Category Archives: Abstracts and Minutes

Abstracts and Minutes

Case 000662

Posted on by Gary McCurdy

Error and/or relief

We direct the court to correct the abstract of judgment to indicate the sentence was ordered to be served consecutively.

Holding:

The parties agree the trial court imposed one-third the middle term (i.e., one year) on count 4 for securities fraud but did not mark the appropriate box on the abstract of judgment with an “X.” We agree and will direct the clerk to correct the error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time]

Abstracts and Minutes

Case 000660

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be correct to reflect the crime of which the defendant was convicted.

Holding:

The abstract of judgment states, correctly, that the defendant was convicted of violating section 236, but it incorrectly describes this crime as kidnapping for ransom resulting in bodily harm or death. Section 236 actually refers to the crime of false imprisonment, and it was this offense for which the defendant was convicted. An abstract of judgment is not the judgment of conviction, and it is important for courts to correct elements of an abstract of judgment that differ from the court’s oral judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Abstracts and Minutes

Case 000650

Posted on by Gary McCurdy

Error and/or relief

The trial court, at resentencing, orally awarded the defendant credit for time served from his arrest to the date of resentencing, but those credits do not appear on the abstract of judgment. The abstract must be corrected.

First Holding:

[GARY Note: The court cited no authority for ordering that the abstract of judgment be corrected (probably because it is so obvious), but there is much authority that it could have cited, such as what I’ve laid out below.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

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

Abstracts and Minutes

Case 000648

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the minute order to accurately reflect that the defendant was committed under section Welfare and Institutions Code section 6500(c)(3) rather than under section 6500(c)(1) as shown in the minute order.

Holding:

A commitment under WIC 6500(c)(1), as erroneously reflected in the minute order, is for one year. A commitment under WIC 6500(c)(3), as ordered by the court, is for six months. Any variance between the oral pronouncement of judgment and the minute order or abstract of judgment is presumed to be clerical error, and the oral pronouncement controls. Courts have the authority to correct such clerical errors at any time.

Authority:

WIC 6500

People v. Mesa (1975) 14 Cal.3d 466, 471

People v. Mitchell (2001) 26 Cal.4th 181, 186–187

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000643

Posted on by Gary McCurdy

Error and/or relief

The defendant was resentenced under section 1172.75. The restitution fine must be vacated, as it is more than 10 years old. The abstract of judgment must be corrected to reflect the oral pronouncement of judgment accurately.

First Holding:

Effective January 1, 2025, the Legislature amended section 1465.9 to add subdivision (d), which states: “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 fine in this case appears to have been imposed at the original sentencing in 1994, and must be vacated.

Authority:

PEN 1469.5

Second Holding:

Though the abstract of judgment from 1994 does not reflect whether the trial court imposed the mandatory minimum restitution fine under section 1202.4(b), we presume, as the People argue, the court did. Thus, the superior court’s order imposing the restitution fine at the defendant’s resentencing in 2024 essentially reimposed the fine imposed in 1994, which section 1465.9 has now made unenforceable and uncollectible. We construe the superior court’s order as simply reimposing the original restitution fine, and the 10-year clock did not start anew.

Authority:

EVID 664 [It is presumed that official duty has been regularly performed]

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [we presume that the trial court knew the law and followed it in imposing a restitution fine under section 1202.4]

People v. Stowell (2003) 31 Cal.4th 1107, 1114 [a trial court is presumed to have been aware of and followed the applicable law]

People v. Salstrom (2025) 117 Cal.App.5th 596, review granted on another point, March 11, 2026, S295038

Third Holding:

After imposing the $300 restitution fine, the superior court stated: “$300 parole revocation fine, that is stayed pending successful—Well, I am going to strike that. There is no parole that’s going to be granted in this case.” As noted, the minute order and abstract of judgment indicate the court (1) imposed and stayed execution of a parole revocation fine under section 1202.45 and (2) imposed and struck “all financial obligations, excluding any actual victim restitution.” The reporter’s transcript of the resentencing hearing does not state the court made these rulings. The superior court must correct the minute order and abstract of judgment to reflect the oral pronouncement of judgment.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244 [Ordinarily, where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls]

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [The record of the oral pronouncement of the court controls over the clerk’s minute order]

People v. Portillo (2023) 91 Cal.App.5th 577, 603 [the oral pronouncement of sentence controls over a subsequently entered minute order]

Fourth Holding:

Courts may correct clerical errors at any time, and appellate courts . . . have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Jones (2012) 54 Cal.4th 1, 89

People v. Garcia (2024) 101 Cal.App.5th 848, 859

People v. Gobert (2023) 89 Cal.App.5th 676, 689 [we must correct the discrepancy by ordering the trial court to modify the minute order]

Abstracts and Minutes

Case 000628

Posted on by Gary McCurdy

Error and/or relief

GARY note: This is not a winning issue case, but is an example of an error in an abstract of judgment in which the abstract reflected a conviction less serious than actually sustained. While I doubt it was helpful to the defendant in this instance, I think it still provides yet another lesson in the importance of reviewing abstracts of judgment.

