PEOPLE v. NESBITT









Filed 12/22/10




CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL PHILLIP NESBITT, Defendant and Appellant.

B218373 (Los Angeles County Super. Ct. No. GA065151)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Steven K. Lubell, Commissioner. Reversed in part and affirmed in part.
Mark D. Lenenberg, under the appointment of 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, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Michael Nesbitt (defendant) was convicted on six felony counts based upon the sexual abuse of three of his children.^[1] On appeal, defendant contends, inter alia, that the trial court lacked jurisdiction to vacate an order entered in the minutes dismissing counts 4 and 5.
We hold that the trial court had the inherent authority to reconsider its order dismissing counts 4 and 5 and therefore affirm the trial court’s order vacating the dismissal of those counts and reinstating them, as well as the judgments of conviction on those counts. In the unpublished portion of this opinion, we otherwise affirm the judgment, except as to matters regarding the sentence and reimbursement of attorney fees.

PROCEDURAL BACKGROUND

In an amended information, the Los Angeles County District Attorney charged defendant in counts 1 and 2 with the commission of a forcible lewd act upon a child, M.S., in violation of Penal Code section 288, subdivision (b)^[2]; in count 3 with continuous sexual abuse of a child, M.S., in violation of section 288.5; subdivision (a) in counts 4 and 5 with the commission of a forcible lewd act upon a child, M.N., in violation of section 288, subdivision (b); and in count 6 with continuous sexual abuse of a child, A.N., in violation of section 288.5, subdivision (a). The District Attorney further alleged as to each count that a special circumstance—multiple victims—applied within the meaning of section 667.61, subdivision (e)(5) and that the statute of limitations had been extended pursuant to section 803.
Defendant pleaded not guilty and denied the special allegations. Following trial, the jury found the defendant guilty on all six counts and found the multiple victim allegation true.
The trial court sentenced defendant to an aggregate determinate sentence of 36 years, plus an indeterminate sentence of 15 years to life comprised of the following: on count 1, a full, separate, and consecutive ^[3]middle term sentence of six years; on count 2, a full, separate, and consecutive middle term sentence of six years; on count 3, a full, separate, and consecutive middle term sentence of 12 years; on count 4 a full, separate, and consecutive middle term sentence of six years; on count 5, a full, separate, and consecutive middle term sentence of six years; and on count 6, a full, separate, and consecutive 15 years to life sentence.

