People v. Gouveia CA6

Filed 7/2/14 P. v. Gouveia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039981
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC635647)

v.

BRIAN JOSEPH GOUVEIA,

Defendant and Appellant.

"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 time so as to make these records reflect the true
facts. [Citations.] This rule allowing correction of clerical error, whether made by the
clerk, counsel, or the court itself, is to be distinguished from the situation involving
judicial error, which can only be corrected by appropriate statutory procedure.
[Citations.] The distinction between clerical error and judicial error is that the former is
inadvertently made while the latter is made advertently 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 clerical error or judicial error
that the court was trying to correct when almost six years after the court rendered
judgment in this case the court amended the 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 disposition, appellant pleaded no contest to
assault with a deadly weapon, to wit, a vehicle, in case No. CC635647. (Pen. Code,
former § 245, subd. (a).)1 In exchange for his plea, appellant 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—BB257184 and E9911993. Before he entered
his plea, the court told appellant "[t]here is one very serious consequence as a result of
pleading guilty or no contest to this charge and that is that your license to drive will be
suspended or revoked by the Department of Motor Vehicles and, as a condition of the
sentencing in this matter, 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-year prison term consecutive to his sentence
in BB257184. The probation officer informed the court that appellant had "credited out"
on the one-year sentence in this case. The court 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 any 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 driving privilege. Similarly, the abstract of
judgment is bereft of any order for a lifetime revocation of appellant's driving privilege.
1
At the time appellant committed his crime, subdivision (a)(1) of Penal Code
section 245 provided, "Any person who commits an assault upon the person of another
with a deadly weapon or instrument other than a firearm or by any means of force likely
to produce great bodily injury shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail 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.)
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Judgment in a criminal case is rendered 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 ban on appellant driving.
On December 12 and December 19, 2012, the same superior 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 omission 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 point amend the Abstract of Judgment to show
a revocation of the California driving privilege under Vehicle 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] wants 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 recommendations. 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 [defense 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 "DL Susp/Restr'd/Revk'd for" and the following handwritten
notation "LIFETIME[.]" No amended 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 attention that appellant had been driving and this was "contrary to
the intent of the Court." The court continued the matter to February 15th to allow the
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parties to brief the matter and ordered the reporter's transcript from the initial plea
agreement hearing and the sentencing hearing. Ultimately, on June 4, 2013, after the
court had reviewed the briefing submitted by the parties and listened to argument, the
court noted for the record that "there are two issues . . . . [¶] The first is the power of the
Court within 120 days to modify an Abstract of Judgment having had the time passage
lapse. The second is the power of the Court 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 correct errors that occur legally that affect
the parties before the court even after the 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 driving privilege was consistent with a judicial or clerical error.
Candelario2 is the primary case as far as the Court 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 proceedings, it became very clear that the Court had
to revoke. We had no other authority other than to have the People change the nature of
the pleading involved, which did 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, and 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 think was indeterminant [sic] sentencing, and it
still stayed with us that the Court had to independently impose a judgment increasing the
amount of years that a defendant would do as a part of the process. [¶] The failure to do

2
In re Candelario (1970) 3 Cal.3d 702 (Candelario).
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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 prior conviction. [¶] In this particular case, this is almost a
self-executing provision of law that 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 was 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 parties concerned. I'm,
therefore, keeping the initial order in effect."
Discussion
The question presented here is can the lower 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 whether 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 Vehicle 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 has 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 deadly weapon or instrument used to commit that offense, the
department immediately shall revoke the privilege of that person 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 relevant here, "In addition 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 an
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assault as described in subdivision (a) of section 245 of the Penal Code on . . . a
pedestrian and the offense occurs 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 victim was struck in the shoulder by the car; she
sustained a broken collarbone and a wound to her shoulder.
With these provisions in mind, we turn to the law regarding 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 correction 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, 129, 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 vehicle 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 principles limiting the use of
nunc pro tunc entries to correct errors or omissions in the original order or judgment.

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 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 become 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 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. The question presented to the court on a hearing of a
motion for a nunc pro tunc order is: What order was in fact 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 embraced in the court's decision, even though
the proposed amendment contains matters which [as here] 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." (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 was 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 correction of an erroneous record; 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 mistake of the court and may therefore properly
be treated as a clerical misprision rather than a judicial error. . . . There are many cases in
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which it so clearly appears that the judgment as entered is not the sentence which the law
ought to have pronounced upon the facts as established by the record, that the court acts
upon the presumption that the error is a clerical 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 errors. A few examples include orders correcting (1) an abstract
of judgment that erroneously showed sentences were to run concurrently when the order
in fact was that they were to run consecutively (People v. Flores (1960) 177 Cal.App.2d
610, 613–614); (2) a judgment where the court 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.App.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 erroneously cited the statute (§ 1026) under
which a court may issue a commitment order after 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 incorrect 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 nunc 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 finding that prior felony conviction allegation

3
In the Goldberg case a will directed that certain property be divided among four
children of the decedent, the petition for distribution prayed for distribution to those
entitled, and a minute order directed that a decree 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.) The effect of the nunc pro tunc
order was to make the decree of distribution conform to the exact provisions of the will.
(Id. at p. 711.)
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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 application of middle term could not be later
corrected nunc pro tunc to apply upper term 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 either concurrently or consecutively could not
be later corrected nunc pro tunc to have sentences run concurrently].)
However, our research has failed to disclose 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 [trial 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 court 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 trying to impose a penal sanction in this case
because the court could not have imposed a lifetime ban on appellant driving since
Vehicle Code section 13210 provides for a suspension of only "six months for a first
offense and one year for a second of subsequent offense."
That being said, amending the sentencing minutes nunc pro tunc caused the line
between imposing a penal sanction and setting in motion a civil consequence to become

9
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 suspends 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 abstract 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, imposed pursuant to Vehicle Code section 13351.5, is an
administrative civil sanction that is independent of the trial court's penal sanction. "In
numerous instances under provisions of California 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 case. The abstract of judgment in this case
reflects that appellant was convicted by plea of "Assault w/deadly weapon or by means of
force likely to produce GBI[.]" This was clerical 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 the court explained the charges as follows:
"Count 1 alleges on or about June 15, 2006, County 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 section 245(A)(1), a felony, was committed by you in
that you did commit an 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. [¶] To that charge what is your plea?" (Italics added.)
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Appellant responded "no contest." Thus, there can be no question in this case that
appellant was convicted of a felony for a violation 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 pleading 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 petitioner 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 abstract 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 "suspend[] 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 amended to reflect the true facts.
Disposition
The court's January 7, 2013 order amending the sentencing minutes nunc pro tunc
is reversed. However, the court may correct the abstract of judgment in this case to

11
reflect the fact that appellant pleaded no contest to assault with a deadly weapon, to wit, a
vehicle, by means of force likely to produce great bodily injury.

_____________________________
ELIA, J.

WE CONCUR:

____________________________
RUSHING, P. J.

____________________________
PREMO, J.

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