Error and/or relief
On resentencing under section 1172.75, the court did not orally reimpose the $10,000 originally imposed more than 10 years earlier. The abstract of judgment, however, reflects the $10,000 fine previously entered. The abstract of judgment must be corrected.
First Holding:
A written recording of a judgment, such as a minute order or abstract of judgment, may not modify the judgment, and where there is a discrepancy between the oral pronouncement of judgment and a written record, the oral pronouncement controls.
Authority:
People v. Zackery (2007) 147 Cal.App.4th 380, 385, 389
People v. Mitchell (2001) 26 Cal.4th 181, 185-186
Second Holding:
A restitution fine older than 10 years must be vacated, and no unpaid balance may be collected.
(Gary note: I “made up” that second holding, although it is a correct statement of the law. Appellate counsel raised the argument, but the appellate court concluded that it did not need to reach the issue. For whatever reason, the trial court did not reimpose a restitution fine at all. Thus, the sole problem was the incorrect abstract of judgment. Nonetheless, I thought it might be useful to remind readers of section 1465.9.)
Authority:
PEN 1465.9(d)