Filed 5/17/17 P. v. Nicholson CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRADLEY ELMER NICHOLSON,

Defendant and Appellant.

F070638

(Super. Ct. No. F13908779)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 
Bradley Elmer Nicholson was convicted of first degree residential burglary, second degree burglary of a detached barn used for storage, and attempted taking of a vehicle. He appeals only his conviction for second degree burglary, for which he received a concurrent sentence of three years in prison. As to this conviction, the certified reporter’s transcript reflects a verdict of “not guilty,” while the written verdict form and remainder of the record reflects a verdict of “guilty.” Nicholson argues the verdict reflected in the reporter’s transcript is the jury’s true verdict, and therefore his conviction for second degree burglary must be reversed. The People argue that the reporter’s transcription is in error, and request that we remand the matter to the trial court for a hearing to determine whether the reporter’s transcript is erroneous. We find the reporter’s transcript contains an obvious error and order the trial court to order the court reporter to correct the error in question. In all other respects, we affirm.
FACTS AND PROCEDURAL HISTORY
In September 2013, James Carlock lived in a rural area of Selma. His property housed a single-family residence and a barn; the barn, used for storage, was kept padlocked.
On September 13, 2013, Carlock was gone from his property for 24 hours. He left at 6:00 a.m. on September 13, 2013, and returned between 6:00 a.m. and 6:30 a.m. the next day. On his return, Carlock noticed immediately that the barn’s lock was broken and the door open. Items stored in the barn were strewn outside. Carlock’s truck, which was parked in the driveway, was extensively damaged on the inside and looked “stripped.” Finally, the back door of the residence was open; the lock was broken and the door had evidently been kicked in. Nothing, however, was taken from inside the residence.
Carlock called 911. Fresno Sheriff’s Deputy Yvette Paul reported to the residence to investigate the matter and to take a statement from Carlock. Paul saw footprints on the door to the residence as well as around the property. Paul also inspected the truck. She testified the truck’s “ignition [and] steering wheel had been completely destroyed as though somebody was trying to break into it to get it started to take it.”
Several hours after Paul left, Carlock heard car doors slamming behind the house. He found that “very strange” because he did not get many visitors and was not expecting any that day. So he “got [his] gun, loaded it, then ... called 911.” The 911 call was made at 6:50 p.m. on September 14, 2013. As Carlock waited for police to arrive, he stayed in the foyer leading to the living room of his house.
Carlock heard people talking outside. Soon someone knocked on his front door, and, shortly thereafter, there was a “big thumping” sound on his back door. He then heard the back door being kicked in and opened. Someone entered the house and, from inside the kitchen, yelled “[s]omething to the effect that they’re the police, and this was private property.” Carlock testified that, at that point, “[f]or some reason it stopped.... they didn’t come through the—into the living room like I thought they were going to.” Carlock was “wondering what was going on” and “all of a sudden somebody [was] like trying to pry open the back window to one of the rooms in the house.” Carlock went into that room, walked over to the window, saw Nicholson trying to pry it open, and pointed his gun at him. Nicholson said, “Oh, shit,” and “bolted” towards his car. Carlock also “saw a girl run after [Nicholson]”; as she ran past the window by which Carlock was standing, she “looked up and said, ‘Oh, my God,’ and kept running.”
Carlock went outside and saw Nicholson drive off in a white four-door Hyundai Sonata. Deputy Randall Heckman stopped the car at a nearby stop sign. Meanwhile, Paul contacted Carlock as part of investigating the latest incident. At law enforcement’s behest, Carlock identified Nicholson and a woman accompanying him as the people he had seen on his property. A search of Nicholson’s car yielded a crowbar as well as items taken from Carlock’s property. The police also matched Nicholson’s shoes to shoeprints found near the window where Carlock had pointed his gun at him.
