People v. McCormack CA1/3

Filed 3/14/22 P. v. McCormack CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A162734

v. (Mendocino County Super. Ct. DEREK STEVEN MCCORMACK, No. SCUK-CRCR-19-32230) Defendant and Appellant.

MEMORANDUM OPINION1 Derek Steven McCormack pled no contest to arson of an inhabited dwelling and admitted an enhancement that the fire was set during the Governor’s declaration of a state of emergency (§§ 451, subd. (b), 454, subd. (b)). In April 2021, the trial court sentenced McCormack to nine years in state prison pursuant to the negotiated disposition. The court imposed a $312 presentence report fee pursuant to former section 1203.1b. McCormack raises two claims on appeal. First, he argues the abstract of judgment erroneously omits the state of emergency enhancement attached

We resolve this case by memorandum opinion pursuant to California 1

Standards of Judicial Administration, section 8.1. Undesignated statutory references are to the Penal Code. In reciting the sentence, we rely on the court’s oral pronouncement of judgment. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)

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to the arson conviction. Second, he argues the presentence report fee must be stricken in light of Assembly Bill No. 1869 (2019–2020 Reg. Sess.) which, as relevant here, makes the unpaid balance of that fee unenforceable and uncollectible as of July 1, 2021, and requires that any portion of the judgment imposing such a fee be vacated. (§ 1465.9, subd. (a); People v. Clark (2021) 67 Cal.App.5th 248, 259–260.) The Attorney General agrees the abstract of judgment must be corrected to align with the trial court’s oral pronouncement of judgment and current law. We accept the Attorney General’s concession. DISPOSITION The judgment of conviction is affirmed. The balance of the $312 presentence report fee (former § 1203.1b) unpaid as of July 1, 2021, is vacated. The abstract of judgment must be modified to reflect that McCormack was sentenced on his section 451, subdivision (b) conviction, and his section 454, subdivision (b) enhancement. The trial court is directed to amend the abstract of judgment to reflect these modifications and to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.