In re Daoud

A probation order may be revoked or modified only during the term of probation. (Pen. Code, § 1203.3; In re Griffin (1967) 67 Cal.2d 343 , 347 [ 62 Cal.Rptr. 1 , 431 P.2d 625 ]; People v. Smith (1970) 12 Cal.App.3d 621 , 625 [ 90 Cal.Rptr. 811 ].) Petitioner contends that the revocation of her probation on November 6, 1975, was a nullity since her probation had expired on February 7, 1975, two years after it had commenced. The People, on the other hand, contend that petitioner’s probation was revoked within the probation period as extended by the court’s order of December 24, 1974. We must ascertain, therefore, the effect of the court’s December 24, 1974, order upon the term of petitioner’s probation.

We note at the outset that the court’s nunc pro tunc order of October 23, 1975, does not bear significantly upon the issue before us. If the court’s order of December 24, 1974, did not extend the period of petitioner’s probation, the October 23 nunc pro tunc order came after the expiration of probation and constituted an empty gesture by a court lacking jurisdiction. It makes no difference that the October 23 order was given effect “as of December 24, 1974”; a court cannot revive lapsed jurisdiction by the simple expedient of issuing an order nunc pro tunc. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898 , 904 [ 98 Cal.Rptr. 57 , 489 P.2d 1385 ].)

Nor is it relevant that the nunc pro tunc order merely revised the original order to conform to what probably was the court’s original intention; any failure of the court to extend the probation period constituted judicial rather than clerical error. “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 [ 91 Cal.Rptr. 497 , 477 P.2d 729 ].) Since there is no claim that the December 24 order was incorrectly recorded, any error must be judicial. It is well settled that judicial error cannot be corrected once jurisdiction has expired.^[1] (In re Candelario,

The minute order of December 24, 1974, continued petitioner’s probation on its original term “except for modification that upon completion [of her sentence in the forgery case] and release on parole, Probation shall terminate.” Although the language could be clearer, the minute order apparently purports to extend the expiration date of petitioner’s probation from February 7, 1975, to such time as she was released from prison on the forgeiy sentences and placed on parole. Petitioner argues that the order could be read as creating alternative bases for the termination of probation; petitioner’s probation would terminate either t\vo years from the date it commenced, as originally ordered, or upon her release on parole from her forgeiy sentences, whichever came sooner.^[2] Petitioner’s interpretation, however, strains the language of the minute order and flies in the face of the court’s less ambiguous oral order of that same date in which it declared that it found petitioner in violation of her probation and continued that probation “until she serves a sentence in [the forgeiy case] ... at which time probation will terminate while she is on parole.”

Petitioner also contends that if the December 24, 1974, order purported to extend her probation until she served her sentences on the forgeiy convictions, it was void since it potentially extended her probation beyond the maximum term permitted by statute. Penal Code section 1203a,^[3] which governs the period of probation in misdemeanor cases,^[4] limits probation periods to three years or the maximum sentence

The People concede that the court’s order of December 24, 1974, was invalid to the extent that it extended probation beyond the three-year statutoiy maximum. They contend, however, that we should give that order limited effect by deeming it to have increased the term of petitioner’s probation to the statutory maximum of three years except that the probationary term would expire prior to that time if she were released on parole from her forgery sentences. This position comports with the limited authority on this question and appears to be sound.

In People v. Blume (1960) 183 Cal.App.2d 474 [ 7 Cal.Rptr. 16 ], the trial court suspended four consecutive one-year jail sentences and attempted to grant probation for two years on each count, with the total not to exceed five years. The statutoiy maximum probation in that case was four years. In the course of resolving another issue, the court sanctioned the state’s position by implication: “[T]he judgment in question, for probation purposes, must be interpreted as imposing upon the defendant a sentence of four years and a probationary term for at least a like period of time.” (183 Cal.App.2d, at p. 482.) If any order that proclaimed an excessive probation term were void ab initio, the court would have declared the order in Blume void since it placed the defendant upon probation for five years despite the four-year statutoiy maximum.^[5] Similarly, in People v. Kuhlman (1948) 86 Cal.App.2d 566 , 567 [ 195 P.2d 53 , 196 P.2d 80 ], the court gave limited effect to a fine in excess of the statutoiy maximum. The trial court had imposed a $1,000 fine as a condition of probation despite a $200 statutory limit, and the Court of Appeal deemed the fine valid to the extent of $200.