Nicholson was questioned at the sheriff’s substation. He did not deny his presence on Carlock’s property, but, initially, could not explain why he was there. Later, he said he was walking to the house to ask for a cup of water when he heard someone scream inside, prompting him to attempt, unsuccessfully, to kick in a door so as to offer assistance. At that point, the homeowner confronted and pointed a gun at him. As for the stolen items in his car, Nicholson said he found those on the street, near Carlock’s property.
After deputies questioned this story based on footprints seen by Paul that morning, Nicholson said he was on the property earlier in the day as well, around 6:00 a.m., to smoke marijuana. He assumed the place was abandoned because the barn door was pried open. Nicholson took some items from the barn—items that were later found in his car. Although the back door to the residence was open, he did not try to go inside the house at that time. Nicholson denied trying to steal the truck or damaging it in the process. He returned to Carlock’s property in the evening, with some companions whom he believed could estimate the value of some antiques he had seen there that morning, only to run into the owner.
Nicholson was charged with two counts of burglary of an inhabited dwelling (counts 1 & 2; Pen. Code, §§ 459, 460, subd. (a)), one count of burglary of a detached garage, i.e., the barn (count 3; §§ 459, 460, subd. (b)), and one count of attempted unlawful taking of a motor vehicle (count 4; § 664; Veh. Code, § 10851, subd. (a)). As to count 1, the information alleged that a person other than an accomplice was present during the commission of the offense (§ 667.5, subd. (c)(21)). The information further alleged Nicholson had served six prior prison terms (§ 667.5, subd. (b)).
The case proceeded to jury trial. The jury found Nicholson guilty on counts 1 and 4 and not guilty on count 2. The jury’s verdict on count 3 is disputed and is the subject of this appeal (the trial court proceeded on the assumption that Nicholson was convicted on count 3 and sentenced him on this count). The jury also found true the allegation, with respect to count 1, that a person other than an accomplice was present during the commission of the crime. Nicholson admitted the prior prison term allegations.
The court sentenced Nicholson to an aggregate term of 10 years in prison: the upper term of six years on count 1, a concurrent term of three years on count 3, a concurrent term of 16 months on count 4, and four consecutive one-year terms on four of the prior prison-term enhancements (the court ordered stricken two of the prior prison-term enhancements in the interest of justice).
DISCUSSION
Nicholson’s conviction for burglary of the barn in count 3
Nicholson appeals only his conviction, in count 3, for second degree burglary of the barn on Carlock’s property, for which he received a concurrent prison sentence of three years. As to this conviction, the certified reporter’s transcript reflects a verdict of “not guilty,” while the written verdict form and court minutes reflect a verdict of “guilty.” Nicholson argues the verdict reflected in the reporter’s transcript, i.e., the verdict read as guilty in open court and endorsed by the jury as read, is the jury’s true verdict, and therefore, his conviction for second degree burglary must be reversed.
Respondent agrees that the reporter’s transcript reflects the verdict read in open court as not guilty and would reflect the jury’s true verdict, if accurate. However, they argue that the reporter’s transcript contains a transcription error, and request the matter be remanded to permit the court to hold a hearing to determine whether, at the oral rendering of Nicholson’s verdict, the judicial assistant said guilty or not guilty.
Under section 1164, a true or “complete” verdict is one that has been received and read in open court by the clerk, acknowledged by the jury and recorded in the minutes of the court. (People v. Hendricks (1987) 43 Cal.3d 584, 597.) The issue in this case is what verdict was rendered or read in open court by the clerk or judicial assistant.
