Tag Archives: Ability to pay

Abstracts and Minutes, Fines and fees

Case: 000236

Posted on by Gary McCurdy

Error and/or relief

The abstracts of judgment for all of the defendants reflect assessments that were not orally pronounced (in fact, the trial court had found that the defendants did not have the ability to pay the fees) and must be stricken. The People agree. We agree with the parties and will order those assessments stricken from the abstract of judgment.

Holding:

It is well settled that an abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, the court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.

Authority:

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

Abstracts and Minutes, Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case: 000129

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.

First Holding:

The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees.  [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so, and I have listed some authorities below.]

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Third Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the authorities I have set forth below.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Fines and fees, Sixth Amendment, Standard of review

Case: 000127

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a jury trial on two of the aggravating factors the trial court found to be true in the present case. He entitled to resentencing due to prejudicial error, and we remand the matter for that purpose.

First Holding:

The trial court erroneously imposed the upper term by relying on its own determination that the defendant’s two prior convictions were numerous. The defendant was entitled to have a jury decide that issue beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742-743

People v. Wiley (2025) 17 Cal.5th 1069, 1076

People v. Berry (1981) 117 Cal.App.3d 184, 191 [two prior convictions cannot be numerous]

Second Holding:

In assessing a defendant’s ability to pay, a court may consider a defendant’s past income-earning capacity. Moreover, a court may consider whether a defendant has the ability to satisfy the fine and assessments through prison wages and future earnings after release from custody.

Authority:

People v. Johnson (2019) 35 Cal.App.5th 134, 139

People v. Aviles (2019) 39 Cal.App.5th 1055, 1076