Filed 7/2/14 P. v. Gouveia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. BRIAN JOSEPH GOUVEIA, Defendant and Appellant. H039981 (Santa Clara County Super. Ct. No. CC635647)

"Independently of statute and on its own motion or on ex parte applications without notice, and regardless of time elapsed, the court may exercise its power to correct clerical errors. [Citations.]" ( People v. Flores (1960) 177 Cal.App. 2d 610, 613.) It is not open to question that "a court, in criminal as well as civil cases, has inherent power to correct clerical errors in its records at any tim e so as to make these records reflect the true facts. [Citations.] This rule allowing corre ction of clerical error, whether made by the clerk, counsel, or the court itself, is to be distinguished from th e situation involving judicial error, which can only be corrected by appropri ate statutory procedure. [Citations.] The distinction between clerical erro r and judicial error is that the former is inadvertently made while the latter is made a dvertently as the result of the exercise of judgment. [Citations.]" ( People v. Shultz (1965) 238 Cal.App.2d 804, 807.) In this appeal, we must determine whether it was cleric al error or judicial error that the court was trying to correct when almost six years after the court rendered2 judgment in this case the court amended th e minute order from the sentencing hearing to reflect that the Department of Motor Vehicles was to revoke appellant's driving privilege
for life. Facts and Proceedings Below In 2007, pursuant to a negotiated dispos ition, appellant pleaded no contest to assault with a deadly weapon, to wit, a vehicle, in cas e No. CC635647. (Pen. Code, former § 245, subd. (a).) 1 In exchange for his plea, appe llant was promised that he would receive a one-year prison term (top/bottom) that would be consecutive to a two-year prison term imposed in two other cases—BB2 57184 and E9911993. Before he entered his plea, the court told appella nt "[t]here is one very seri ous consequence as a result of pleading guilty or no contest to this charge an d that is that your license to drive will be suspended or revoked by the De partment of Motor Vehicles and, as a condition of the sentencing in this matt er, it will be for life." At the sentencing hearing in this case, the court denied probation and pursuant to the plea bargain sentenced appellant to a one-ye ar prison term consecutive to his sentence in BB257184. The probation offi cer informed the court that appellant had "credited out" on the one-year sentence in this case. The c ourt imposed various fines and fees but made no mention of the lifetime ban on driving in rendering judgment. Furthermore, the minute order from the sentencing hearing does not contain an y notations in the section that reads " 

# □ DL Susp/Restr'd/Revk'd for ____"; or any other notation that would indicate a lifetime revocation of appellant's driv ing privilege. Similarly, the abstract of judgment is bereft of any order for a lifetim e revocation of appellant 's driving privilege.

