California Court of Appeal Aug 24, 2015 No. E061571Unpublished
Filed 8/24/15 P. v. Cervantez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061571
v. (Super.Ct.No. FSB1400714)
RICHARD PAUL CERVANTEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed with directions.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant Richard Paul Cervantez was charged with one count of attempted
murder, in violation of Penal Code, sections 664/187, subdivision (a),1 with special
allegations that he personally inflicted great bodily injury within the meaning of section
12022.7, subdivision (a), and that the offenses were committed for the benefit of, under
the direction of, or in association with a criminal street gang within the meaning of
It should go without saying that accuracy is essential in a document that prescribes the
execution of sentence to the Department of Corrections and Rehabilitation (CDCR) and
to which a criminal investigation and identification number is assigned for interagency
use. (§ 1213, subd. (a).)
For those persons committed to state prison, the CDCR relies on the information
contained in the abstract to determine the defendant’s release date, as well as to
determine where the defendant should be housed, based on a classification score
9
determined in reliance on the information about the conviction contained in the abstract.
(See Cal. Code of Regs., tit. 15, §§ 3075 [initial intake], 3077 [criteria for county
assessment program], 3078.3 [criteria for alternative custody program exclusion], 3269
[criteria considered for inmate housing assignments], 3375 [classification process],
3375.1 [inmate placement based on classification score].) Erroneous information on the
abstract of judgment can result in errors in the defendant’s classification score. With
thousands of inmates received by CDCR for processing and classification, misplaced
information on an abstract of judgment can result in errors or the unnecessary
consumption of time on the part of CDCR.
We agree that the clerk’s minutes and the abstract of judgment do not conform to
the oral sentence and direct the trial clerk to amend the abstract of judgment.
DISPOSITION
The convictions are affirmed. The superior court is directed to modify the
sentence as follows: (1) stay the three-year enhancement for great bodily injury under
section 12022.7, subdivision (a), pursuant to section 654; (2) reduce the amount of the
restitution fine to the statutory minimum of $240.00; and (3) amend the abstract of
judgment to reflect one prior conviction for a serious or violent felony within the
meaning of section 667, subdivision (a)(1), and four prior convictions for which
defendant served a prison sentence within the meaning of section 667.5, subdivision (b).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
10
RAMIREZ P. J.
We concur:
HOLLENHORST J.
CODRINGTON J.
11
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction but modified the sentence to stay a great bodily injury enhancement, reduce restitution fines to the statutory minimum applicable at the time of the offense, and correct clerical errors in the abstract of judgment.
Issues
Whether the trial court erred by imposing both a gang enhancement and a great bodily injury enhancement for the same conduct.
Whether the trial court erred by imposing restitution and parole revocation fines based on the statutory minimum at the time of sentencing rather than the time of the offense.
Whether the abstract of judgment contained clerical errors regarding the defendant's prior convictions.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“since two enhancements are being applied to the same conduct, section 1170.1, subdivision (g) directs that only the greatest of the enhancements be imposed.”
“It is well settled under California law that the prohibition against ex post facto laws applies to restitution fines.”
“We agree that the clerk’s minutes and the abstract of judgment do not conform to the oral sentence and direct the trial clerk to amend the abstract of judgment.”