People v. Jason V. (In re Jason V.)

81 Cal.App.5th 810

297 Cal.Rptr.3d 506

IN RE JASON V., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.Jason V., Defendant and Appellant.

A163366

Court of Appeal, First District, Division 2, California.

Filed July 28, 2022

As Modified on Denial of Rehearing August 23, 2022

Amanda K. Roze, By Appointment of the Court of Appeal, First District Appellate Project

Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Viktoriya Chebotarev, Deputy Attorney General, Nanette Winaker, Deputy Attorney General

Mayfield, J.^*

After June 30, 2021, juvenile courts are no longer able to commit juveniles to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). Jason V. was committed to DJJ prior to June 30, 2021, but the trial court erroneously ordered an impermissible maximum term of confinement. In July 2021, the court entered a nunc pro tunc order stating the correct maximum period. Jason contends the commitment order must be vacated because judicial error cannot be corrected by a nunc pro tunc order and, on the date the order was entered, he could not be committed to DJJ. He also contends he is entitled to additional days of credit for time spent in local confinement that the juvenile court failed to award. We will remand the case for recalculation of the credits Jason is entitled to and otherwise affirm the dispositional order.

BACKGROUND

On March 25, 2021, a second amended juvenile wardship petition ( Welf. & Inst. Code,¹ § 602, subd. (a) ) was filed in Santa Clara County alleging that 18-year-old Jason committed eight counts of second degree robbery ( Pen. Code, § 212.5, subd. (c) ), two on November 18, 2020 (counts 1 & 2), three on December 8, 2020 (counts 3–5), three on December 9, 2020 (counts 6–8), and one count of conspiracy to commit second degree robbery ( Pen. Code, § 182, subd. (a)(1), 212.5, subd. (c) ). It was alleged that Jason was armed with a firearm during commission of the robberies in counts 1 through 7 ( Pen. Code, § 12022, subd. (a)(1) ).

The underlying facts are not directly relevant to the issues on appeal and need only be described briefly. As related in probation reports, the robberies were of 7 Eleven stores; during one, on December 9, 2020, one of the three suspects inside the store shot and killed the cashier (count 6). Jason was identified as the driver in that robbery, and as one of the suspects inside the stores in others. A co-responsible reported that Jason planned the robberies and gave the co-responsible his gun, gloves, and a mask.

Jason admitted two counts of robbery (counts 3 & 6), the count of conspiracy (count 9), and eight of the 26 alleged overt acts; the remaining counts and all the enhancement allegations were dismissed; and the case was transferred to Contra Costa County for disposition.

On June 28, 2021, following a contested dispositional hearing, the Contra Costa County Juvenile Court committed Jason to DJJ for a maximum term of confinement of nine years two months for the Santa Clara offenses, as well as offenses Jason had admitted in connection with two previous petitions that had been sustained in Contra Costa County.² This order was consistent with the probation department's recommendation. Jason was to be detained at juvenile hall pending delivery to DJJ.

In its report for a scheduled section 737³ hearing on July 12, 2021, the probation department stated that a "new maximum custodial time pursuant to [Senate Bill No.] 823"⁴ had been calculated and recommended the court order "6 years and 8 months nun[c] pro tunc." After the hearing, the juvenile court filed an amended commitment order stating a maximum period of confinement of six years four months.⁵ The court's minute order for July 12, 2021, stated: "Due to legal error, the minor's maximum commitment term corrected to 6 yrs, 4 mos, nunc pro tunc to 6-28-21."

Jason filed a notice of appeal from the orders of June 28 and July 12, 2021, on July 30, 2021.⁶

DISCUSSION

I.The Trial Court's Correction of the Disposition Order Was Permissible

In section 736.5, which became effective on May 14, 2021, the Legislature stated its intention to close the DJJ and shift responsibility for youths adjudged wards of the court to county governments, with annual funding for county governments to fulfill this responsibility. (§ 736.5, subd. (a).) The final closure date for DJJ is June 30, 2023. (§ 736.5, subd. (e).) Pursuant to subdivision (b) of section 736.5, beginning on July 1, 2021, courts could no longer commit wards to DJJ except in circumstances not relevant here.⁷ Jason was committed to DJJ on June 28, 2021, the third-to-last day such an order could be imposed.