1 At the time appellant committed his cr ime, subdivision (a)(1 ) of Penal Code section 245 provided, "Any person who comm its an assault upon th e person of another with a deadly weapon or instrument other th an a firearm or by an y means of force likely to produce great bodily injury shall be puni shed by imprisonment in the state prison for two, three, or four years, or in a county ja il for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." (Stats. 2004, ch. 494, § 1.)3 Judgment in a criminal case is render ed when sentence is pronounced. ( People v.
Thomas (1959) 52 Cal.2d 521, 529, fn. 3.) "The pronouncing of sentence is a judicial act." ( In re Larsen (1955) 44 Cal.2d 642, 647.) Thus, the sentence in this case was devoid of any lifetime ba n on appellant driving.
On December 12 and Decembe r 19, 2012, the same superi or court judge that had imposed judgment set a hearing date in this case—initially for January 14, 2013, then for January 7, 2013. At the January 7 hearing, the court explained that it had been "brought
to the Court's attention that there was an om ission at the time of sentencing. At the time of the plea [appellant] was advised that he would not have a driver's license for the balance of his life and I'm going to at this poi nt amend the Abstract of Judgment to show
a revocation of the California driving privilege under Vehicl e Code section" 13351.5. The court continued the matter to allow appellant to be present at the hearing. The court wanted to "see if there are any issues that [defense counsel] want s to point out to the Court specifically on this. He was advised. It was a very busy sentencing calendar as I
had in domestic violence. It was not on the Probation re commendations. There is a body of law that says that an omission at the time of sentencing is an act of judicial grace and
the defendant is entitled to that benefit. By the same token, that is applied in certain situations where priors have been stricken because of the Court error and there being judicial errors. I am not sure at this point whether I had the jurisdiction to do it. I am doing it, but I would like to hear more from [d efense counsel] and [the prosecutor] about whether I do have jurisdiction to now impose this that was left off in the original sentence. But I am imposing it." The minute order from this hearing contains a check
mark in the box before "D L Susp/Restr'd/Revk'd for" and the following handwritten notation "LIFETIME[.]" No am ended abstract of judgment appears in the record. At the continued hearing on January 8, 2013, the court explained that it had been brought to the court's attenti on that appellant had been driv ing and this was "contrary to
the intent of the Court." The court contin ued the matter to February 15th to allow the4 parties to brief the matter and ordered th e reporter's transcript from the initial plea agreement hearing and the sent encing hearing. Ultimately, on June 4, 2013, after the
court had reviewed the briefi ng submitted by the parties and listened to argument, the
court noted for the record that "there are two issu es . . . . [¶] The fi rst is the power of the Court within 120 days to modi fy an Abstract of Judgment having had the time passage lapse. The second is the power of the Cour t to modify or otherwise correct what is clearly an error. And I have not classified either as judicial or clerical at this point. [¶] I believe that the Court has inherent power to co rrect errors that occur legally that affect the parties before the court even after th e 120 days. The Court technically loses jurisdiction, but there are certain items such as restitution and other matters that the Court can address on equitable grounds. So I think that on that level, there is jurisdiction to act. [¶] The second is whether my initial order back in January 7th of 2013 of, in fact, revoking [appellant]'s dr iving privilege was consistent with a judicial or clerical error.
Candelario 2 is the primary case as far as the C ourt is concerned as to whether I can correct. [¶] During the negotiations of this case, indeed, during the voir dire of [appellant], during the course of the proceeding s, it became very clear that the Court had to revoke. We had no other authority other th an to have the People change the nature of the pleading involved, which di d allege a vehicle. That was not done by Mr. Zarzana, who was the deputy district attorney having control of the case. And as a consequence, [appellant] was voir dired, a nd I'm positive this enormous consequence was discussed with his counsel. [¶] In the Court's opinion, this is not the type of situation that was in
Candelario . In that case, the defendant had a prior conviction and it is a part of the sentencing process at that time, which I thi nk was indeterminant [sic] sentencing, and it still stayed with us that th e Court had to independently impose a judgment increasing the amount of years that a defendant would do as a part of the proc ess. [¶] The failure to do