Under rule 8.155 of the California Rules of Court (former rule 12), a reviewing court may, “[o]n motion of a party, on stipulation, or on its own motion ... order the correction ... of any part of the record” on appeal to make it conform to the actual records of, or proceedings in, the trial court. (Cal. Rules of Court, rule 8.155(c)(1); see 9 Witkin, Cal. Proc. (5th ed. 2008) Appeal, § 682, p. 752; Boylan v. Marine (1951) 104 Cal.App.2d 321.) [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.) Appellate courts may also correct such clerical errors. (People v. Mitchell (2001) 26 Cal.4th 181, 186.) A transcription error, as argued by respondent, is in the nature of a clerical error, since it is not the result of the exercise of judicial discretion. (Candelario, supra, at p. 705.) In light of California Rules of Court, rule 8.155(c)(1) and Candelario, we will treat respondent’s request to remand the matter as a motion to correct the record.
Code of Civil Procedure section 273 states that the report of the official reporter, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case, is prima facie evidence of that testimony and court proceedings. Evidence Code section 602, in turn, states that a statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption. Thus, while there may be a presumption that the reporter’s transcript is correct, it is a rebuttable presumption.
As the Supreme Court reasoned in People v. Smith (1983) 33 Cal.3d 596, though the older rule is to give preference to the reporter’s transcript where there is a conflict, the modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case. (Id. at p. 599; see also People v. Harrison (2005) 35 Cal.4th 208, 226.) “When an irreconcilable conflict exists between the transcripts of the court reporter and the court clerk, the modern rule is not automatic deference to the reporter’s transcript, but rather adoption of the transcript due more credence under all the surrounding circumstances.” (People v. Rodriguez (2013) 222 Cal.App.4th 578, 586, disapproved on another ground in People v. Hall (2017) 2 Cal.5th 494, 503, fn. 2.)
Here, despite the “not guilty” language on count 3 in the reporter’s transcript, the record shows the following factual circumstances: (1) the verdict form on count 3 states “guilty”; (2) moments after the verdict was read by the clerk, when asked by the judge if the verdict, as read, was their individual verdict, all jurors agreed; (3) the minute order prepared by the clerk the same day the verdict was read (presumably the same person who read the verdict in open court) shows a guilty verdict for count 3; (4) before sentencing, Nicholson wrote a personal letter to the judge stating, inter alia, that the jury found him guilty of “second degree burglary,” which is count 3; (5) the probation report states on three separate pages that Nicholson was found guilty on count 3, and no one requested any changes or corrections to the report; (6) at sentencing, Nicholson’s defense attorney stated Nicholson had been convicted, inter alia, of count 3 and made several arguments concerning that count, specifically requesting that it be reduced to a misdemeanor, that Proposition 47 was applicable, and that the low or middle term be imposed; and (7) Nicholson was sentenced on count 3 to the aggravated three years, without further objection from anyone.
Based on the overwhelming factual circumstances described above, we have no difficulty determining the clerk announced Nicholson guilty of second degree burglary as charged in count 3. We conclude the reporter’s transcript contains a transcription error reflecting the clerk’s oral pronouncement of the jury’s verdict on Count 3 as “not guilty” rather than “guilty.” We affirm the judgment and remand to the trial court to order the court reporter correct this error in the reporter’s transcript.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court to order the court reporter to correct the error in the reporter’s transcript on count 3, from “not guilty” to “guilty.”
____________________
FRANSON, J.