Holding:

The trial court’s minutes and abstract of judgment erroneously reflect that the defendant was convicted and sentenced on count 5 for the dismissed charge of false imprisonment by violence. The record indicates that the trial court struck the false imprisonment charge before trial and that the defendant was charged with and convicted of forcible rape in count 5, and that he was sentenced accordingly. The abstract of judgment must be corrected to reflect a conviction of rape by force or fear on count 5.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89

People v. Mesa (1975) 14 Cal.3d 466, 471

Abstracts and Minutes

Case 000619

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be modified to reflect a four-year arson enhancement under section 451.1, subdivision (a)(5)—instead of subdivision (a)(1).

Holding:

The abstract reflects that the four-year arson enhancement was imposed under section 451.1(a)(1). The record demonstrates, however, that this enhancement was charged and proven based on appellant’s use of a device designed to accelerate the fire. That enhancement falls within subdivision (a)(5) of that statute. As such, we agree with appellant’s counsel that it is appropriate to order the abstract of judgment amended to reflect the proper subdivision.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time]

Abstracts and Minutes, Elements of crime, Fines and fees, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000606

Posted on by Gary McCurdy

Error and/or relief

The jury found the defendant guilty of two felonies (maintaining a place for the purpose of using, selling, or giving away a controlled substance and felon in position of ammunition) and several misdemeanors (possession of cocaine, cultivating more than six marijuana plants, and possession of marijuana).

We conclude that two felony convictions must be reversed, the fee and assessment imposed for the possession of more than 28.5 grams of marijuana conviction must be reversed, either the possession of marijuana misdemeanor or the cultivating more than six marijuana plants misdemeanor must be stayed pursuant to section 654, and the four clerical errors in the judgment must be corrected.

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Appellate courts presume in support of the judgment every fact that the trier of fact could reasonably deduce from the evidence. Appellate courts also properly consider erroneously admitted evidence, notwithstanding the erroneous admission. Appellate courts do not resolve credibility issues or evidentiary conflicts. A judgment will not be reversed for insufficiency of the evidence merely because the circumstances may also be reasonably reconciled with a conclusion contrary to the judgment.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Oyler (2025) 17 Cal.5th 756, 820

People v. Jackson (2014) 58 Cal.4th 724, 749

Second Holding:

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance as identified in particular sections of the Health and Safety Code shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Because of the disjunctive “or,” section 11366 does not require that the place be maintained for the purpose of selling; it can be violated without selling, merely by providing a place for drug abusers to gather and share their experience.

Section 11366 proscribes continuously selling, giving away, or using a controlled substance; a single or isolated instance of this forbidden conduct is insufficient. Further, section 11366 is violated by selling or giving away to others, or allowing others to use, a controlled substance in a place maintained or opened for that purpose; it is not violated by an individual’s repeated personal use of a controlled substance at his home.

Authority:

HSC 11366

People v. Franco (2009) 180 Cal.App.4th 713, 716, 718

People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 and fn. 2

People v. Green (1988) 200 Cal.App.3d 538, 544

People v. Shoals (1992) 8 Cal.App.4th 475, 490, 492

Third Holding:

In determining whether a place is opened or maintained for the purpose of selling, giving away, or using a controlled substance, the trier of fact should consider the surrounding circumstances, including: the quantity of any controlled substance discovered; the character of the place opened or maintained; how the place is fitted up; whether other individuals visited the place in unusual numbers or at unusual times; whether other individuals who were under the influence of a controlled substance were found at the place; whether lookouts were posted near or at the place; whether a password or passcode was needed for entry into the place; any pertinent statements by the defendant or those found at the premises; and whether any drug paraphernalia or drug residue was found in the place.

However, the quantity of controlled substance discovered at a place is alone insufficient to show that the place was maintained or opened for the purpose of continuously selling, giving away, or using a controlled substance.