2 In re Candelario (1970) 3 Cal.3d 702 ( Candelario ).5 that under Candelario is viewed as a benefit. It's viewed as an exercise of discretion because the Court had failed to place it on the record that he was excused from the provision at that time of the prio r conviction. [¶] In this par ticular case, this is almost a self-executing provision of law th at if a defendant is convicted of this offense, then the revocation by DMV will naturally occur. This was not picked up by [the] people there in the courtroom and clearly I omitted it, and it wa s an error as far as I was concerned that it
was more in the nature of a clerical one than a judicial one. [¶] This is the type of paperwork that has normally drawn attention of the abstract desk and I believe that there was a clear intent to impose the revocation at the time of sentencing based on the voir dire that was gone into and the care that it was given by all partie s concerned. I'm, therefore, keeping the initial order in effect."
Discussion The question presented here is can the lo wer court correct the original sentencing minutes in this case, which is all that we have in the record, nunc pro tunc? The resolution of the issue depends on whethe r the lower court was trying to impose a criminal sanction by its nunc pro tunc order or set in motion a civil consequence.
At the heart of this case are two Vehi cle Code sections, 13351.5 and 13210. Vehicle Code section 13351.5, provides, in pertinent part: " (a) Upon receipt of a duly certified abstract of the record of any court showing that a person ha s been convicted of a felony for a violation of Section 245 of the Penal Code and that a vehicle was found by
the court to constitute the dead ly weapon or instrument used to commit that offense, the department immediately shall re voke the privilege of that pers on to drive a motor vehicle. [¶] (b) The department shall not reinstate a privilege revoked under subdivision (a) under any circumstances." Vehicle Code section 13210 provides as re levant here, "In add ition to the penalties set forth in subdivision (a) of Section 245 of the Penal Code, the court may order the suspension of the driving privilege of any operator of a motor vehicle who commits an6 assault as described in subdivision (a) of section 245 of the Penal Code on . . . a pedestrian and the offense oc curs on a highway." According to the probation officer's report in this case, after an argument between appellant and the victim, the victim got out of appellant's car; appellant pulled up beside the victim, put his car into reverse and
turned the front toward the victim. The vict im was struck in the shoulder by the car; she
sustained a broken collarbone and a wound to her shoulder. With these provisions in mi nd, we turn to the law rega rding orders made nunc pro

tunc. A nunc pro tunc modification of an order is an entry made in the present that has effect as of the order's original date. (See In re Marriage of Padgett (2009) 172 Cal.App.4th 830, 851.) Nunc pro tunc modifications may resolve only true clerical errors. ( People v. Kim (2012) 212 Cal.App.4th 117, 124.) When clerical errors in the judgment or order are corrected by the court under its inherent power, the order of correcti on may, if necessary, be made nunc pro tunc as of the time of the original entry, and this is true regardless of lapse of time. ( LaMar v. Superior Court (1948) 87 Cal.App.2d 126, 12 9, disapproved on another point in Phelan v. Superior Court (1950) 35 Cal.2d 363, 371; Wilson v. Wilson (1948) 88 Cal.App.2d 382, 384.) However, " 'it is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did. 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 ve hicle to review an order for legal or judicial error by "correcting" the order in order to enter a new one.' [Citation.]" ( In re Marriage of Padgett, supra, 172 Cal.App.4th at p. 852.)
Our decision in this case turns on well-established prin ciples limiting the use of nunc pro tunc entries to correct errors or om issions in the original order or judgment.7 In Estate of Eckstrom (1960) 54 Cal.2d 540 ( Eckstrom ), the California Supreme Court explained, "[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 b ecome final even though made in error, if in fact the order made was that intended to be made . . . . ( Id . at p. 544.) " 'The function
of a nunc pro tunc order is merely to correct the reco rd 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 ma de. The question presented to the court on a hearing of a
motion for a nunc pro tunc order is: What order was in fa ct made at the time by the trial judge?' " ( Ibid .) The court went on to hold that nunc pro tunc orders may not be made to "make the judgment express anything not embra ced in the court's decision, even though the proposed amendment contains matters wh ich [as here] ought to have been so pronounced. [Citations.]" ( Ibid. ) "It is only when the form of the judgment fails to
coincide with the substa nce thereof, as intended at the time of the rendition of the judgment , that it can be reach ed by a corrective nunc pro tunc order ." ( Id . at p. 545, italics added.)

At the time of sentencing the court made no mention of imposing the lifetime ban on appellant driving. Certainly, it appears that the court intended to impose such a ban and the record supports the inference that it wa s a part of the plea bargain in this case. There is some supporting authority for the proposition that the order made undoubtedly was not that which the court ought to have made, and therefore it should be subject to
correction. In Estate of Goldberg (1938) 10 Cal.2d 709 ( Goldberg ), the court noted, "In 14 California Jurisprudence, pp. 995, 996, the rule is thus stated: 'But the power to amend is not wholly confined to the correcti on of an erroneous reco rd; it extends also to cases where some provision of or omission from an order or judgment as made or
rendered was due to the inadvertence or mist ake of the court and may therefore properly be treated as a clerical mispri sion rather than a judicial erro r. . . . There are many cases in8 which it so clearly appears that the judgment as entered is not the sentence which the law ought to have pronoun ced upon the facts as established by the record, that the court acts upon the presumption that the error is a cleric al misprision rather than a judicial blunder, and sets the judgment, or rather the judgment entry, right by an amendment nunc pro