I CONCUR:



POOCHIGIAN, Acting P.J.

SMITH, J., dissenting.
I respectfully dissent.
Here, the reporter’s transcript reflects that in reading the jury’s verdicts in open court, the court’s judicial assistant announced that defendant was “guilty” on count 1, “not guilty” on count 2, “not guilty” on count 3, and “guilty” on count 4. Neither party wanted the jury polled individually, but in follow up the court asked the jurors, pursuant to Penal Code section 1149, “Ladies and gentlemen, as the verdicts were read by [my judicial assistant], if any of you disagree, let me know now. But are those as read your individual verdicts?” The court then surveyed the jurors and noted, “And all are either saying yes or nodding, and there’s no negative responses. Thank you, folks.” The court concluded, “[T]he verdict will be recorded as read and become part of the record.”
As the majority acknowledges (maj. opn. ante, p. 6), it is well established that a verdict unanimously endorsed by jurors upon reading in open court is the jury’s “only true verdict.” (People v. Thornton (1984) 155 Cal.App.3d 845, 858 [“the only true verdict was the one finding [the] appellant not guilty of the charged offense, since that was the only verdict unanimously endorsed by the jurors in open court”]; People v. Lankford (1976) 55 Cal.App.3d 203, 211 [“The oral declaration of the jurors endorsing the result is the true return of the verdict. There is no requirement that the verdict be in written form.”], disapproved on other grounds by People v. Collins (1976) 17 Cal.3d 687, 695, fn. 4; People v. Mestas (1967) 253 Cal.App.2d 780, 786 [“While it is the established custom in modern practice for the court to submit verdict forms to the jury, the oral declaration by the jurors unanimously endorsing a given result is the true ‘return of the verdict’ prior to the recording thereof.”].) The primary issue in this appeal is what verdict, as to count 3, was announced or read in open court by the judicial assistant and endorsed by the jury.
Despite the “not guilty” verdict reflected in the reporter’s transcript, the majority makes a factual determination, based on what they believe are “overwhelming factual circumstances,” that the judicial assistant in fact announced a verdict of “guilty” on count 3 in open court, and that the jury subsequently endorsed this verdict. (Maj. opn. ante, p. 7.) Having made this determination, the majority then orders the trial court to correct its own records (i.e, the reporter’s transcript) to reflect the factual finding made by this majority. By virtue of this appeal, there is obviously a conflict as to what was in fact said in open court and while the majority’s factual determination could very well be correct, there remains a possibility that it is not.
The majority overlooks the possibility—a possibility that even the People concede—that the reporter’s transcript may correctly reflect the verdict on count 3 as read in open court and endorsed (perhaps mistakenly) by the jury. Further, to the extent the court and parties might have been unclear as to what was said in court, they may simply have relied on the written verdict form for this count to clear up any ambiguity. Since it is likely the trial court and parties were unaware of the rule that the verdict announced in court and endorsed by the jury is the true verdict, such reliance on the written verdict form is not out of the question. As it is highly unlikely that the reporter’s transcript was available any time prior to defendant Bradley Elmer Nicholson’s notice of appeal, reliance by the court, the parties, and the probation officer on the written verdict form, which reflected a guilty verdict on count 3, could explain why they all proceeded as though a guilty verdict was rendered on count 3. As even the majority concedes (maj. opn. ante, p. 6), the true verdict is the verdict announced in open court and endorsed by the jury, not the verdict marked on the written verdict form. (See People v. Romero (1982) 31 Cal.3d 685, 687, 693-694 [although six jurors stated, in post-conviction declarations, that they intended to acquit on count one and convict on count two, the opposite of what was read in court and affirmed by the jury, the verdicts affirmed by the jury in open court were held to be the complete verdicts].)
In my view, the trial court is in the best position to resolve the conflict as to what actually was said in open court as to the verdict on count 3. My preference would be to accept the invitation of the People to remand the matter pursuant to California Rules of Court, rule 8.155(c)(2) for the trial court to make the proper determination in the first instance. Indeed, this procedure is approved by the applicable case law. (See, e.g., Verdier v. Verdier (1953) 118 Cal.App.2d 279, 281 [“It has been held that [a reviewing court] has no power to correct the records of the superior court”; rather, any difference between what happened in the trial court and its records shall be submitted to and settled by that court.]; Lane v. Pacific Greyhound Lines (1942) 55 Cal.App.2d 525, 527 [“When there is a dispute as to the correctness of the [reporter’s] transcript such dispute must be settled by the trial judge in the first instance.”].)
I ask, since the matter is being remanded to the trial court anyway, where is the harm in directing the trial court to make the requisite determination? What if an audio recording of the proceeding exists? Is not fact finding best left to the trial court? (See Verdier v. Verdier, supra, 118 Cal.App.2d at p. 282 [sufficiency of the evidence as to correctness of trial court records “is for the trial court to determine”].) If the trial court were to find that a guilty verdict was pronounced in open court, the conviction on count 3 would stand. If per chance the trial court were to determine that a not guilty verdict was read and affirmed by the jury in open court, reversal or vacatur of the conviction in count 3 would be required. The majority deduces from the circumstances following the verdict that a guilty verdict was pronounced on count 3 in open court. I am disinclined to make such an assumption and would allow the trial court to make the required factual finding in the first place.


SMITH, J.