Authority:

People v. Franco (2009) 180 Cal.App.4th 713, 726

People v. Hawkins (2004) 124 Cal.App.4th 675, 683

People v. Shoals (1992) 8 Cal.App.4th 475, 491-492

People v. Cannon (1957) 148 Cal.App.2d 163, 168

Fourth Holding:

Health and Safety Code section 11366 prohibits opening or maintaining a place for the purpose of selling, using, or giving away a controlled substance; it does not prohibit opening or maintaining a place for the purpose of growing or cultivating a controlled substance/marijuana. (Cf. sec. 11366 with 11358 [prohibiting the cultivation of marijuana]; 11366.5 [prohibiting individuals from making available a premises for the manufacture of a controlled substance]; cf. also Dowl [describing separate criminal provisions that are exempt from prosecution pursuant to the Medical Marijuana Program of sec. 11362.7 et seq.]

Authority:

People v. Dowl (2013) 57 Cal.4th 1079, 1086

Fifth Holding:

Section 11366 requires that a controlled substance be sold, used, or given away at the place maintained for such a purpose. Section 11366 simply does not address controlled substances that are sold, used, or given away at a location other than the place, even if the controlled substance is produced at the place. Accordingly, Shoals and related considerations do not support the conclusion that the instant property was used for the purpose of continuously selling, using, or giving away marijuana to others.

Authority:

HSC 11366

People v. Shoals (1992) 8 Cal.App.4th 475, 491 [The prosecution must prove that appellant opened or maintained the hotel room for the purpose of selling the cocaine base.]

People v. Holland (1958) 158 Cal.App.2d 583, 588 [There is no evidence that this barbecue stand was opened for the prohibited purpose.]

Sixth Holding:

A conviction cannot be constitutionally sustained on the basis of a theory that was not actually presented to the jury. Here, the instructions informed the jury that the controlled substance at issue was cannabis; cocaine was not mentioned. Therefore, the defendant’s conviction cannot be sustained based on the cocaine discovered at the property. In sum, the evidence shows the property was used to grow, cultivate, and process marijuana, but that is all. Substantial evidence does not support the section 11366 conviction because there is insufficient evidence that the defendant maintained the property for the purpose of continuously selling, using, or giving away marijuana at the property.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 314

Cole v. Arkansas (1948) 333 U.S. 196, 202

People v. Kunkin (1973) 9 Cal.3d 245, 251

People v. Zemek (2023) 93 Cal.App.5th 313, 340

People v. Garcia (2014) 224 Cal.App.4th 519, 525

Seventh Holding:

Substantial evidence does not support the defendant’s conviction for felon in possession of ammunition. His prior felony under section 11359 was reduced to a misdemeanor and sealed. As a result of the resentencing and sealing, the prior felony is no longer a felony and cannot be used to support the defendant’s conviction. Because he has no other prior felony convictions, conviction on that count is unsupported and must be reversed.

In 2016, voters approved Proposition 64, which, among other things, generally reduced marijuana-related crimes from felonies to misdemeanors, including the offense of possession under section 11359. Proposition 64 also added section 11361.8, which provides a mechanism to obtain relief for those currently serving a sentence, or for those who had completed a sentence, for a marijuana offense affected by Proposition 64. For those qualifying defendants who have completed a sentence, the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.

Further, the Legislature has provided that a conviction that has been ordered sealed pursuant to section 11361.8 is deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. The parties agree that, because the defendant had his prior felony conviction reduced to a misdemeanor under Proposition 64 and sealed, he was no longer a felon in possession of ammunition, and the count must be reversed.

Authority:

HSC 11361.8

HSC 11361.9

People v. Smit (2018) 24 Cal.App.5th 596, 599, 600

People v. Jessup (2020) 50 Cal.App.5th 83, 88

People v. Saelee (2018) 28 Cal.App.5th 744, 751

People v. Taylor (2021) 60 Cal.App.5th 115, 120, fn. 3.

Eighth Holding:

Penal Code section 654 provides in part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Section 654 may apply to an indivisible course of criminal conduct involving violations of different statutes, where the defendant commits the violations with a single intent and objective. It has been held that section 654 applies to prevent a defendant from being punished for both possession of marijuana and cultivation of marijuana where the possession was merely incidental to the cultivation.

A court’s implicit or express finding that a defendant harbored different intents and objectives for purposes of section 654 is reviewed for substantial evidence. The parties agree, and we concur, that substantial evidence does not support the trial court’s implicit finding that the defendant harbored different intents and objectives with respect to counts 6 and 7, cultivation of marijuana and possession of marijuana. The court must stay the sentence on one of the two counts.