DISCUSSION

A. Jurisdiction to Vacate Dismissal Orders

1. Background
On March 2, 2009, after the jury was impaneled, but before opening statements, defendant filed a motion to dismiss counts 1 through 5. Defendant argued, inter alia, that Penal Code section 800^[4] time-barred the prosecution of those five counts and that the limitations period was not extended under section 803, subdivision (f), which extends the statute of limitations if the offense involves “substantial sexual conduct, . . . excluding masturbation that is not mutual.”^[5] According to defendant, the preliminary hearing testimony was insufficient to establish that the offenses charged in counts 1 through 5 involved substantial sexual conduct, excluding masturbation that was not mutual.
The trial court heard the dismissal motion on March 3, 2009, just before opening statements.^[6] During argument, defendant’s counsel limited the dismissal motion to the counts involving one child—counts 4 and 5―both of which alleged the commission of a forcible lewd act on a child in violation of section 288, subdivision (b). The following exchange then occurred between the trial court and defendant’s trial counsel: “The Court: I have read the Penal Code section 800 and 803(f)(1) motion. Anybody wish to make any further arguments other than what’s listed or set forth in the motion‌ [¶] [Defense Counsel]: Your Honor, real quickly, with respect to the charges, those being [counts 4 and 5] . . . , I submit on it that with respect to [counts 4 and 5] . . . , the issue, besides everything else that I wrote, and I did mention this also, is that [section] 803. It refers you for the definition of substantial sexual conduct. The first issue is to [section] 1203.066. [Sections] 1203.066 and 803(f) exclude[]—it says substantial sexual conduct as defined in [section] 1203.066, excluding nonmutual masturbation. [¶] So the—in the transcript, which I cited in my [section] 803 motion, was he doesn’t describe masturbation, but even if you accept that he does, by saying that, he doesn’t describe mutual masturbation. So [section] 803(f) requires it. That’s one of the elements, which is substantial sexual conduct, so they don’t meet that, so . . . counts [4 and 5] would have to be dismissed as being untimely. [¶] . . . [¶] . . . The Court: Yes. And the crime involved substantial sexual conduct, as described in subdivision b of section 1203.066, excluding masturbation that is not mutual. [¶] [Defense Counsel]: Right. [¶] The Court: This subdivision applies only if all of the following occur as an exclusion to [section] 803. So is there an allegation of substantial sexual conduct, excluding masturbation, that is not mutual as to [defendant] who is charged—or is involved in counts 4 and counts 5‌ Count 4, forcible lewd act on a child, [section] 288(b) and count 5, forcible lewd act on a child, [section] 288(b) so looking at 1203.066. [¶] [Defense Counsel]: The point of my—or my point, your Honor, is that [section] 803(f), specifically f, says that substantial sexual conduct as defined in both [sections] 1203.066, but then they added that excluding masturbation that is not mutual, and they don’t have it in this case. And that’s my point. [¶] The Court: I understand. . . . [¶] Okay, so the way I’m reading this, there has to be some other conduct other than masturbation that is not mutual that’s an exception. [¶] [Defense Counsel]: Again, in here what it is, is if you go by the transcript; right‌ [¶] The Court: I go by the complaint. [¶] [Defense Counsel]: Okay. By the complaint. [¶] The Court: And the complaint doesn’t say. [¶] [Defense Counsel]: Right. Right. Whereas, say for [another child] it does say.”
Following the foregoing exchange, the prosecutor submitted on the motion as to counts 4 and 5. In response, the trial court stated “my indicated [ruling] is to grant the motion and dismiss only as to counts 4 and 5.” Both sides then made opening statements and [one child not named in counts 4 and 5] began her direct testimony, but did not finish by the end of the day. The minute order for March 3, 2009, reflects that counts 4 and 5 were dismissed that day pursuant to section 1385—“in the furtherance of justice.”^[7]
The following day, March 4, 2009, [the child] completed her testimony on both direct and cross-examination. The prosecutor then moved the trial court to vacate its order dismissing counts 4 and 5. The prosecutor provided the trial court with a citation to People v. Lamb (1999) 76 Cal.App.4th 664, which concluded at page 682 that the term “mutual” in a similarly worded prior version of section 803 included masturbation of the minor victim by the perpetrator. Thus, the prosecutor argued that the trial court had misconstrued the term and that the statute of limitations as to counts 4 and 5 was extended under that section. The prosecutor maintained that the trial court had the inherent power to “reverse itself” on the dismissal motion and that defendant had suffered no prejudice because [the child named in counts 4 and 5] had not yet testified. Defendant’s trial counsel opposed the motion, citing People v. Candelario (1970) 3 Cal.3d 702 (Candelario) and Smith v. Superior Court (1981) 115 Cal.App.3d 285 (Smith). After hearing further argument, the trial court continued the matter to allow the prosecution more time to present case law on the issue.
Later that same day, the prosecutor presented the trial court with, inter alia, the decision in In re Anthony H. (1982) 138 Cal.App.3d 159 (Anthony H.) and argued that the orders dismissing counts 4 and 5 were interim orders that could be corrected upon further consideration of the legal issue because jeopardy had not attached and defendant was not otherwise prejudiced. After considering further argument, the trial court ruled that it would “correct” its earlier ruling dismissing counts 4 and 5 and deny defendant’s motion to dismiss those counts. The minutes for March 4 reflect that the prosecution’s motion to reinstate counts 4 and 5 was granted and that those counts were “reinstated forthwith.”

