more, the theft amounts to grand theft, but if its value is under $400, the theft is petty theft. Appellant contends the error was prejudicial. Respondent argues that any error was not prejudicial because the correct written instruction was submitted to the jury, which heard counsel for both sides articulate the difference between grand and petty theft.
CALCRIM 1801, as given in the written instructions, stated in part that if the jury found appellant committed a theft, it must decide whether the crime was grand theft or petty theft and the burden was on the People to prove beyond a reasonable doubt that the theft was grand theft rather than a lesser theft. Moreover “The defendant committed grand theft if he stole property worth more than $400. [¶] Theft of property from the person is grand theft, no matter how much the property is worth. Theft is from the person if the property taken was in the clothing of, on the body of . . . held or carried by, that person.”
“[M]isreading instructions is at most harmless error when the written instructions received by the jury are correct. (People v. Osband (1996) 13 Cal.4th 622, 687 . . . .)” (People v. Box (2000) 23 Cal.4th 1153, 1212.) In People v. Crittenden (1994) 9 Cal.4th 83, 138, where “the instructions [were] orally misstated but whose written form defendant does not contend to be erroneous[,] [t]he jurors had before them six copies of the written version when they began to deliberate” and our Supreme Court “presume[d] that they were guided by those copies.” (People v. Osband, supra, 13 Cal.4th at pp. 687 -688; accord People v. Box, supra, 23 Cal.4th at p. 1212 [misreading instructions is at most harmless error when the written instructions received by the jury are correct]; People v. Richardson (2007) 151 Cal.App.4th 790, 802 [same].)
Appellant contends there is no evidence the jury received or read the written instructions in the case at bench. In its preinstructions to the jury at the beginning of the trial, the trial court told the jury “I will be reading the rest of the law at the conclusion of the case and the attorneys may make reference to the laws as you go along, but the instructions that I will give you to take into the jury room must be the ones that you must follow if the attorneys disagree with what we are saying here.” (Italics added.) During the discussion of instructions with counsel, the court alluded to the jurors’ being able to read the instructions. After that discussion, the court orally told the jury “you will have all this stuff in final form in the jury room. . . .” At the end of giving initial oral instructions, the court repeated that after getting the instruction in proper form and edited for the jury’s consideration, they “will be sent into the jury room . . . .” The court also stated that counsel must be satisfied with the verdict forms and “the form of the lesser-included.” Counsel later indicated agreement with the modification to CALCRIM 1800. The court stated it was giving the instructions to the clerk to bind, inferentially for the jury. Without evidence to the contrary, we must assume that was done.
The correct written instructions were given, and defense counsel clearly and without contradiction informed the jury about the difference between grand and petty theft. “In conjunction with the written instructions, these statements of counsel correctly informed the jury of the applicable law.” (People v. Richardson, supra, 151 Cal.App.4th at p. 803.)
Thus, the trial court erred in failing to instruct orally on the $400 mark as the limit between grand and petty theft, but we conclude there was no prejudicial error. (People v. Crittenden, supra, 9 Cal.4th 83, 137-139.)
Appellant’s reliance on People v. Pensinger (1991) 52 Cal.3d 1210, 1254-1255, is misplaced. As the court in Crittenden, supra, 9 Cal.4th at p. 138, noted, in Pensinger, “neither counsel discussed [the] issue that was inadequately addressed in instruction.” We recognize the distinction between misstating and omitting an element of the offense, but when that element is so commonly understood as a specific financial amount, we do not find reversible error where the written instructions corrected the omission.
2. The trial court’s order increasing the restitution fine from $200 to $1,300 did not correct clerical error and is invalid.
The jury returned its verdict on June 12, 2006; the matter was continued several times for sentencing. On June 16, 2006, a minute order reflects that the trial court imposed a restitution fine of $200 at the sentencing proceedings pursuant to section 1202.4, subdivision (b), and a parole restitution fine pursuant to section 1202.45, the latter stayed and to become permanent upon successful completion of parole. Absent extraordinary reasons not present in the case at bench, $200 is the minimum restitution fine permitted pursuant to section 1202.4, subdivision (b)(1), for a felony. Section 1202.4, subdivision (b)(2), suggests $200 multiplied by the number of years of imprisonment, multiplied by the number of felony counts, as an amount the court may order. In the case at bench, that would be $2,400.
A minute order of June 21, 2006, titled “nunc pro tunc/non-appear,” states: “It appearing to the court that through inadvertence the court modifies the minute order dated 6-16-06.” The court deleted the $200 restitution and parole restitution fines and added fines of $1,300. An initial abstract of judgment, filed June 22, 2006, reflects an imposition of the $200 restitution fine. A second abstract of judgment indicates a $1,300 restitution fine. Appellant contends that in the absence of notice and a hearing the imposition of the greater fine does not pass muster under the due process and double jeopardy clauses of the California and federal constitutions.
Conceding that judicial errors cannot be correct by an order nunc pro tunc (In re Candelario (1970) 3 Cal.3d 702, 705), respondent argues this was a clerical error, which the trial court can correct at any time. The entry of a $1,300 restitution fine did not correct a clerical error, but made a new order not imposed on June 16. “‘“[A] nunc pro tunc order cannot declare that something was done which was not done.”’ (Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256 . . . .)” (People v. Borja (2002) 95 Cal.App.4th 481, 485.) We therefore must reverse the judgment insofar as it increased the restitution fine and parole restitution fines from $200 to $1,300.
“‘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. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties.’” (In re Candelario, supra, 3 Cal.3d at p. 705.)
DISPOSITION
The judgment is modified insofar as it imposed a restitution fine and a parole restitution fine of $1,300, and the amount of each fine is amended to the $200 amount originally imposed by the trial court. In all other respects, the judgment is affirmed.
I concur:
RUBIN, J.