tunc ' . . . ." ( Id . at pp. 715-716.) 3
Numerous instances exist in which nunc pro tunc orders have been held to be proper to correct clerical erro rs. A few examples include orde rs correcting (1) an abstract of judgment that erroneously showed sentence s were to run concurre ntly when the order in fact was that they we re to run consecutively ( People v. Flores (1960) 177 Cal.App.2d 610, 613–614); (2) a judgment where the cour t found defendant guilty of a particular
offense but cited a code section that did not correspond with the offense ( People v. Shirley (1970) 10 Cal.Ap p.3d 268, 275; People v. Schultz (1965) 238 Cal.App.2d 804, 807–808); (3) an order committing the defendant based upon his current insanity (under Penal Code section 1368), where the court er roneously cited the statute (§ 1026) under which a court may issue a commitment order afte r a finding that the defendant was insane when the offense was committed ( People v. Anderson (1976) 59 Cal.App.3d 831, 839); and (4) a judgment where there has been an in correct calculation of presentence credits ( People v. Jack (1989) 213 Cal.App.3d 913, 915–918). However, in other cases, courts have rejected attempts to correct judicial errors by subsequent nun c pro tunc orders. (See, e.g., Candelario, supra, 3 Cal.3d at pp. 706–707 [failure of oral pronouncement of judgment, and abstract to contain judicial fi nding that prior felony conviction allegation

