People v. Gallon CA4/1

California Court of Appeal · D078357 · 2021-12-28 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN395782
Trial judge: Sim Von Kalinowski
Outcome: affirmed — Affirmed and remanded with directions.
Area: criminal
Panel: O'Rourke (author), Joan K. Irion, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:57Z · confidence high

The trial court sentenced the defendant to three years of formal probation with specific conditions and fines, but the written order failed to reflect the court's oral pronouncements striking certain conditions and modifying payment terms. The Court of Appeal affirmed the judgment but remanded with directions to correct the written order to match the oral pronouncement, vacate certain fines under new legislation, and reduce the probation term to two years.

Ruling reviewed	Standard	The court	The model
Written probation order discrepancy regarding struck conditions (6(n), 14(a), 14(b)) and fine payment terms “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.”	de novo	error	agree with court The appellate court correctly applied the well-established principle that the oral pronouncement of sentence controls over the written minute order when there is a discrepancy. The trial court's failure to reflect the oral rulings in the written order was a clerical error that did not affect the validity of the judgment itself, but required correction on remand. The court's reliance on People v. Zackery and People v. Mesa is appropriate for this proposition.
Retroactive application of Assembly Bill No. 1869 to vacate unpaid fines and fees “under the plain language of Government Code section 6111, subdivision(a), the unpaid balance of the criminal justice administration fee is unenforceable and uncollectible, and the portion of the judgment imposing such costs must be vacated.”	de novo	error	agree with court The court correctly interpreted the plain language of the newly enacted statutes (Gov. Code § 6111 and Pen. Code § 1465.9) which explicitly mandate that unpaid balances of specific costs be unenforceable and uncollectible, and that the judgment portions imposing them be vacated. The application of these statutes to the defendant's case is a matter of statutory interpretation reviewed de novo, and the court's conclusion aligns with the legislative intent to eliminate these financial burdens.
Retroactive application of Assembly Bill No. 1950 to reduce probation term to two years “Under Sims, the new law applies to this case, which was not final as of January 1, 2021.”	de novo	error	agree with court The court correctly applied the holding in People v. Sims, which relied on In re Estrada, to determine that the ameliorative change in law limiting felony probation terms to two years applies retroactively to cases not final as of the effective date. Since the defendant's case was not final on January 1, 2021, the reduction of the probation term from three years to two years is legally required.

Authorities

relied: People v. Scott (2012) 203 Cal.App.4th 1303 — In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment.
relied: People v. Zackery (2007) 147 Cal.App.4th 380 — Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.
relied: People v. Mesa (1975) 14 Cal.3d 466 — Rendition of judgment is an oral pronouncement; the record of the oral pronouncement of the court controls over the clerk’s minute order and abstract of judgment.
relied: People v. Lopez-Vinck (2021) 68 Cal.App.5th 945 — Under the plain language of Government Code section 6111, subdivision(a), the unpaid balance of the criminal justice administration fee is unenforceable and uncollectible, and the portion of the judgment imposing such costs must be vacated.
relied: People v. Sims (2021) 59 Cal.App.5th 943 — Assembly Bill No. 1950’s limitation on the maximum duration of felony probation terms constitutes an ameliorative change to the criminal law that applies retroactively to cases that were not reduced to final judgment as of the new law’s effective date.
relied: In re Estrada (1965) 63 Cal.2d 740 — Ameliorative changes to the criminal law apply retroactively to cases that have not become final.

The appellate opinion: sound — The opinion is sound because it correctly applies established California law regarding the primacy of oral pronouncements over written orders and the retroactive application of ameliorative statutory changes. The court accurately interprets the specific provisions of Assembly Bills 1869 and 1950 and applies them to the facts of the case without error.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

The trial court suspended a three-year sentence, placed Gallon on three years of formal probation after her guilty plea to grand theft, orally struck three probation conditions and set a $25 monthly payment schedule, and imposed fees under Government Code section 29550.1 and Penal Code sections 1203.1b and 987.8. On appeal, with the People conceding, the Court of Appeal affirmed the judgment but remanded with directions to conform the written order to the oral pronouncement, vacate any fee balances unpaid as of July 1, 2021 under Assembly Bill No. 1869, and reduce the probation term to two years under Assembly Bill No. 1950.

