Filed 3/20/20; Certified for Publication 4/9/20 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA


FREDERIC CARL SANNMANN,                                            D075600

         Plaintiff and Respondent,

         v.                                                        (Super. Ct. No. 37-2018-00003358-
                                                                   CU-WM-CTL)
DEPARTMENT OF JUSTICE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, John

Meyer, Judge. Reversed.



         Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney

General, Anthony R. Hakl and Maureen C. Onyeagbako, Deputy Attorneys General, for

Defendant and Appellant.

         Paul H. Neuharth, Jr., for Plaintiff and Respondent.
       In 1997, Frederic Sannmann pleaded guilty to felony robbery (Pen. Code, § 211),1

which rendered him ineligible to own firearms (former § 12021, now § 29800). In 2003,

he successfully moved under section 1203.4, subdivision (a) (hereafter § 1203.4(a)) to set

aside his conviction for most purposes. By statute, this relief did not restore Sannmann's

right to own firearms. (§ 1203.4(a).) In 2011, Sannmann successfully moved—with the

prosecutor's concurrence—to set aside the earlier set-aside order, to withdraw his 1997

felony guilty plea, and to instead plead guilty to misdemeanor theft (§ 487) nunc pro tunc

to the date of his original plea. Sannmann immediately notified the California

Department of Justice (DOJ) of these changes and the DOJ eventually updated its records

accordingly. However, six years later, when Sannmann tried to buy a shotgun from a gun

store, the DOJ blocked the purchase based on Sannmann's original 1997 felony

conviction.

       Sannmann filed a petition for writ of mandamus seeking an order directing the

DOJ to release any holds on his ability to purchase firearms based on the 1997 felony

conviction. The trial court believed it lacked the authority to determine the validity of the

2011 set-aside order entered by another superior court judge. Thus, finding Sannmann's

record in the criminal case disclosed only a misdemeanor conviction (by virtue of the

2011 set-aside order), the court entered judgment for Sannmann and ordered the DOJ to

release its hold on Sannmann's purchase.




1      Further undesignated statutory references are to the Penal Code. Citations refer to
the version of the statutes in effect at the time of the relevant event.
                                             2
       On appeal, the DOJ contends the trial court erred by awarding mandamus relief

based on the 2011 set-aside order because the 2011 order was an unauthorized act in

excess of the superior court's jurisdiction. The DOJ does not otherwise seek in this

appeal to invalidate the 2011 set-aside order. For reasons we will explain, on the narrow

issue before us, we agree the trial court erred by granting mandamus relief based on the

2011 set-aside order and reverse the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                      The 1997 Guilty Plea

       In 1997, Sannmann pleaded guilty in case number SCD129922 (the criminal case)

to robbery under section 211, a "straight felony."2 He was placed on three years'

probation, subject to serving 365 days in jail and paying a fine.

                                  The 2003 Set-aside Order

       In 2003, after completing his term of probation, Sannmann moved under section

1203.4(a) to set aside his 1997 guilty plea and conviction. As it then existed, section

1203.4(a) stated in pertinent part:

          "In any case in which a defendant has fulfilled the conditions of
          probation for the entire period of probation, . . . the defendant
          shall . . . be permitted by the court to withdraw his or her plea of
          guilty . . . and enter a plea of not guilty; . . . and . . . the court shall
          thereupon dismiss the accusations or information against the


2      A "straight felony" is an offense punishable only as a felony (i.e., by death or
imprisonment in state prison). (People v. Mendez (1991) 234 Cal.App.3d 1773, 1779,
fn. 5 (Mendez).) By contrast, a "wobbler" is an offense that is "chargeable or, in the
discretion of the court, punishable as either a felony or a misdemeanor; that is, they are
punishable either by a term in state prison or by imprisonment in county jail and/or by a
fine." (People v. Park (2013) 56 Cal.4th 782, 789.)
                                                3
          defendant and except as noted below, he or she shall thereafter be
          released from all penalties and disabilities resulting from the offense
          of which he or she has been convicted . . . .

          "Dismissal of an accusation or information pursuant to this section
          does not [1] permit a person to own, possess, or have in his or her
          custody or control any firearm capable of being concealed upon the
          person or [2] prevent his or her conviction under Section 12021."3
          (Italics added.)

       The court granted Sannmann's motion, set aside his 1997 guilty plea, entered a

plea of not guilty, and dismissed the accusatory pleading. Tracking the language of the

statute, the court's order clarified that it "does not permit the defendant to own, possess,

or have custody or control of any firearm capable of being concealed upon the person,

and it does not prevent conviction of the defendant under [former section] 12021."

