Error and/or relief
On resentencing under section 1172.75, the court should have recalculated the defendant’s custody credits. Further, the abstract of judgment erroneously indicates that the court reimposed the restitution fine and suspended it. In fact, the court did not reimpose the fine, and thus this is clerical error that must be corrected.
First Holding:
The abstract of judgment erroneously includes a restitution fine. Section 1465.9(d) provides that 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.
In fact, the trial court did not reimpose the restitution fine, so this appears to have been a clerical error. Therefore, we remand so the court may correct the abstract of judgment.
(Gary note: The court did not cite any authority for its order directing correction, but there are many cases the court could have relied on. I have set forth several below the Penal Code section in the Authority section below.)
Authority:
PEN 1465.9(d)
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
Second Holding:
There was an error in calculating the defendant’s days of custody credit. Remanded for the court to calculate the correct number of days.
(Gary note: Again, the court cited no authority for this obvious solution, so I have set forth a few below.)
Authority:
PEN 2900.1
PEN 2900.5
People v. Buckhalter (2001) 26 Cal.4th 20, 33–34
People v. Dean (2024) 99 Cal.App.5th 391, 396–397