IN RE: ANTHONY B.

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Court of Appeal, Fourth District, Division 1, California.

IN RE: ANTHONY B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ANTHONY B., a Minor, Defendant and Appellant.

No. D008361.

Decided: August 29, 1989

Mary G. Swift, Sausalito, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Pat Zaharopoulos and Sara Gros–Cloren, Deputy Attys. Gen., for plaintiff and respondent.

We are confronted here with the question of whether the Juvenile Court can amend an order of commitment to the California Youth Authority and thereby extend the length of a youth's commitment without giving notice to the youth, his counsel or his parents.

The facts are not in dispute.   In November 1984 the Juvenile Court found true allegations that Anthony B. committed five offenses, including rape in violation of Penal Code section 261, subdivision (2).1  Anthony was 15 at the time of the crimes.   The Juvenile Court committed Anthony to the Youth Authority for a total commitment time of 11 years and 8 months.   He did not appeal the true finding on the Youth Authority commitment.   In December 1987, pursuant to a request by the Youth Authority,2 the Juvenile Court, by ex parte order, amended its original 1984 commitment order to indicate that the rape count was an offense listed in Welfare and Institutions Code 3 section 707, subdivision (b).   The effect of the amendment, under section 1769, was to extend Anthony's maximum commitment from his 21st birthday to his 25th birthday.   Neither Anthony nor his attorney was given notice of the amendment.   An attempt to provide notice to Anthony's father of the right to seek review of the order apparently was made, but this notice was not served.   Anthony filed a motion to set aside the amendment order on the basis that neither he, his parents or counsel had been notified in violation of due process and section 776.4  The motion was denied.   This appeal followed.5

 Given these undisputed facts, the single issue presented is clearly drawn:  Did the summary procedure by which the 1984 commitment order was amended with no notice to Anthony, his counsel or his parents violate Anthony's due process rights?   The answer is yes.

The Fourteenth Amendment to the United States Constitution reads in part:  “nor shall any State deprive any person of life, liberty, or property, without due process of law;”  and protects “the individual against arbitrary action of government․”  (Wolff v. McDonnell (1974) 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935.)

It is well settled that juvenile proceedings which may result in substantial loss of personal freedom are regarded as quasi-criminal in nature, and as a consequence the fundamental notions of due process and fairness must be strictly observed.  (In re Winship (1970) 397 U.S. 358, 359, 90 S.Ct. 1068, 1069–70, 25 L.Ed.2d 368;  In re Arthur N. (1976) 16 Cal.3d 226, 239–240, 127 Cal.Rptr. 641, 545 P.2d 1345.)

 Procedural due process analysis typically involves a two-prong examination:  (1) whether a liberty or property interest has been interfered with by the state;  and (2) whether the procedure that caused the interference was constitutionally adequate.  (Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548;  Hewitt v. Helms (1983) 459 U.S. 460, 472, 103 S.Ct. 864, 74 L.Ed.2d 675.)   As to the first prong of the test, “[w]hether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’  [Citations.]”  (Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484.)  “The question is not merely the ‘weight’ of the individual's interest, but whether the nature of the interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.”  (Ibid.)  Here, it cannot seriously be contended that Anthony does not have a protected liberty interest at stake—the state's action will tack on the possibility of an additional four years to his Youth Authority commitment.

In the context of an order extending a youth's detention for treatment by the Youth Authority that did not meet statutory time limits, this court has observed:

“Due process is not a concept to be taken lightly.   It connotes the type of constitutionally mandated procedures that must be afforded an individual.  ‘Its content is a function of many variables, including the nature of the right affected․’  [Citation.]  ‘The extent to which procedural due process must be afforded [an individual] is influenced by the extent to which he may be “condemned to suffer grievous loss,” [citation], and depends upon whether the [individual's] interest in avoiding that loss outweighs the governmental interest in summary adjudication.’  [Citations.]   In effect, as the significance of the interest involved increases, so does the level of procedural protection required by due process.  [Citation.]”  (People v. Hernandez (1983) 148 Cal.App.3d 560, 564, 196 Cal.Rptr. 31.)

Having determined that a protected liberty interest was interfered with here, we move on to the second prong—the constitutional adequacy of the procedure that caused the interference.   In Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, the United States Supreme Court discussed the requirements of due process:

“ ‘The fundamental requisite of due process of law is the opportunity to be heard.’  [Citation.]   This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest․

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.  [Citations.]   The notice must be of such nature as reasonably to convey the required information, [citation], and it must afford a reasonable time for those interested to make their appearance, [citations].”

We conclude here the absence of notice in any form and the resulting lack of any opportunity to be heard did not comport with the requirements of due process.

 The Attorney General argues that the amendment was merely correcting a clerical error and therefore prior notice and hearing was not necessary.   We disagree.

First, we note the comments of the trial court belie the notion this was a mere clerical error.   At the hearing on Anthony's motion to set aside the amendment order, the trial court conceded clerical error was not involved.