Ruling reviewed	Standard	The court	The model
Written probation order that failed to reflect the oral pronouncement striking conditions 6(n), 14(a) and 14(b) and setting $25 monthly payments beginning six months after release “The court agreed and struck those three conditions; however, that is not reflected in the court’s written order.”	de novo	error (procedure)	agree with court The discrepancy between the oral pronouncement and the written order is a clerical error correctable at any time; the oral pronouncement controls under Mesa, Zackery and Scott. The People conceded and the court properly ordered the written order corrected.
Imposition of criminal justice administration fee (Gov. Code, § 29550.1), presentence investigation costs (§ 1203.1b), and court-appointed attorney costs (§ 987.8) “We therefore vacate any unpaid balance of the costs imposed by the court under Government Code section 6111, subdivision (a) and Penal Code section 1465.9 as of July 1, 2021.”	de novo	error (other)	agree with court The fees were lawful when imposed in October 2020; the appellate relief flows from Assembly Bill No. 1869, which by its plain terms (Gov. Code, § 6111; Pen. Code, § 1465.9) makes balances unpaid as of July 1, 2021 unenforceable and requires vacatur of that portion of the judgment. The court followed its own decision in Lopez-Vinck and correctly limited relief to the unpaid balance rather than striking the fees entirely as Gallon requested, though it did not expressly explain why it declined the broader relief.
Three-year term of formal probation “Under Sims, the new law applies to this case, which was not final as of January 1, 2021.”	de novo	error (statutory interpretation)	agree with court Assembly Bill No. 1950 amended section 1203.1 to cap most felony probation terms at two years, and under Estrada and Sims the ameliorative change applies retroactively to nonfinal cases. Gallon's case was not final on January 1, 2021, and grand theft is not an excepted offense, so reduction to two years was required; the People conceded.

Authorities

relied: People v. Scott (2012) 203 Cal.App.4th 1303 — In a criminal case the oral pronouncement of sentence constitutes the judgment.
relied: People v. Zackery (2007) 147 Cal.App.4th 380 — Where the oral pronouncement of judgment conflicts with the minute order or abstract, the oral pronouncement controls.
relied: People v. Mesa (1975) 14 Cal.3d 466 — Rendition of judgment is an oral pronouncement; the record of the oral pronouncement controls over the clerk's minute order and abstract of judgment.
relied: People v. Lopez-Vinck (2021) 68 Cal.App.5th 945 — Under Government Code section 6111, the unpaid balance of the criminal justice administration fee as of July 1, 2021 is unenforceable and uncollectible and that portion of the judgment must be vacated.
relied: People v. Sims (2021) 59 Cal.App.5th 943 — Assembly Bill No. 1950's two-year cap on felony probation is an ameliorative change that applies retroactively to cases not final as of January 1, 2021.
relied: In re Estrada (1965) 63 Cal.2d 740 — Ameliorative changes in criminal law apply retroactively to all cases not yet final absent a contrary legislative intent.

The appellate opinion: sound with gaps — The opinion resolves three conceded issues with the correct controlling authorities: the oral-pronouncement rule for clerical corrections, the plain text of Government Code section 6111 and Penal Code section 1465.9 as construed in Lopez-Vinck, and Estrada/Sims retroactivity for Assembly Bill No. 1950. It does not expressly address why Gallon's request to strike the fees entirely was rejected in favor of vacating only the unpaid balance, and contains a minor typographical reference to 'section 9878,' but the result is fully defensible.

How this analysis was made · dispute it

Opinion

Filed 12/28/21 P. v. Gallon CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078357

Plaintiff and Respondent, v. (Super. Ct. No. SCN395782)

TONI GALLON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed and remanded with directions. Matthew A. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent. Toni Gallon pleaded guilty to grand theft of personal property (Pen.

Code,1 § 487, subd. (a)), admitting she unlawfully took another person’s 1 Undesignated statutory references are to the Penal Code. property valued at more than $950. In exchange, the People dismissed other charges against her. Gallon contends and the People concede that (1) the order of formal probation must be modified because it does not reflect the court’s oral pronouncement; and (2) she is entitled to retroactively benefit from Assembly Bill Nos. 1869 and 1950. We affirm the judgment and remand with directions set forth below. FACTUAL AND PROCEDURAL BACKGROUND At Gallon’s October 2020 sentencing hearing, the trial court suspended execution of a three-year sentence and granted Gallon three years formal probation, ordering her to serve 180 days in custody. Defense counsel objected to probation condition 6(n), requiring Gallon to submit to electronic search of her devices, and conditions 14(a), and 14(b), which require her to obtain substance abuse assessment and treatment. Counsel argued that no nexus existed between those conditions and Gallon’s crimes. The court agreed and struck those three conditions; however, that is not reflected in the court’s written order. Further, the court stated Gallon would no longer have to pay an $820 fine under section 1465.7, subdivision (a). However, it ruled she was required to pay other fines set forth in the probation report (including a $154 criminal justice administration fee under Government Code section 29550.1, presentence investigation costs under section 1203.1b, and court-appointed attorney costs under section 9878 in monthly installments of $25, beginning six months after her release from custody. This again is not reflected in the court’s written order, which instead states that the $820 penalty is imposed, and that Gallon is required to pay $50 monthly fines, fees and assessments beginning in December 2020.