3 In the Goldberg case a will directed that certain property be divi ded among four children of the deceden t, the petition for distribution pr ayed for distribution to those entitled, and a minute order directed that a de cree be prepared in accordance with the terms of the will. The decree omitted the name of one of the decedent's children, and the error was corrected by a nunc pro tunc order made some thirty-five years after entry of the decree. ( Goldberg , supra , 10 Cal.2d, at pp. 710-711.) Th e effect of the nunc pro tunc order was to make the decree of distribution c onform to the exact provi sions of the will. ( Id . at p. 711.)9 was true could not be corrected by amendment to abstract]; In re Wimbs (1966) 65 Cal.2d 490, 498 [purported correction of sentence to run concurrently, rather than consecutively as originally pronounced, improper]; People v. Drake (1981) 123 Cal.App.3d 59, 63–64 [court sentence of six years based upon app lication of middle term could not be later corrected nunc pro tunc to apply upper te rm in order to impose 10–year aggregate sentence intended]; Albori v. Sykes (1937) 18 Cal.App.2d 619, 622 [court's express
declination to order two sentences to run eith er concurrently or consecutively could not be later corrected nunc pro tunc to have sentences run concurrently].) However, our research has failed to disc lose any decision wherein the language quoted in Goldberg , supra , 10 Cal.2d at pp. 715-716, has been applied in the courts of
this state in a criminal case to correct a judgment or order to conform to what that judgment or order "ought to have" provided. An invalid nunc pro tunc order is void for lack of jurisdiction. (See APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 186 [tri al court was without authority in making improper nunc pro tunc order]; In re Marriage of Padgett, supra, 172 Cal.App.4th at p. 855 [order was void when trial court exceeded its power in making improper nunc pro tunc order].)
Under Vehicle Code section 13210 the lower court had the power to impose a criminal sanction on appellant and had the c ourt been trying to impose a penal sanction with its nunc pro tunc order we would find it void for lack of jurisdiction. However, we
are convinced that the lower court was not tr ying to impose a penal sanction in this case because the court could not have imposed a lifetime ban on appe llant driving since Vehicle Code section 13210 pr ovides for a suspension of only "six months for a first offense and one year for a sec ond of subsequent offense." That being said, amending the sentenci ng minutes nunc pro tunc caused the line between imposing a penal sanction and setting in motion a civil consequence to become10 blurred. We believe a straightforward and less contentious way to proceed is for the lower court to amend the abstract of judgment in this case. It is the DMV that administratively suspe nds a driver's license pursuant to Vehicle Code section 13351.5. (See Larsen v. Department of Motor Vehicles (1995) 12 Cal.4th 278, 284, [the act of the DMV in suspending a driver's license pursuant to Vehicle Code sections authorizing them so to do is an administrative act in performing a mandatory function and the DMV, having received an ab stract of judgment is simply required to suspend the defendant's driving privilege] .). The DMV's suspension of appellant's driving privilege under Vehicle Code section 13351.5 is substantively distinct from any punishment a court may impose as a result of a criminal conviction. In other words, the DMV's lifetime suspension, impo sed pursuant to Vehicle Code section 13351.5, is an administrative civil sanction that is independe nt of the trial court's penal sanction. "In numerous instances under provisions of Calif ornia law, a criminal conviction may give rise to a variety of collateral consequences." ( Larsen v. Department of Motor Vehicles , supra ,12 Cal.4th at p. 283.) This is one such ca se. The abstract of judgment in this case reflects that appellant was co nvicted by plea of "Assault w/de adly weapon or by means of force likely to produce GBI[.]" This was cleric al error; in fact, appellant was convicted by plea of "assault upon the person of Melinda Mayer . . . with a deadly weapon, an
instrument other than a firearm, to wit, a vehicle by means of force likely to produce great bodily injury ." (Italics added.) At the time appellant entered his plea th e court explained the charges as follows: "Count 1 alleges on or about June 15, 2006, Co unty of Santa Clara, State of California, crime of assault with a deadly weapon or by means of force likely to produce great bodily injury, in violation of Penal Code secti on 245(A)(1), a felony, was committed by you in that you did commit an assault upon the pers on of Melinda Mayer . . . with a deadly weapon, an instrument other than a firearm, to wit, a vehicle by means of force likely to produce great bodily injury. [¶] To that ch arge what is your plea?" (Italics added.)11 Appellant responded "no contes t." Thus, there can be no question in this case that appellant was convicted of a felony for a viol ation of section 245 of the Penal Code and that a vehicle constituted the deadly weapon or instrument used to commit the offense. Appellant so admitted by pleadi ng no contest. Since appellant admitted that the deadly weapon was a vehicle, it was not necessary for the judge to make an independent determination that the weapon used was a vehicle. (See In re Candelario , supra , 3 Cal.3d at p. 706, [since petitione r admitted the prior conviction, the trier of fact need not have made an independent determination of its validity.].) Although Vehicle Code section 13351.5 requires a duly certified abstra ct of the record of a court showing that a person has been convicted of a felony for violation of Penal Code section 245 and that a vehicle was found by the court to constitute the deadly weapon, it does not require that the court make an express finding on the record at the sentencing hearing and inform the
defendant that it has made such a finding. We presume the trial court performed its duty to make the required finding. (Evid. Code, § 664.) We have no doubt given the court's advisement to appellant that "as a result of pleading guilty or no contest" the Department of Motor Vehicles would "suspe nd[] or revoke[]" his driver's license "for life" that the court impliedly had made such a finding. We are unaware of any decision requiring that the court make express findings on the record at the time of sentencing. As such the abstract of judgment may be amen ded to reflect the true facts. Disposition The court's January 7, 2013 order amendi ng the sentencing minutes nunc pro tunc is reversed. However, the court may correct th e abstract of judgment in this case to12 reflect the fact that appellant pleaded no contes t to assault with a dead ly weapon, to wit, a vehicle, by means of force likely to produce great bodily injury.

_______

____________ __________ ELIA, J.

WE CONCUR:

____________ ________________ RUSHING, P. J.

____________ ________________ PREMO, J.