When a ward is committed to DJJ, the juvenile court is required to set a maximum period of confinement. (§ 731, subd. (c).) Since September 30, 2020, the maximum period of confinement has been limited to the middleterm of imprisonment that could be imposed upon an adult convicted of the same offense. (§ 731, subd. (c), as amended by Stats. 2020, ch. 337, § 28 [operative Sept. 30, 2020, to June 30, 2021]; Stats. 2021, ch. 18, § 8 [operative July 1, 2021].)⁸ Previously, the maximum period of confinement was the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense. (Former § 731, subd. (c).)

Accordingly, and as the juvenile court here belatedly recognized, when Jason was committed to DJJ on June 28, 2021, the court erred in setting his maximum term of confinement at the maximum term for an adult convicted of the same offenses rather than the middle term. Hence the court's order correcting the maximum period of confinement nunc pro tunc.

Jason argues the corrected order is invalid because the court could not correct judicial error with a nunc pro tunc order. " ‘ "A nunc pro tunc order or judgment is one entered as of a time prior to the actual entry, so that it is treated as effective at the earlier date." ’ ( In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 851 [91 Cal.Rptr.3d 475].) Trial courts have the authority to enter nunc pro tunc orders to address clerical errors, but not judicial errors. ( People v. Kim (2012) 212 Cal.App.4th 117, 124 [151 Cal.Rptr.3d 154].)" ( Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 683, 260 Cal.Rptr.3d 894 ( Sannmann ).)

"An order made nunc pro tunc should correct clerical error by placing on the record what was actually decided by the court but was incorrectly recorded. It may not be used as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order to enter a new one." ( Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891, 67 Cal.Rptr.2d 407 ( Hamilton ).) " ‘A court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order. [Citations.] It cannot, however, change an order which has become final even though made in error, if in fact the order made was that intended to be made.... "The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made...." ’ " ( Hamilton , at p. 890, 67 Cal.Rptr.2d 407, quoting Estate of Eckstrom (1960) 54 Cal.2d 540, 544–545, 7 Cal.Rptr. 124, 354 P.2d 652.) " ‘[N]unc pro tunc orders may not be made to ‘make the judgment express anything not embraced in the court's decision, even though the proposed amendment contains matters which ought to have been so pronounced. [Citations.]’ " ( Ibid. ) " ‘It is only when the form of the judgment fails to coincide with the substance thereof, as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order.’ " ( Ibid. )

In Jason's view, the June 28 order was void, as it imposed an unauthorized sentence ( People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 ); the juvenile court acknowledged it made a legal error; and the nunc pro tunc order was improperly used to correct that error in violation of the principles above. In the unique circumstances presented here, we do not find the situation so clear.

We agree that the error here cannot be seen as a "recording" error in the sense of a clerk or judge incorrectly writing down something other than what the judge in fact ordered—in essence, a scrivener's error. But the category of error that may be viewed as "clerical" for purposes of determining the validity of a nunc pro tunc order, is not limited to scrivener-type errors. " ‘ "Generally, a clerical error is one inadvertently made, while a judicial error is one made advertently in the exercise of judgment or discretion. [Citations.]" ’ " ( People v. Davidson (2008) 159 Cal.App.4th 205, 210, 70 Cal.Rptr.3d 913, quoting People v. McGee (1991) 232 Cal.App.3d 620, 624, 283 Cal.Rptr. 528.)

As our Supreme Court has explained, "a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." ( In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729 ( Candelario ).) "Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ ( 46 Am.Jur.2d, Judgments, § 202.) Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. ( In re Wimbs (1966) 65 Cal.2d 490, 498 [55 Cal.Rptr. 222, 421 P.2d 70].) [¶] An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the...