Authority:

PEN 654

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Vasquez (2020) 44 Cal.App.5th 732, 736–737

People v. McDaniel (1957) 154 Cal.App.2d 475, 485–486

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Ninth Holding:

Health and Safety Code section 11372.7–which imposes a drug program fee for violation of its chapter–expressly excludes section 11357(b), possession of more than an ounce of marijuna, from its application. Thus, the trial court erred in imposing the fee under that that section, and it must be stricken, along with other fees that came into play based on that improperly imposed assessment.

Authority:

HSC 11372.7(e)

Tenth Holding:

The minute order contains several errors that must be corrected: (1) with respect to count 2 at page 3, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (2) with respect to count 2 at page 4, the minute order identifies the amount of penalty assessments as $3,210 instead of $310; (3) with respect to count 1 at page 5, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (4) with respect to count 5 at pages 5 and 6, all fees and penalties are improper because they were not imposed as part of the oral pronouncement of sentence.

A trial court’s oral pronouncement of sentence constitutes the judgment in a criminal case, and to the extent there is a discrepancy between the oral pronouncement and a minute order or abstract of judgment, the oral pronouncement will control. Reviewing courts on appeal may correct any discrepancy that exists between a trial court’s oral pronouncement of sentence and a minute order or abstract of judgment.

Authority:

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

Abstracts and Minutes, Fines and fees, Sentencing

Case 000596

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court ordered that the original fines and fees imposed nearly 30 years earlier would remain the same. They are ordered stricken.

First Holding:

Effective January 1, 2025, section 1465.9 was amended to provide 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. Accordingly, the portion of the judgment imposing the restitution fine is vacated.

Authority:

PEN 1465.9

Second Holding:

The $70 fee imposed for AIDS education must be vacated. The original sentencing court imposed this fee pursuant to section 264(b), which states in relevant part: The judge may assess a fine not to exceed $70 against a person who violates Section 261 or former Section 262 with the proceeds of this fine to be used in accordance with section 1463.23. Section 1463.23, however, was repealed effective January 1, 2018. The provision authorizing the AIDS education fee (sec. 264, subd. (b)) was impliedly repealed in 2018, when the referenced statute (sec. 1463.23) was actually repealed, since it is no longer possible for the proceeds of this fine to be used in accordance with section 1463.23. Accordingly, the AIDS education fee is vacated.

Authority:

Repeal of PEN 1463.23

Third Holding:

The abstract of judgment filed in 2024 does not reflect the restitution fine or the AIDS education fee. We further note that the sentencing minute order similarly does not refer to any fines and fees imposed. Nevertheless, it is well established that where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Accordingly, the clerk of the superior court is ordered to prepare an amended abstract of judgment and an amended sentencing minute order reflecting that the previously imposed restitution fine and AIDS education fee are vacated.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

Abstracts and Minutes, Appellate Principles

Case 000593

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment listed fines and fees that were not imposed by the court. It must be corrected.

Holding:

The parties agree that we should order the trial court to correct its minutes and prepare an amended abstract of judgment that accurately reflects that the trial court suspended and never imposed any fines and fees other than victim restitution. We thus instruct the trial court to issue a corrected minute order and an amended abstract of judgment indicating that the only monetary obligation imposed on the defendant is the amount ordered for victim restitution.

(Gary note:  The court did not cite authority for its power to order correction of an abstract of judgment, so in addition to the court’s reference to Lynex,  I have listed several cases it could have relied on.)

Authority:

In re Lynex (2026) 118 Cal.App.5th 756, 769 [An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case]

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

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000584

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the restitution fine should not have been reimposed. The abstract of judgment reflects a parole revocation restitution fine that was not imposed. We will modify the judgment to vacate the restitution fine and direct that the trial court prepare an amended abstract of judgment removing the restitution fine and parole revocation restitution fine.

First Holding:

On resentencing, the court reimposed the original $5000 restitution fine, over the defendant’s objection that he had already paid it. Effective January 1, 2025, 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. Here, the trial court reimposed defendant’s original fines, including a $5,000 restitution fine, 30 years after they were originally imposed. Therefore, any unpaid portion remaining on the $5,000 restitution fine must be vacated. The defendant advised the trial court that he had paid it in full, but regardless, any order regarding any remaining unpaid balance shall be vacated.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted Mar. 11, 2026, S295038 on another point

Second Holding:

The abstract of judgment lists a parole revocation fine of $5,000, but it was not ordered by the court. The abstract must be corrected accordingly.

[GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some below.]

Authority:

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