Filed 10/28/13 P. v. Perez CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C070622

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF116784A)

         v.

MARIO PEREZ,

                   Defendant and Appellant.




         This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
         On January 25, 2011, defendant Mario Perez entered the Dillard‟s store in
Stockton and took $192 worth of merchandise without paying. Defendant had been
convicted of petty theft with a prior and served periods of incarceration in 2003, 2008,
and 2010.


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        On February 17, 2011, defendant entered a plea of guilty to violation of Penal
Code section 6661 and admitted three priors in exchange for five years‟ probation, subject
to conditions including 12 months in jail. Sentencing was deferred to permit defendant to
complete an academic semester; defendant was warned that if he failed to make required
court appearances he faced a maximum of three years in prison.
        Defendant was present for sentencing in May 2011, July 2011, and August 2011,
and each time sentencing was continued. At the continued sentencing hearing on
September 15, 2011, defendant failed to appear and a bench warrant was issued.
        On September 16, 2011, the prosecutor filed an amended complaint, adding a
charge of felony failure to appear (FTA). (§ 1320, subd. (b); count 2.) On January 19,
2012, defendant appeared. Defendant provided no justification for his absence at the
September 2011 hearing and for not appearing until January 2012, and was sentenced
consistent with his earlier plea. Both the minute order and the clerk‟s minutes reflect that
defendant entered a plea of guilty to FTA. The reporter‟s transcript, however, does not
reflect that defendant ever orally entered a plea to the FTA charge. The trial court
sentenced defendant to the upper term of three years for petty theft with priors, with
16 months to be served in county jail and the remaining 20 months under mandatory
supervision (§ 1170, subd. (h)(5)(B)), and to time served on the FTA (nine days). The
court ordered defendant to pay $334 in fines and a $240 probation revocation restitution
fine, suspended upon successful completion of mandatory supervision. The court orally
ordered $334 in fines but did not break down the fines. The minute order for January 19,
2012, reflects a $240 restitution fine, a $24 administrative surcharge for the restitution
fine, a $30 conviction assessment, and a $40 court security fee. The court orally ordered
a $240 probation revocation restitution fine, but this fine does not appear in the minute




1   Undesignated section references are to the Penal Code.

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order of sentencing. The abstract of judgment reflects a $240 restitution fine, a $24
surcharge, a $40 court security fee, and a $30 criminal conviction assessment. The court
did not orally award the time, although the clerk orally stated that defendant had nine
days of credit and the credit appears on the minute order of sentencing and the abstract of
judgment. The abstract of judgment reflects the conviction and sentence for felony FTA.
A document entitled “Sentence pursuant to PC 1170(h)” reflects that defendant was
sentenced to nine days, time served, on misdemeanor FTA.
       Defendant appeals.
       We appointed counsel to represent defendant on appeal. In a letter to the trial
court appeals clerk dated April 19, 2012, defense appellate counsel requested
augmentation of the record on appeal, claiming the reporter‟s transcript was incomplete
because it failed to include defendant‟s entry of a guilty plea to count 2 (FTA). The court
reporter filed a declaration, claiming that “everything that transpired on the record on
those dates given” was in the record on appeal. Defense appellate counsel then applied in
the trial court to settle the record on appeal. The trial court granted the request.
       On August 8, 2012, the trial court held a “settled statement” hearing. Defendant
was present and represented by defense counsel (a deputy public defender). The
reporter‟s transcript of the hearing reflects that instead of settling the record, defense
counsel stated that “[w]e discussed the appellate issues with the misdemeanor 1320”
(FTA, count 2) and that the “best way we decide[d] to resolve that is [to] vacate the
judgment, withdraw his plea and dismiss that charge.” (Italics added.) The People did
not oppose the motion and the court granted the motion.
       Defense appellate counsel later requested that the trial court correct the abstract of
judgment. He claimed the trial court erroneously imposed a $240 restitution fine (rather
than the $200 fine in effect at the time of defendant‟s offense) and a $240 probation
revocation restitution fine (when there is no probation after a sentence under
section 1170, subdivision (h)), and erred in its award of custody credit. Defense appellate

