The abstract of judgment incorrectly states that the crime was committed “by force.” The abstract must be corrected to remove those words.
We order correction of the clerical error in the abstract of judgment.
People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical errors in an abstract of judgment may be corrected at any time]
The trial court erred by failing to recalculate his custody credits and the amended abstract of judgment reflects the incorrect amount of conduct credit. The abstract of judgment must be amended to accurately reflect defendant’s custody credits and his restitution fine must be vacated due to recent amendments to section 1465.9.
The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.
PEN 2900.1
PEN 2900.5
People v. Buckhalter (2001) 26 Cal.4th 20, 37
In cases where there is no factual dispute as to the dates of custody and the calculation is merely arithmetical, the defendant should not be deprived of credit to which he or she is entitled merely because trial counsel made a mistake.
People v. Fares (1993) 16 Cal.App.4th 954, 959
People v. Jones (2000) 82 Cal.App.4th 485, 493
The abstract of judgment reflects that the conduct credit days ordered at the original sentencing hearing was 40 days instead of the 70 days actually granted. The abstract must be corrected to reflect the 70 days pre-sentence conduct credit.
People v. Hernandez (2024) 103 Cal.App.5th 981, 993
People v. Boyd (2024) 103 Cal.App.5th 56, 74–75
Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years must be vacated.
Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. The restitution fine was originally imposed in 2007, and defendant was resentenced over 18 years later. We therefore vacate the fine.
PEN 1465.9(d)
In re Mattison (2025) 115 Cal.App.5th 1062, 1066
The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.
The Legislature enacted Penal Code sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.
One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.
And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.
PEN 1001.36(b)(1) and (b)(2)
Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400
Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.
The court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
Eligibility no longer turned on findings to the court’s satisfaction. The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise.
And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.
PEN 1001.35(a)
PEN 1001.36(b)
Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80
People v. Harlow (2025) 113 Cal.App.5th 485, 490
Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891
People v. Cabalar (2025) 117 Cal.App.5th 41, 52
Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688
Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.
PEN 1001.36(c)
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401
We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, substantial evidence requires evidence and not mere speculation.
People v. Moine (2021) 62 Cal.App.5th 440, 449
People v. Ramon (2009) 175 Cal.App.4th 843, 851
In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.
In this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.
(Gary note: The opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)
Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402
The abstract of judgment must be amended to show that the restitution fine was vacated and the trial court security fee was stayed. We also order corrections on the minute order from the resentencing hearing.
At the resentencing hearing under section 1172.75, the court suspended or stayed any unpaid amounts of the previously imposed court fees and the restitution fine. In contrast, the abstract of judgment filed after the resentencing hearing erroneously showed the trial court imposed the restitution fine of $10,000 and the court security fee of $20.
The abstract of judgment must be corrected to reflect the oral pronouncement. Further, the minute order reflects that the defendant was convicted of murder in the second degree, whereas he was actually convicted of murder in the first degree.
The minute order also must be amended.
People v. Mitchell (2001) 26 Cal.4th 181, 185
Further, although the trial court intended to stay or suspend any unpaid balance of the restitution fine, that fine must be vacated because it was imposed more than 10 years earlier and the abstract of judgment must be amended to reflect that it has been vacated.
PEN 1465.9(d)
The trial court erred by imposing two concurrent sentences for firearm convictions based on the same, single act of possessing a firearm. We remand for resentencing.
The trial court imposed a middle term of four years for possession of a firearm. It then imposed concurrent sentences for carrying a loaded firearm and carrying a concealed firearm in a vehicle, all committed while having a prior felony conviction.
This sentence violates section 654’s prohibition of multiple punishment for a single act or omission, or an indivisible course of conduct. All three convictions were based on a single possession or carrying of a single firearm on a single occasion and may be punished only once under section 654.
PEN 654(a) [an act punishable in different ways by different provisions of law shall not be punished under more than one provision]
People v. Deloza (1998) 18 Cal.4th 585, 591
People v. Jones (2012) 54 Cal.4th 350, 357
That the concurrent sentences imposed for counts 7 and 8 are served simultaneously with the sentence for count 6 is inconsequential. A concurrent sentence is still a punishment subject to section 654. In these circumstances, the trial court was required to impose one sentence and to stay the execution of the duplicative sentence.
People v. Duff (2010) 50 Cal.4th 787, 796
People v. Mani (2022) 74 Cal.App.5th 343, 380
(Gary note: The opinion did not describe count 3 or what the oral pronouncement of sentence was for that count, but in the opinion’s disposition paragraph, the court included the following sentence: “The clerk of the superior court is also directed to correct the abstract of judgment to reflect the orally pronounced sentence on count 3.”
(That is the only reference to the abstract in the opinion. I include this as a “holding” because it represents yet another instance of where an abstract of judgment was apparently incorrect. The cases I have listed below are some of several cases that the court could have chosen to cite as authority for its order.
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Delgado (2008) 43 Cal.4th 1059, 1070
People v. Leon (2020) 8 Cal.5th 831, 855
In re Black (1967) 66 Cal.2d 881, 890
People v. Zackery (2007) 147 Cal.App.4th 380, 385
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2