Moreover, to put the Attorney General's argument in its proper context, we must review several statutory and rule provisions.

Section 1769 provides:

“(a) Every person committed to the Department of the Youth Authority by a juvenile court shall, except as provided in subdivision (b), be discharged upon the expiration of a two-year period of control or when the person reaches his or her 21st birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).

“(b) Every person committed to the Department of the Youth Authority by a juvenile court who has been found to be a person described in Section 602 by reason of the violation of any of the offenses listed in subdivision (b) of Section 707, shall be discharged upon the expiration of a two-year period of control or when the person reaches his or her 25th birthday, whichever occurs later, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800).”  (Italics added.)

Section 707 deals with fitness hearings by which it is determined whether youths 16 years or older who allegedly committed specified serious offenses are fit and proper subjects to be dealt with under the juvenile court law or whether these youths should be tried in adult court.   Since Anthony was 15 years old at the time of the offense, section 707 only has relevance here because section 1769, subdivision (b), refers to—and employs—the list of offenses in subdivision (b) of section 707.   These offenses include:

“(4) Rape with force or violence or threat of great bodily harm.”

Rule 1373(c) of the California Rules of Court 6 provides:

“When a minor is committed to the Youth Authority, the disposition order shall specify whether or not the offense is one listed in section 707(b).”

Subdivision (c) of rule 1373 was added in 1983 after the Attorney General issued an opinion analyzing section 1769.   The Attorney General's opinion stated that the “who has been found” language in section 1769, subdivision (b), indicated “the Legislature contemplated the finding would be made prior to the [youth's] commitment.   We conclude that the finding requirement in section 1769(b) refers to a finding by the juvenile court before commitment of the [youth] and not to a finding by some other agency after commitment.”  (65 Ops.Cal.Atty.Gen. 359, 363 (1982).)   Also, the Judicial Council has noted subdivision (c) was added to rule 1373 to incorporate the requirement that Youth Authority commitments specify if the offense is listed in section 707, subdivision (b).  (Judicial Council of Cal., Ann.Rep. (1984) p. 85.)

Thus, it is clear the state's statutory and rule scheme contemplates a finding by the Juvenile Court that an offense is a section 707, subdivision (b), offense before the extended control provision of section 1769, subdivision (b), applies.   It is also clear under this scheme that the making of such a finding is a required judicial act.   The trial court's failure to perform this nondiscretionary judicial function was error in 1984, and the People did not appeal.   To amend the order by making the finding three years later denies Anthony of his appeal rights with respect to the 1984 judgment.

Furthermore, we find these circumstances analogous to the situation that arises when there is a failure to specify the degree of a crime that is divided into degrees.  (See Pen.Code, §§ 1157 and 1192.)   In such a situation, the defendant is provided a benefit:  the crime is deemed to be of the lesser degree.   This rule has been strictly applied in favor of defendants even though the results have sometimes been characterized as a triumph of form over substance.  (People v. Lamb (1986) 176 Cal.App.3d 932, 934, 222 Cal.Rptr. 570;  see also People v. Johns (1983) 145 Cal.App.3d 281, 295, 193 Cal.Rptr. 182.)

In Lamb, supra, this court observed:

“The frustration with form arises because the appellate court may not imply the degree of the crime from some other factual findings even though the logical reasoning process would leave no room for doubt on the degree of crime to which the defendant was found to be guilty or pleaded guilty.  [Citations.]

“[Penal Code] Sections 1157 and 1192, however, have a rational underpinning.   In both a plea and trial context there must be an express finding on the degree of the crime to avoid the defendant being placed at risk that the degree of the crime will be increased after judgment.   Modification of a criminal judgment is contrary to the strong policy which prohibits judicial action following judgment except to permit the correction of clerical errors.  [Citation.]”  (176 Cal.App.3d at pp. 934–935, 222 Cal.Rptr. 570.)

Likewise, here, an express finding regarding section 707 was required, and the failure to make that finding—coupled with a later request for amendment—placed Anthony at risk of increased incarceration after judgment.

The Attorney General relies on In re Rodney F. (1988) 203 Cal.App.3d 177, 249 Cal.Rptr. 424, which apparently is the only reported case dealing with the Juvenile Court amending or supplementing its original order of commitment to designate an offense as a section 707, subdivision (b), offense.   In In re Rodney F., the initial order of commitment was filed on May 13, 1987.   In a supplemental Youth Authority commitment order filed on May 27, 1987, the court found the youth violated an offense listed in section 707, subdivision (b).  The Court of Appeal held because this finding was mandatory under rule 1373(c), the omission in the initial order was a clerical error, and the correction of this clerical error did not require the presence of the youth or his counsel.  (In re Rodney F., supra, 203 Cal.App.3d at p. 188, 249 Cal.Rptr. 424.)