                                 The 2011 Set-aside Order

       In 2011, Sannmann filed another motion in the criminal case seeking to (1) set

aside the 2003 set-aside order (thereby reinstating his 1997 robbery conviction by guilty

plea); (2) withdraw his guilty plea to the robbery charge; and (3) enter a guilty plea to

misdemeanor grand theft (§ 487) instead of robbery, nunc pro tunc to the original plea

date in 1997. The prosecutor concurred in Sannmann's motion.




3      Former section 12021 made it a felony for any person previously convicted of a
felony to own or possess "any firearm." (Former § 12021, subd. (a)(1), italics added.)
The courts have held the Legislature's reference in this statute to "any firearm" prevails
over the reference in section 1203.4(a) to firearms "capable of being concealed." (People
v. Frawley (2000) 82 Cal.App.4th 784, 797 (Frawley).) There is no issue in this appeal
regarding this apparent conflict, which was, in any event, resolved by a subsequent
amendment to section 1203.4(a). (See Stats. 2003, ch. 49, § 1.)

                                              4
           The court granted Sannmann's motion and entered a minute order stating the

following: "Defense motion to set aside previous plea withdrawn and [section 1203.4(a)]

dated 11-10-03 is granted. [¶] Defendant now withdraws plea of PC211 [robbery] and

enters guilty plea to PC 487 [theft] per [section] 17(b)[(4)] as [lesser included offense] of

[count] 2 nunc pro tunc to 8-14-97."4

                   Sannmann Notifies the DOJ of the 2011 Set-aside Order

       Two days after the court entered the 2011 set-aside order, Sannmann (through

counsel) sent a letter to the DOJ's "Records Review Unit" enclosing and summarizing the

order and requesting that the DOJ "update [its] records as appropriate." The letter did not

indicate Sannmann was seeking to update his criminal history so that he could purchase a

firearm.

       After several exchanges of correspondence, none of which discussed firearms, the

DOJ advised Sannmann in March 2012 that his "criminal history record [was] being

amended to reflect the subsequent court dismissal" of the felony robbery conviction and

the subsequent misdemeanor "conviction of the [section 487] charge." The DOJ

provided Sannmann a copy of his amended criminal history reflecting these changes.

                    The DOJ Blocks Sannmann's Attempted Gun Purchase

       Over five years later, in October 2017, Sannmann attempted to buy a shotgun at a

gun store. While his purchase was pending approval, Sannmann received a letter from

4       Section 17, subdivision (b)(4) provides in part that a wobbler offense "is a
misdemeanor for all purposes" when "the prosecuting attorney files in a court having
jurisdiction over misdemeanor offenses a complaint specifying that the offense is a
misdemeanor . . . ."

                                              5
the DOJ's Bureau of Firearms stating his "purchase application is being denied" based on

a prior felony conviction.

                                    Mandamus Proceeding

       Shortly after his purchase was blocked, Sannmann filed a petition for writ of

mandate, the operative iteration of which sought an order "directing . . . that [the DOJ]

release any holds upon [Sannmann]'s ability to purchase or own firearms that are based

upon the [criminal case]."5

       After the parties briefed the matter, the trial court heard and granted Sannmann's

petition. The trial court explained, "[b]ased on a plain reading of the series of [o]rders

issued in the [criminal] case, [Sannmann] pled guilty to a misdemeanor and judgment

was entered on that plea. There is no felony plea or conviction." The court refused to

invalidate the 2011 set-aside order for several reasons.

       First, the court found it lacked the authority "to determine the correctness of

another Superior Court judge's order."

       Second, to the extent the court addressed the merits of the 2011 set-aside order, the

court observed that Sannmann's 2011 set-aside motion "was brought under [section] 17,"

which authorizes trial courts to grant relief even after a case has been "dismissed" under a

section 1203.4 set-aside order "[b]ecause 'a conviction which has been [set aside under

section 1203.4] still exists for limited purposes, including . . . the denial of the right to

5       In his original petition, Sannmann also sought an order directing the DOJ "to
accurately update its criminal history records for [Sannmann] to reflect a conviction of
only Penal Code § 487 as a misdemeanor as of August 14, 1997." Sannmann abandoned
this request in his operative amendment.

                                               6
carry a concealable weapon . . . .' " The trial court did not address the fact (discussed

post) that section 17 applies only to wobbler offenses, and not to straight felonies.