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counsel did not augment the record on appeal with an amended abstract of judgment
reflecting whether the trial court ever made the changes requested. Defense appellate
counsel filed an opening brief that sets forth the facts of the case and requests this court
to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than
30 days elapsed, and we received no communication from defendant. Defense appellate
counsel filed his Wende brief more than a month after he requested the corrections in the
trial court with no mention of the trial court‟s ruling on his request.
       We requested supplemental briefing with the following directions:
       “1) Discuss whether the trial court had jurisdiction to vacate the judgment, to
permit defendant to withdraw his guilty plea, and to dismiss count two, failure-to-appear.
       “2) Discuss whether the judgment must be modified to correct an unauthorized
sentence, that is, the amount of the restitution fine orally imposed and the imposition of a
probation revocation restitution fine orally imposed.
       “3) Discuss whether the judgment must be modified to award defendant
presentence custody credit towards count one, petty theft with priors.
       “4) Discuss whether remand is required to allow the trial court an opportunity to
set forth the statutory authority for the fees and fines imposed.”
       With respect to the trial court‟s jurisdiction to dismiss the FTA, defense appellate
counsel states, “all the parties impliedly decided that trying to settle the record was more
trouble than it was worth” or that the record “could not be settled” so the parties and the
trial court “agreed to the remedy of vacating the judgment authorized in Penal Code
section 1181, subdivision 9.” The People respond that the trial court had no jurisdiction
to vacate the judgment, permit defendant to withdraw his plea to count 2 (FTA), and
dismiss count 2. We agree with the People.



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       “ „ “[T]he filing of a valid notice of appeal vests jurisdiction of the cause in the
appellate court until determination of the appeal and issuance of the remittitur” [citation],
thereby divesting the trial court of jurisdiction over anything affecting the judgment.
[Citations.] Jurisdiction survives, however, where provided by statute. [Citations.]‟ ”
(People v. Flores (2003) 30 Cal.4th 1059, 1064.)
       “Section 1170, subdivision (d) confers upon the trial court broad authority to
„recall a sentence on its own motion for any reason rationally related to lawful sentencing
[and] then impose any otherwise lawful resentence suggested by the facts available at the
time of resentencing.‟ [Citation.] However, the 120-day period specified in
section 1170, subdivision (d) is jurisdictional; the court must recall the sentence within
the prescribed period. [Citations.]” (People v. Lockridge (1993) 12 Cal.App.4th 1752,
1757.) In other words, the sentencing court may recall a sentence if it does so within
120 days of the date of the defendant‟s commitment.
       Here, instead of settling the record, the trial court vacated judgment on the FTA,
allowing defendant to withdraw his plea to FTA, and granted the motion to dismiss the
FTA charge. This the trial court could not do. The time pursuant to section 1170,
subdivision (d) for doing so had long expired. And this is not a matter of a clerical error
or an unauthorized sentence, which may be corrected at any time. (See People v. Turrin
(2009) 176 Cal.App.4th 1200, 1205.)
       Section 1181, subdivision 9 provides: “When a verdict has been rendered or a
finding made against the defendant, the court may, upon his application, grant a new trial,
in the following cases only: [¶] . . . [¶] 9. When the right to a phonographic report has
not been waived, and when it is not possible to have a phonographic report of the trial
transcribed by a stenographic reporter as provided by law or by rule because of the death
or disability of a reporter who participated as a stenographic reporter at the trial or
because of the loss or destruction, in whole or in substantial part, of the notes of such
reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set

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aside and vacate the judgment, order or decree from which an appeal has been taken or is
to be taken and to order a new trial of the action or proceeding.”
        Defense appellate counsel‟s reliance upon section 1181, subdivision 9 is
misplaced. The trial court would have had the power and authority to set aside and
vacate a judgment if it still had jurisdiction. It did not. Jurisdiction had passed to this
court when defendant filed his notice of appeal. (See People v. Hales (1966)
244 Cal.App.2d 507, 511-512.) The trial court‟s action on August 8, 2012, was null and
void.
        The People claim that count 2 must be stricken on appeal absent a reporter‟s
transcript showing that defendant entered a guilty plea to count 2. We disagree that the
remedy on appeal is to strike count 2.
        Under both the state and federal law, defendant is entitled “ „to an appellate record
“adequate to permit [him or her] to argue” the points raised in the appeal. [Citation.]
. . . The defendant has the burden of showing the record is inadequate to permit
meaningful appellate review. [Citation.]‟ [Citations.]” (People v. Harris (2008)
43 Cal.4th 1269, 1280.)
        Section 1181, subdivision 9 authorizes a grant of a new trial. “ „Unquestionably, a
reviewing court has the statutory authority to set aside the judgment and order a new trial
when the transcript notes have been lost or destroyed.‟ [Citations.] „ “ „The test is
whether in light of all the circumstances it appears that the lost portion is “substantial” in
that it affects the ability of the reviewing court to conduct a meaningful review and the
ability of the defendant to properly perfect his appeal.‟ ” [Citations.]‟ [Citation.]”
(People v. Cervantes (2007) 150 Cal.App.4th 1117, 1121 (Cervantes).)
        Defendant attempted to settle the record but the parties were apparently unable to
provide a settled record. Defense appellate counsel‟s cavalier response that the parties
and court decided trying to settle the record was “more trouble than it was worth” does
not inspire confidence. However, as officers of the court, we assume the prosecutor and