2. Analysis
Defendant contends on appeal that the decisions in Candelario, supra, 3 Cal.3d 702, and Smith, supra, 115 Cal.App.3d 285 control the determination of this issue and require us to conclude that once the dismissal orders were entered in the minutes, the trial court lacked further jurisdiction to vacate those orders. The Attorney General distinguishes Candelario and Smith and asserts that this case is closely analogous to the facts in Anthony H., supra, 138 Cal.App.3d 159.
In Candelario, supra, 3 Cal.3d 702, the defendant was convicted of selling heroin in violation of former Health and Safety Code section 11501 and admitted the allegation that he had suffered a prior felony conviction. (Id. at p. 704.) The sentencing minutes and the abstract of judgment, however, recited only that the defendant was convicted of the heroin offense, without mentioning a true finding on the prior felony conviction. (Ibid.) Over a month after the defendant was remanded to custody for delivery to the Department of Corrections, the trial court amended the abstract of judgment to add the prior conviction. (Ibid.)
In determining whether the trial court had the jurisdiction to amend the abstract of judgment, the Supreme Court in Candelario, supra, 3 Cal.3d 702 observed: “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. (People v. Schultz (1965) 238 Cal.App.2d 804, 807 [48 Cal.Rptr. 328]; People v. Flores (1960) 177 Cal.App.2d 610, 613 [2 Cal.Rptr. 363].) The power exists independently of statute and may be exercised in criminal as well as in civil cases. (People v. Flores, supra, at p. 613.) The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. (In re Roberts (1962) 200 Cal.App.2d 95, 97 [19 Cal.Rptr. 147].) The court may correct such errors on its own motion or upon the application of the parties. (People v. Flores, supra, at p. 613.) [¶] 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 court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. (Morgan v. State Bd. of Equalization (1949) 89 Cal.App.2d 674, 682 [201 P.2d 859]; Waters v. Spratt (1958) 166 Cal.App.2d 80, 86 [332 P.2d 754], disapproved on another ground in Kusior v. Silver (1960) 54 Cal.2d 603, 616 [7 Cal.Rptr. 129, 354 P.2d 657]; see Bastajian v. Brown (1941) 19 Cal.2d 209, 214-215 [120 P.2d 9].)” (Candelario, supra, 3 Cal.3d at p. 705, italics added.)
The court in Candelario, supra, 3 Cal.3d 702 determined that the omission of the true finding on the prior felony was an exercise of judicial discretion.^[8] Accordingly, the court concluded that the amendment to the abstract was in excess of the trial court’s jurisdiction. “[W]e have concluded that the finding of the prior conviction was improperly added by an amendment to the judgment; and cannot, therefore, be used to enhance [the defendant’s] . . . sentence. [¶] . . . [¶] The amendment to the abstract of judgment being in excess of the [trial] court’s jurisdiction is ineffective for any purpose.” (Id. at pp. 705, 708.)
In Smith, supra, 115 Cal.App.3d 285, the defendant was convicted of embezzlement of a rental car, but the Court of Appeal reversed the judgment holding that the rental car had been illegally seized as the result of a warrantless search of a wallet belonging to the defendant’s mother. (Id. at p. 287.) After remittitur, the prosecutor informed the trial court that without the car as evidence, the prosecution would be unable to retry the defendant. (Ibid.) Based on a representation by the defendant’s counsel, both the trial court and the prosecutor believed that there were no appellate proceedings pending with respect to the Court of Appeal’s evidentiary ruling. (Id. at pp. 287-288.) Therefore, the trial court granted the prosecutor’s motion to dismiss. (Id. at p. 288.) Soon thereafter, however, the prosecutor learned that the Attorney General’s office had filed a petition for certiorari in the United States Supreme Court challenging the Court of Appeal’s ruling. (Ibid.) In response, the prosecutor filed a motion to vacate the dismissal order that the trial court granted. (Ibid.)
On appeal, the court in Smith, supra, 115 Cal.App.3d 285, reversed the order vacating the dismissal. The court began its analysis with a discussion of a trial court’s power in a criminal case to reconsider a ruling and vacate a judgment or order. “The limits of a criminal court’s power to reconsider a ruling and vacate an order or judgment, though referred to in passing, have to some extent been left open by the California Supreme Court. In its decision in People v. Krivda (1971) 5 Cal.3d 357 [96 Cal.Rptr. 62, 486 P.2d. 1262], overruled on other grounds in People v. Kaanehe (1977) 19 Cal.3d 1, 10-11, footnote 6 [136 Cal.Rptr. 409, 559 P.2d 1028], the court addressed the question of whether a trial court could reopen its ruling on a suppression motion at the