       Finally, after taking judicial notice of the file for the criminal case,6 the trial court

observed that the prosecutor "concur[red] with the defendant's plea," and "agreed with"

and did "not appeal the Order."

       The court later entered judgment in Sannmann's favor and ordered the issuance of

a peremptory writ of mandamus commanding the DOJ "to release any hold upon . . .

Sannmann's ability to purchase or own firearms that are based upon [the criminal case]."

                                        DISCUSSION

       The narrow issue before us is the DOJ's contention that the trial court erred by

issuing mandamus relief based on the 2011 set-aside order, which the DOJ maintains was

an unauthorized act in excess of the superior court's jurisdiction in the criminal case. As

so framed, we agree.

       "[E]ntitlement to postconviction relief" from "a final judgment of conviction . . . is

governed by statute." (See Mendez, supra, 234 Cal.App.3d at p. 1778; People v. Barazza

(1994) 30 Cal.App.4th 114, 120-121.) Generally speaking, section 1203.4 "is the only

postconviction relief from the consequences of a valid criminal conviction available to a

defendant" who was convicted of a felony and successfully completed probation.

(Barazza, at pp. 120-121; see People v. Chavez (2018) 4 Cal.5th 771, 788.)




6      The criminal case file is not in the appellate record in this case.

                                               7
       Sannmann properly acknowledges the 2003 order granting him relief under section

1203.4(a) "did not restore his right to own a firearm." (See Frawley, supra, 82

Cal.App.4th at p. 797 ["persons granted relief under [section 1203.4] remain liable to

prosecution under section 12021 for possession of any of the weapons proscribed by that

section"].) Thus, for Sannmann's firearm rights to have been restored, the trial court, in

issuing mandamus relief, must have correctly concluded that the 2011 set-aside order

validly set aside the section 1203.4(a) relief and reduced Sannmann's felony robbery

conviction to a misdemeanor theft conviction. We conclude the trial court erred in

reaching this conclusion.7

       The superior court's 2011 set-aside order purports to be based on two authorities:

section 17, subdivision (b)(4) and the court's inherent authority to modify orders "nunc

pro tunc." Neither ground authorized the superior court's order.

       Section 17, subdivision (b) specifies the circumstances under which wobbler

offenses are deemed misdemeanors rather than felonies. (§ 17, subd. (b) ["When a crime

is punishable, in the discretion of the court, either [1] by imprisonment in the state prison

or . . . [2] by fine or imprisonment in the county jail, it is a misdemeanor for all purposes

under the following circumstances . . . ."].) Subdivision (b)(4) of this section provides

that a wobbler will be deemed a misdemeanor "[w]hen the prosecuting attorney files . . . a

complaint specifying that the offense is a misdemeanor." (§ 17, subd. (b)(4).)



7     We recognize the trial court was in the untenable position of being asked to
determine the validity of a fellow superior court judge's prior ruling.

                                              8
       Here, however, Sannmann was charged with robbery under section 211. "Robbery

is a straight felony, and section 17 does not authorize the reduction of straight felonies to

misdemeanors." (Mendez, supra, 234 Cal.App.3d at p. 1779; see People v. Feyrer (2010)

48 Cal.4th 426, 441-442 ["[S]ection 17, subdivision (b) applies solely to [wobblers]. . . .

That statute does not confer upon the trial court the authority to reduce a straight felony

to a misdemeanor."]; People v. Mauch (2008) 163 Cal.App.4th 669, 674 ["Absent

alternate punishment authorized by statute, a trial court 'has no power to reduce a straight

felony to a misdemeanor.' "]; People v. Douglas (2000) 79 Cal.App.4th 810, 813 [section

17 "does not allow a court to reduce a straight felony to a misdemeanor"].) Thus, section

17, subdivision (d)(4) did not authorize the 2011 set-aside order.

       Nor was the order a proper exercise of the trial court's authority to issue a nunc pro

tunc order. " 'A nunc pro tunc order or judgment is one entered as of a time prior to the

actual entry, so that it is treated as effective at the earlier date.' " (In re Marriage of

Padgett (2009) 172 Cal.App.4th 830, 851.) Trial courts have the authority to enter nunc

pro tunc orders to address clerical errors, but not judicial errors. (People v. Kim (2012)

212 Cal.App.4th 117, 124 (Kim).) "The distinction between clerical error and judicial

error is 'whether the error was made in rendering the judgment, or in recording the

judgment rendered.' " (In re Candelario (1970) 3 Cal.3d 702, 705; see Kim, at pp. 123-

124; People v. Borja (2002) 95 Cal.App.4th 481, 485 (Borja) ["a nunc pro tunc order is

generally limited to correcting clerical errors; ' "a nunc pro tunc order cannot declare that

something was done which was not done." ' "].)