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the public defender made a “good-faith effort to settle the record” but could not. (See
Cervantes, supra, 150 Cal.App.4th at p. 1122.) On the record before us, which consists
of the clerk‟s transcript only, the reporter having filed a declaration that “everything that
transpired on the record on those dates given” was in the record on appeal, we are not
confident that defendant orally entered a plea to FTA (count 2) or, if he did, whether it
was to a felony or misdemeanor FTA.
       “ „The loss or destruction of a court reporter‟s notes is an uncommon occurrence.
As such it randomly burdens isolated appellants, denying them adequate appellate
review. It does not advance the cause of justice to require these appellants to proceed
with such a handicap. “It is far better that a defendant be retried than that the state
should permit itself to be subject to the criticism that it has denied an appellant a fair and
adequate record on appeal.” [Citations.] The burden of requiring a new hearing is small
indeed compared to the importance of ensuring that justice is done on an adequate
record on appeal.‟ [Citation.]” (Cervantes, supra, 150 Cal.App.4th at pp. 1121-1122.)
       Here, the lost portion is substantial and prevents meaningful review and
defendant‟s ability to raise an issue with respect to count 2. Thus, defendant has suffered
prejudicial error, requiring that we vacate judgment on count 2 and remand for a new trial
on that count.
       With respect to the restitution fine, the probation revocation restitution fine, and
custody credits, defense appellate counsel represents in his supplemental brief that the
judgment has already been modified to correct each, attaching a copy of an amended
abstract of judgment filed October 11, 2012, and a minute order dated October 10, 2012.
By failing to timely augment the record on appeal with these documents, defense
appellate counsel has wasted this court‟s time as well as the People‟s time. In filing its
supplemental brief, the People did not refer to the October 2012 amended abstract, so we
can assume that the Attorney General did not have it when she responded to the issues.
Thus, based on the original abstract, the People recognized that when defendant

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committed his crime the statutory limits for the restitution fine were a minimum of $200
and a maximum of $10,000 but argued that the $240 amount was not unauthorized since
it fell within those limits. In amending the abstract in October 2012 the trial court must
have agreed that it would not have imposed $240 had it known the applicable law
provided a minimum of $200.
       The People agree the trial court erred in imposing a “probation” revocation
restitution fine. The October 2012 amended abstract does not list this fine.
       With respect to custody credits, the People claim the nine days should be awarded
toward the petty theft with priors offense. The October 2012 amended abstract reflects
presentence custody credit of 12 days total toward the petty theft with priors offense; the
abstract, however, fails to break it down to actual days and conduct days. The trial court
amended the custody credits in response to defense appellate counsel‟s written request,
claiming correctly that defendant was entitled to one-for-one credits (six actual and six
conduct days) since defendant‟s offense occurred on January 25, 2011. (Stats. 2010,
ch. 426, §§ 2, 1, respectively, eff. Sept. 28, 2010.) The October 2012 abstract requires
correction to reflect that the court awarded six actual and six conduct days for the total
shown of 12 days of presentence custody credit.
       With respect to the statutory authority for the fees/fines, no further amendment of
the October 2012 amended abstract is required. But both parties miss the point, viz., that
the trial court never orally cited the authority when defendant was originally sentenced in
January 2012. (See People v. High (2004) 119 Cal.App.4th 1192, 1200.) We do not
have a reporter‟s transcript of the October 2012 hearing.
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is modified, vacating the judgment on count 2. The matter is
remanded to the trial court for a new trial on count 2. The court is directed to prepare a

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new abstract of judgment reflecting credit for six actual and six conduct days, for a total
of 12 days of presentence custody credit. As modified, the judgment is affirmed.



                                                            RAYE              , P. J.



We concur:



         BUTZ               , J.



         DUARTE             , J.




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