2 DISCUSSION I. The Written Probation Order We accept the People’s concession that the written order granting formal probation should be amended to strike probation conditions 6(n), 14(a) and 14(b) to conform to the court’s oral pronouncement. “In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment.” (People v. Scott (2012) 203 Cal.App.4th 1303, 1324.) “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385; People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement; the record of the oral pronouncement of the court controls over the clerk’s minute order and abstract of judgment].) The written order should likewise be amended to reflect that the court ordered Gallon to pay $25 monthly toward the imposed fines, fees and assessments beginning six months after her release from local custody. II. Assembly Bill No. 1869 At the sentencing hearing, the trial court imposed fines, fees and assessments “as stated in the probation report,” including a $154 criminal justice administration fee under Government Code section 29550.1, presentence investigation costs under Penal Code section 1203.1b, and court- appointed attorney costs under Penal Code section 987.8. After the sentencing hearing, the Governor signed into law Assembly Bill No. 1869, which effective July 1, 2021, eliminated many fines, fees, and assessments that courts imposed under a range of statutes. (Assem. Bill No. 1869 (2019- 2020 Reg. Sess.) §§ 2, 62.)

3 Gallon contends that under Assembly Bill No. 1869, this court should strike the criminal justice administration fee, the repayment of the presentence investigation costs under section 1203.1b, and the cost of court- appointed counsel under section 987.8. Among other provisions, Assembly Bill No. 1869 added Government Code section 6111, which provides that “the unpaid balance of any court- imposed costs pursuant to [Government Code] Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).) Assembly Bill No. 1869 also added section 1465.9, subdivision (a) to the Penal Code: “On and after July 1, 2021, the balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 62.) As this court held in People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 950, under the plain language of Government Code section 6111, subdivision(a), the unpaid balance of the criminal justice administration fee is unenforceable and uncollectible, and the portion of the judgment imposing such costs must be vacated. (Gov. Code, § 6111, subd. (a).) We therefore vacate any unpaid balance of the costs imposed by the court under Government Code section 6111, subdivision (a) and Penal Code section 1465.9 as of July 1, 2021.

4 III. Assembly Bill No. 1950 We accept the People’s concession that Gallon is entitled to the benefit of Assembly Bill No. 1950, which the Governor signed into law on September 30, 2020. (Stats. 2020, ch. 328, § 2.) Assembly Bill No. 1950 amended section 1203.1 to limit felony probation terms to no longer than two years, except for certain offenses not relevant here. (See § 1203.1, subd. (m)(1).) The People acknowledge that this court has previously held that Assembly Bill No. 1950 applies retroactively to cases that were not final as of its January 1, 2021 effective date. (See People v. Sims (2021) 59 Cal.App.5th 943 [concluding that under In re Estrada (1965) 63 Cal.2d 740, Assembly Bill No. 1950’s “limitation on the maximum duration of felony probation terms constitutes an ameliorative change to the criminal law that applies retroactively to cases that were not reduced to final judgment as of the new law’s effective date”].) Under Sims, the new law applies to this case, which was not final as of January 1, 2021. We remand the matter to the trial court to correct the minute order governing the length and terms of probation to reflect a two-year term of formal probation.

5 DISPOSITION We affirm the judgment. On remand, the trial court is directed to correct the minute order to reflect that probation conditions 6(n), 14(a) and 14(b) are stricken; Gallon is to pay her fines, fees and assessments in $25 monthly installments beginning six months after her release from local custody; under Government Code section 6111 and Penal Code section 1465.9, any portion of money imposed that is unpaid as of July 1, 2021, is vacated; and Gallon’s probation term is reduced to two years. The court is to notify the San Diego County Department of Probation of these changes.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DO, J.

Cites, in this corpus

People v. Scott No. H034764 · 2012-02-28
People v. Zackery C051431 · 2007-02-01
People v. Mesa Crim. 17748 · 1975-05-29
In Re Estrada Crim. 8524 · 1965-12-23