                                                9
          The 2011 set-aside order did not seek to correct a clerical error with respect to

Sannmann's original guilty plea. That is, the order was not based on a finding that the

court in 1997 erroneously recorded that Sannmann pleaded guilty to felony robbery

when, in fact, he had pleaded guilty to something else. Rather, the order sought to

retroactively modify the record to reflect a different plea than Sannmann entered and the

court correctly recorded. Our court has held this is not a proper use of a nunc pro tunc

order. (Borja, supra, 95 Cal.App.4th at p. 485 [order retroactively modifying sentence

from 365 days to 364 days to avoid adverse immigration consequences did "not involve a

clerical [error]," but rather, "sought imposition of a sentence different from the one that

had been intended, imposed and served."].) Thus, the 2011 set-aside order was not a

valid exercise of the court's inherent authority to correct clerical errors with nunc pro tunc

orders.

          In sum, neither of the authorities cited in the 2011 set-aside order authorized the

relief it granted.

          Apart from the language of the 2011 set-aside order, Sannmann contends the order

nonetheless is valid because it implemented the terms of his 1997 plea agreement.

Specifically, Sannmann asserts "it was the intent of the parties at the time of the plea that

[he would] be able to 'earn' his misdemeanor" "through exemplary conduct in his life,

both while on probation and once he was no longer supervised." This contention fails for

two reasons.

          First, Sannmann's assertions about the terms of his 1997 plea agreement are not in

the appellate record. "An appellate court's review is limited to consideration of the

                                                10
matters contained in the appellate record." (People v. Neilson (2007) 154 Cal.App.4th

1529, 1534.)

       Second, even if Sannmann's assertion were factually supported, it is legally

untenable. "[A] trial court lacks statutory authority to accept a negotiated plea which

would 'reduce' a 'straight felony' . . . to a misdemeanor upon successful completion of

probation." (People v. Beebe (1989) 216 Cal.App.3d 927, 930.) This holds true whether

the "reduction" is characterized as such under section 17, subdivision (b) (which, as

discussed above, applies only to wobblers), or—as Sannmann argues is the case here—as

allowing the withdrawal of the original plea and entry of a new plea. (Beebe, at p. 931

[construing a plea agreement as "entitl[ing] [the] defendant, upon successful completion

of his probation, to withdraw his . . . plea . . . and enter a new plea . . . is not authorized

by statute"].)

       Sannmann also cites People v. Tidwell (2016) 246 Cal.App.4th 212 (Tidwell) and

Meyer v. Superior Court (1966) 247 Cal.App.2d 133 (Meyer) to support the general

proposition that the granting of relief under section 1203.4—which dismisses the

accusatory pleading—does not preclude a defendant from subsequently obtaining further

appropriate relief. In Tidwell, for example, the court held that the defendant's prior relief

under section 1203.4 did not preclude the subsequent redesignation of his dismissed

felony as a misdemeanor under Proposition 47. (Tidwell, at p. 215.) And in Meyer, the

court held that the defendant's prior relief under section 1203.4 did not preclude the

subsequent reduction of his dismissed wobbler offense to a misdemeanor under section

17. (Meyer, at p. 140.)

                                               11
       Tidwell and Meyer do not aid Sannmann because the post-section 1203.4 relief

awarded in those cases was authorized by specific statutes. (Tidwell, supra, 246

Cal.App.4th at p. 216 [discussing § 1170.18]; Meyer, supra, 247 Cal.App.2d at p. 140

[discussing § 17].) Sannmann, by contrast, has identified no statute authorizing the relief

the 2011 set-aside order provided. (See Mendez, supra, 234 Cal.App.3d at p. 1778

["entitlement to postconviction relief" from "a final judgment of conviction . . . is

governed by statute."].)

       Because the 2011 set-aside order was not authorized by law, it "was not only

improper but also void because it was an act in excess of jurisdiction." (Kim, supra, 212

Cal.App.4th at p. 124 [order dismissing conviction in the interests of justice under section

1385 to avoid adverse immigration consequences was void where it was entered 12 years

after the defendant had completed his prison sentence and case was no longer active].)