Not only do we find In re Rodney F. distinguishable because of the large difference in time,7 we also disagree with its implied conclusion that the omission of the section 707, subdivision (b), finding necessarily is a mere clerical error that can be corrected in a summary procedure without hearing or notice to the affected parties.

In In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729, our Supreme Court discussed the difference between clerical and judicial error with respect to the question of when a judgment can be properly amended:

“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.  [Citations.]   The power exists independently of statute and may be exercised in criminal as well as in civil cases.  [Citation.]   The power is unaffected by the pendency of an appeal or a habeas corpus proceeding.  [Citation.]   The court may correct such errors on its own motion or upon the application of the parties.  [Citation.]

“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.’  [Citation.]   Any attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted.  [Citation.]

“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.  [Citations.]”

We conclude the record here does not permit a finding that the 1987 amendment was merely the correction of clerical error.   Clearly, Anthony's rights are substantially affected by the amendment.   The section 707, subdivision (b), designation increases the maximum length of Anthony's commitment by four years.   Moreover, the record on appeal sheds little light on why the request by the Youth Authority was first ignored in 1984 and then granted in 1987;  hence, we cannot say “the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.”  (In re Candelario, supra, 3 Cal.3d at p. 705, 91 Cal.Rptr. 497, 477 P.2d 729.)

Our conclusion is bolstered by the Supreme Court's analysis in In re Candelario, supra, in which the defendant, who was convicted of selling heroin, had admitted a prior felony conviction.   The abstract of judgment recited the heroin conviction but did not contain a finding on the prior conviction.   About a month later, the trial court filed an amended abstract of judgment, which added the prior conviction.   In a habeas corpus proceeding, the Supreme Court found the finding of the prior conviction was improperly added by amendment to the judgment and could not be used to enhance the defendant's sentence on the heroin conviction.  (In re Candelario, supra, 3 Cal.3d at p. 705, 91 Cal.Rptr. 497, 477 P.2d 729.)   The Supreme Court pointed out that since Candelario had admitted the prior conviction, under Penal Code section 1158 the trier of fact did not have to make an independent determination of its validity.   The court continued:

“Admission of the prior offense, however, does not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court.”

“Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court.   In such circumstances the silence operates as a finding that the prior conviction was not true.  [Citation.]   Even when, as in the present case, the defendant admits the prior conviction before trial, the court is not compelled to make a finding on the charge.  [Citation.]․  It cannot be presumed in every case, therefore, that failure of the court to include the prior conviction in the judgment is inadvertent clerical error.”  (3 Cal.3d at pp. 706–707, 91 Cal.Rptr. 497, 477 P.2d 729, fns. omitted.)  8

We conclude the December 28, 1987, ex parte amendment to the November 13, 1984, commitment order is invalid because it failed to comport with the minimum requirements of due process and this failure cannot be excused on the basis that the amendment was a mere correction of a clerical error.

DISPOSITION

Reversed with directions to strike the amended order.

FOOTNOTES

1.   Penal Code section 261, subdivision (2), provides:  “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:  [¶ ] (2) Where it is accomplished against a person's will by means of force, violence, or fear of immediate and unlawful bodily injury on the person or another.”

2.   This apparently was the second request by the Youth Authority to amend the commitment order to designate a section 707, subdivision (b), offense.   On December 5, 1984, the Youth Authority wrote the Juvenile Court, asking, among other things, to designate the Penal Code section 261, subdivision (2), count as an offense listed in Welfare and Institutions Code section 707, subdivision (b).   The court file does not indicate any action was taken in response to the December 5, 1984, letter.   On December 16, 1987, the Youth Authority wrote the Juvenile Court “again requesting a 707(b) designation” and referred the court to the December 5, 1984, letter.   The Juvenile Court received the second letter on December 24, 1987. and granted the request on December 28, 1987.

3.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

4.   Section 776 provides:  “No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefor has been given by the judge or the clerk of the court to the probation officer and prosecuting attorney and to the minor's counsel of record, or if there is no counsel of record, to the minor and his parent or guardian.”

5.   Penal Code section 1237, subdivision (b), provides:  “An appeal may be taken by the defendant:  [¶ ] (b) From any order made after judgment, affecting the substantial rights of the party.”

6.   All rule references are to the California Rules of Court unless otherwise specified.

7.   In In re Rodney F., supra, 203 CalApp.3d 177, 249 Cal.Rptr. 424, the Juvenile Court's supplemental order designating the offense as a section 707, subdivision (b), offense was filed two weeks after the initial order.   Here, the Juvenile Court's amendment was filed three years and one month after the original order.

8.   As we have done, the court in Candelario, supra, also found an analogous situation in Penal Code sections 1157 and 1192, which provide that when the trier of fact fails to specify the degree of a crime, the crime is deemed to be of the lesser degree.

TODD, Associate Justice.

KREMER, P.J., and BENKE, J., concur.

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