request of the defendant. During the course of its discussion, the Krivda court observed: ‘It is true that there are several cases which hold that a court has the inherent power to reconsider, and thereupon to modify, revoke or set aside, a prior order upon determining that its order was erroneous. (See People v. Eggers [(1947)] 30 Cal.2d 676, 692 . . . ; Imperial Beverage Co. v. Superior Court [(1944)] 24 Cal.2d 627, 634 . . . ; Harth v. Ten Eyck [(1941)] 16 Cal.2d 829, 832-834 . . . ; San Francisco Lathing, Inc. v. Superior Court [(1969)] 271 Cal.App.2d 78, 81 . . . ; Big Bear Mun. Water Dist. v. Superior Court [(1969)] 269 Cal.App.2d 919, 928 . . . ; 2 Witkin, Cal. Procedure (1954), Proceedings Without Trial, § 12, p. 1649.) It has been suggested, however, that the foregoing rule is limited in its application to mere “procedural” rulings which may be modified at any time before final judgment (see Greene v. Superior Court [(1961)] 55 Cal.2d 403, 405 . . . ; City of San Diego v. Superior Court [(1950)] 36 Cal.2d 483, 486 . . .), and is an exception to the general rule that judicial error which occurs in the rendition of orders or judgments which are the fault of judicial discretion, as opposed to clerical error or inadvertence, may not be corrected except by statutory procedure (see In re Candelario, 3 Cal.3d 702,
705 . . . ; Minardi v. Collopy [(1957)] 49 Cal.2d 348, 352-353 . . . ; Key System Transit Lines v. Superior Court [1950)] 36 Cal.2d 184, 191-196 . . . [dissenting opn. of Traynor, J.].).’ (5 Cal.3d at pp. 362-363.)” (Smith, supra, 115 Cal.App.3d at pp. 288-289.)
The court in Smith, supra, 115 Cal.App.3d 285 then noted a distinction between the power to reconsider in a criminal case and in a civil case. “In resolving the question of whether the trial court may reconsider a prior ruling we must at the outset recognize the differences between civil and criminal matters and between orders having effects upon the trial process and judgments (or orders having equivalent effect). In this case, the trial court’s order of dismissal did not merely affect the procedure of a civil trial. It terminated the prosecution against petitioner. If reconsideration was proper, the authority for it should not be lightly drawn from the law of civil procedure.” (Smith, supra, 115 Cal.App.3d at p. 289.)
Relying on Candelario, supra, 3 Cal.3d 702, and noting that decision’s distinction between clerical and judicial error, the court in Smith, supra, 115 Cal.App.3d 285 concluded that the error before it was judicial. (Id. at p. 290.) Accordingly, the court in Smith held that “at least where no actual fraud has been perpetrated upon the [trial] court, a criminal [trial] court has no authority to vacate a dismissal entered deliberately but upon an erroneous factual basis.” ^[9] (Id. at p. 287.)
The Attorney General argues that the instant case can be distinguished from Candelario, supra, 3 Cal.3d 702 and Smith, supra, 115 Cal.App.3d 285 because those cases involved extrinsic factual error by the trial court, whereas this case involved legal error. According to the Attorney General, that distinction brings this case within the holding in Anthony H., supra, 138 Cal.App.3d 159, the case upon which the trial court relied. In that case, on February 22, after the prosecution had presented its case, the defendant moved to dismiss a robbery count based on insufficient evidence. (Id. at p. 161.) The juvenile court orally dismissed the robbery count without hearing argument from the prosecutor. (Ibid.) A few moments later, during a discussion of the evidence in support of the grand theft person count, the juvenile court realized it may have made a mistake in dismissing the robbery count and granted the prosecutor leave to brief the issue. (Id. at pp. 161, 162-163.) In doing so, the juvenile court stated that it was “setting aside” its prior oral pronouncement of dismissal on the robbery count. (Id. at p. 163.)
At the next court session on February 25, the trial court considered the prosecutor’s brief on the robbery count and, after further discussion, found the robbery allegation true. (Anthony H., supra, 138 Cal.App.3d at pp. 163-164.) The minute order for the February 25 hearing provided that the juvenile court had set aside the previous dismissal of the robbery count, reinstated that count, and found the robbery allegation true. (Id. at p. 164.) On March 5, the clerk entered the February 25 minute order simultaneously with the minute order for the February 22 hearing. (Ibid.)