Thus, the trial court erred by relying on the order to enter judgment in Sannmann's favor.

       Sannmann implicitly invokes the estoppel doctrine by arguing the DOJ "should be

precluded from now attempting to appeal" the 2011 set-aside order because he promptly

notified the DOJ of the order and the DOJ did not timely appeal. He maintains that

failing to enforce the 2011 set-aside order would prejudice him by depriving him of the

benefit of his 1997 plea bargain that "all his rights [would] be restored if he complied

with all the terms of his probation." We are not persuaded.

       Mendez, supra, 234 Cal.App.3d 1773, which both parties cite in their briefing, is

instructive. There, the trial court entered a stipulated—but unauthorized—order vacating

the defendant's straight-felony conviction for robbery and entering a new guilty plea to

                                             12
misdemeanor grand theft. (Id. at p. 1776.) Although the district attorney (representing

the People in the trial court) had stipulated to the order, the appellate court found the

Attorney General (representing the People on appeal) was not estopped from later

challenging the order. (Id. at pp. 1782-1783.) Although the court recognized that "[t]he

People are ordinarily bound by their stipulations . . . regardless of whether counsel was

the Attorney General or the district attorney," the court found this factor was "not

determinative" of the estoppel issue. (Id. at p. 1783.)

       Instead, the Mendez court focused " 'on the importance of the irregularity not only

to the parties but to the functioning of the courts and . . .other considerations of public

policy[,]' " as well as whether " 'allowance of a deviation would lead to confusion in the

processing of other cases by other litigants. [Citation.]' " (Mendez, supra, 234

Cal.App.3d at pp. 1782-1783.) Considering these factors, the court found "it would be

inappropriate to hold the People to a stipulation entered into by the district attorney under

a significant misapprehension of the law, and which authorizes privileges exceeding

those granted by the Legislature or the Governor's pardon, and not available to any other

similarly situated person." (Id. at p. 1784.)

       Likewise, here, it would be inappropriate to find the DOJ estopped from seeking

to avoid further enforcement of the unauthorized 2011 set-aside order. Although

Sannmann promptly notified one division of the DOJ of the 2011 set-aside order, his

notice gave no indication he contended the order restored his right to own or possess

firearms. In that vein, the order contravenes the legislative intent expressed in section

1203.4 that defendants convicted of felonies—even those who have performed admirably

                                                13
on probation and have had their convictions dismissed—shall not have their right to own

or possess firearms restored. (Mendez, supra, 234 Cal.App.3d at p. 1784; Frawley,

supra, 82 Cal.App.4th at p. 797.) The order, thus, violates " 'considerations of public

policy' " (Mendez, at p. 1782) and "authorizes privileges [to Sannmann] . . . not available

to any other similarly situated person" (id. at p. 1784). "To permit a court, years after a

person has pleaded guilty and the term has been served, to obtain a retroactive order

altering the record in a manner so that the conviction could not be later used, violates

th[e] Legislature's clear intent [under section 1203.4] . . . that prior convictions be

available for future use." (Borja, supra, 95 Cal.App.4th at p. 487.)

       These public policy considerations outweigh any countervailing reliance interests

Sannmann may claim in the 1997 plea agreement. First, as noted, Sannmann's factual

assertions regarding the terms of the plea are not supported by the record. Second,

Sannmann's reliance was unreasonable because the trial court was not authorized to

accept a plea that would allow the subsequent reduction of a straight felony to a

misdemeanor.

       In short, the superior court's 2011 set-aside order was not a proper basis on which

to award Sannmann the mandamus relief sought in this action.




                                              14
                                   DISPOSITION

     The judgment is reversed. The parties to bear their own costs on appeal.



                                                                          HALLER, J.

WE CONCUR:



McCONNELL, P. J.



AARON, J.




                                         15
Filed 4/9/20
                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA


FREDERIC CARL SANNMANN,                            D075600

        Plaintiff and Respondent,
                                                   (Super. Ct. No. 37-2018-00003358-
        v.                                         CU-WM-CTL)

DEPARTMENT OF JUSTICE,
                                                   ORDER GRANTING REQUEST
        Defendant and Appellant.                   FOR PUBLICATION


THE COURT:

        The opinion in this case filed March 20, 2020, was not certified for publication. It

appearing the opinion meets the standards for publication specified in California Rules of

Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is

GRANTED.

        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication

specified in California Rules of Court, rule 8.1105(c); and

        ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.


                                                                       McCONNELL, P. J.
Copies to: All parties
