We strike the domestic violence probation fee. The defendant was sentenced to prison.
The domestic violation probation fee is imposed only when a defendant is granted probation. It is not applicable when the defendant is sentenced to prison. the unauthorized fee must be stricken.
PEN 1203.97(a)(5)
People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520
People v. Scott (1994) 9 Cal.4th 331, 354
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.
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.
People v. Jones (2012) 54 Cal.4th 1, 89
We modify the judgment to vacate any remaining balance on defendant’s restitution fine imposed under section 1202.4(b).
Effective January 1, 2025, Assembly Bill No. 1186 (2023–2024 Reg. Sess.) (Stats. 2024, ch. 805, § 1) amended section 1465.9 by adding subdivision (d), which provides: 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.
PEN 1465.9(d)
Defendant’s appeal from the trial court’s resentencing order causes his judgment to remain nonfinal. Therefore, he is entitled to any applicable ameliorative benefits under section 1465.9.
In re Estrada (1965) 63 Cal.2d 740, 745
People v. Hanson (2000) 23 Cal.4th 355, 362 [restitution fines qualify as punishment]
The trial court resentenced defendant the defendant pursuant to Penal Code section 1172.75. The court failed to award credit for the time the defendant served in custody. The court imposed repealed fees. The resentencing minute order should be clarified to reflect the proper order in which the defendant must serve the terms comprising his sentence. The matter is remanded to the trial court with directions to recalculate defendant’s custody credits and to prepare a corrected abstract of judgment and minute order as indicated in this opinion and forward a certified copy of the corrected abstract and minute order to the Department of Corrections and Rehabilitation.
Were a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts. This means a court resentencing a defendant must credit the defendant with all actual days he had spent in custody, whether in jail or prison, up to that time. The updated total of credits must then be added to the abstract of judgment.
PC 2900.1
PC 2900.5
People v. Buckhalter (2001) 26 Cal.4th 20, 37
People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125, 1129-1130
Couzens et al., Sentencing California Crimes (The Rutter Group Aug. 2025 update) secs. 15:15, 15:20, 15:24, 26:6
The trial court was not authorized to impose fees under former Government Code section 29550.2. (Former Gov. Code, sec. 29550.2.) The Legislature repealed that statute effective July 1, 2021. (Stats. 2020, ch. 92, sec. 25.) Even if Government Code section 29550.2 were still in effect, the Legislature has declared such fees unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. (Gov. Code, sec. 6111(a).) Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.
GOV 6111(a)
Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first. The minute order for the resentencing hearing states that the determinate is to be served consecutive to the indeterminate sentence. The minute order must be corrected.
[Gary note: The court did not cite any authority for its order to correct the minute order. But there is much authority allowing a court to correct errors in abstracts of judgments and minute orders. I have set forth a few below.]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
The defendant was sentenced to state prison after pleading no contest to robbery and injury a girlfriend. The trial court improperly imposed a domestic violence fee. We strike the fee.
A domestic violence fee is only authorized when a defendant is granted probation.
PEN 1203.097