In determining whether the juvenile court had the power to vacate its original order dismissing the robbery count, the court in Anthony H., supra, 138 Cal.App.3d 159, characterized the crucial question as “whether the robbery allegation was dismissed in an effective court order.” (Id. at p. 164, italics added.) According to the court, an order does not become effective until it is entered in the minutes. “A written order of dismissal must ‘be entered in the clerk’s register and is effective for all purposes when so entered’ (Code Civ. Proc., § 581d). As section 664 of the Code of Civil Procedure states: ‘If the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision. In no case is a judgment effectual for any purpose until entered.’ (Italics added.) Witkin states: ‘The purpose of the rule is clear: It would be manifestly undesirable to allow judgments to be used or enforced without any official evidence of their terms. The rule goes further, however; until entry, the judge can vacate or change his previously rendered judgment as he sees fit. [Citations.]’ (4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 50, p. 3215.)” (Anthony H., supra, 138 Cal.App.3d at pp. 164-165.)
The court in Anthony H., supra, 138 Cal.App.3d 159 then explained that “[w]hen a juvenile court renders and enters an effective order granting a motion to dismiss pursuant to Welfare and Institutions Code section 701.1, the prosecution may not institute a later proceeding which charges the same offense. (Cf., §§ 1118 and 1118.2; also see Veitch v. Superior Court (1979) 89 Cal.App.3d 722, 727-728 [152 Cal.Rptr. 822], dealing with dismissal of prosecution under section 1118, a similar proceeding in an adult prosecution.) The grant of a Welfare and Institutions Code section 701.1 motion recognizes the prosecution has failed to make a prima facie case and is equivalent to a finding on the merits that the allegations charged are untrue. A dismissal of an allegation in a juvenile court hearing on the basis of insufficient evidence should have the same effect as an acquittal for the purpose of double jeopardy analysis (see In re James M. (1973) 9 Cal.3d 517, 520 [108 Cal.Rptr. 89, 510 P.2d 33]; Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375-378 [93 Cal.Rptr. 752, 482 P.2d 664]).” (Anthony H., supra, 138 Cal.App.3d at p. 164.)
After reviewing the record of the February 22 hearing, the court in Anthony H., supra, 138 Cal.App.3d 159 concluded that the juvenile court’s February 22 ruling dismissing the robbery count was a tentative and interim ruling because the trial court stated on the record at that hearing that it was setting aside the dismissal. (Id. at p. 165.) Therefore, according to the court in Anthony H., “the February 25 order, which was signed by both the temporary judge and the presiding judge of the juvenile court, [was] the effective order. Thus, there was no effective order dismissing the robbery count . . . .” (Id. at p. 165.) Because the February 22 dismissal order was ineffective, the court in Anthony H. upheld both the juvenile court’s reconsideration of that order and its reinstatement of the robbery count, concluding that the juvenile had been placed in jeopardy only once. (Id. at pp. 165-166.)
We disagree with the Attorney General’s contention that Anthony H., supra, 138 Cal.App.3d 159 is sufficiently analogous to, and therefore dispositive of, the jurisdictional issue in this case. In Anthony H., the juvenile court reconsidered its dismissal order before that order was entered in the court’s minutes. Thus, the court in Anthony H. determined that the juvenile court’s oral pronouncement of dismissal was a tentative ruling—not a valid effective order—that could be vacated or set aside by the trial court. Here, because the clerk entered the dismissal of counts 4 and 5 in the minutes prior to the trial court’s reconsideration of the order, the rationale supporting the reconsideration in Anthony H. does not apply.
We agree with the Attorney General, however, that the decisions in Candelario, supra, 3 Cal.3d 702 and Smith, supra, 115 Cal.App.3d 285 are distinguishable from this case. In Candelario, a final judgment had been entered and the defendant had been sentenced, thereby terminating the entire case in the trial court. And in Smith, the dismissal order had the effect of terminating the entire case against the defendant in the trial court.^[10] Thus, neither the judgment in Candelario nor the dismissal order in Smith could be characterized as interim orders of the trial court. They were final judgments on the merits that effectively terminated the prosecutions against the defendants in those cases.
Here, by contrast, the dismissal of counts 4 and 5 occurred midtrial and did not resolve the entire case against defendant. The dismissals were not based on the insufficiency of the evidence, but rather on a statute of limitations defense. Moreover, no final judgment had been entered from which an appeal could have been taken, and, presumably, the prosecution could have refiled the dismissed counts.^[11]




TO BE CONTINUED AS PART II….

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