Filed 8/13/26 P. v. Burton CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B338711
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA001663)
v.
JERRY ARIAS BURTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John J. Lonergan, Judge. Affirmed.
Sarah S. Sanger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, and Chelsea Zaragoza, Deputy
Attorney General, for Plaintiff and Respondent.
______________________________
In 1991 a jury convicted Jerry Arias Burton of murder and
five counts of attempted murder committed when he was 16 years
old, and the trial court sentenced him to 30 years to life plus
two consecutive life terms. On appeal, we modified the sentence
to reflect that Burton was entitled to eight additional days of
custody credits, affirmed the judgment as modified, and directed
the trial court “to amend the abstract of judgment accordingly.”
(People v. Burton (Sept. 17, 1992, B058332 [nonpub. opn.]
(Burton I).) The record does not reflect that the trial court
corrected the abstract, and in 2024 Burton filed a motion to recall
his sentence, correct the abstract of judgment, and certify his
case to the juvenile court for a full resentencing. The superior
court denied the motion but ordered preparation of an amended
abstract of judgment with the correct custody credits.
Burton contends the superior court’s award of additional
custody credits was a correction of a judicial error that entitled
him to a full resentencing with the benefit of ameliorative
changes in the sentencing laws for youthful offenders. However,
we decided that Burton was entitled to eight additional days of
custody credits over 30 years ago in Burton I. The superior
court’s belated compliance with our direction to correct the
abstract of judgment was a ministerial act to correct a clerical
error, not a judicial error. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Burton’s Convictions, Sentencing, and First Appeal
On the evening of March 9, 1989 the occupants of a stolen
car committed a gang-related drive-by shooting in the
Willowbrook area of Los Angeles County that killed
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John Lee Williams and seriously injured several others. An
eyewitness identified Burton as one of the occupants fleeing the
vehicle after it crashed during a police pursuit, and Burton’s
fingerprint was found on a discarded assault rifle used in the
shooting. Burton was 16 years old at the time. After his arrest,
Burton appeared in the juvenile court, but the court transferred
him to adult criminal court after finding he was not a fit and
proper subject for treatment under juvenile court law due to his
criminal sophistication and the circumstances and gravity of the
alleged offenses.
On June 13, 1990 a jury found Burton guilty of first degree
murder (Pen. Code. § 187, subd. (a); count 1)1 and five counts of
attempted willful, deliberate, and premeditated murder (§§ 187,
subd. (a), 664; counts 2-6). The jury found true as to all counts
that Burton personally used a firearm in the commission of the
offenses within the meaning of sections 12022, subdivision (a),
and 12022.5, and that Burton discharged a weapon from a vehicle
causing great bodily harm under section 12022.55.
On February 15, 1991 the trial court sentenced Burton to
30 years to life in state prison (25 years to life for the murder
plus five years for the section 12022.55 enhancement), plus
consecutive life sentences on counts 2 and 3 and concurrent life
sentences on counts 4, 5, and 6. The court imposed and stayed
the additional enhancements. The court awarded Burton
500 days of actual presentence custody credits plus 250 days of
conduct credits, for a total of 750 days of custody credits.
In our 1992 opinion in Burton I, supra, B058332, we
concluded the trial court miscalculated Burton’s actual time in
1 Further statutory references are to the Penal Code.
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custody and modified the judgment to award Burton 506 days of
actual custody credits plus 252 days of conduct credits, for a total
of 758 days of custody credits. In our disposition we stated the
trial court was “directed to amend the abstract of judgment
accordingly and to forward a copy to the Department of
Corrections [and Rehabilitation].” We affirmed the judgment as
modified. The record does not reflect whether the trial court
amended the abstract of judgment in 1992 following issuance of
the remittitur.
B. Burton’s Motion To Recall Sentence and Certify to Juvenile
Court
On March 22, 2024 Burton, represented by counsel, filed a
motion in the superior court to recall his sentence, correct the
abstract of judgment, and certify his case to the juvenile court for
resentencing. Burton argued the trial court’s failure to amend
the abstract of judgment as ordered by this court was a judicial
error because it required the trial court to exercise its discretion
in awarding the proper credits. Therefore, he asserted, the court
“must recall the sentence, and the sentence becomes non-final,
entitling Burton to the benefit of intervening ameliorative
legislation, including retroactive application of Proposition 57.2
2 Proposition 57, the Public Safety and Rehabilitation Act of
2016 (Cal. Const., art. I, § 32), passed by the voters in 2016,
reformed the process by which criminal cases may be filed
against juveniles in criminal courts. The Supreme Court in
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 held
Proposition 57 applies retroactively to “all juveniles charged
directly in adult court whose judgment was not final at the time
it was enacted.” Under Lara, when Proposition 57 applies
retroactively to a juvenile offender, the superior court should
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As a result, the superior court was required to certify the matter
to the juvenile court for further proceedings consistent with
Proposition 57.
The prosecutor argued in his opposition that the trial court
made a clerical error in failing to include the correct amount of
custody credits in the judgment. Further, after we directed the
court to amend the abstract of judgment to reflect the correct
amount of credits, the court’s failure to do so was “still clerical
error and[] ministerial in nature.”
Burton’s attorney argued at the June 14, 2024 hearing that
the trial court’s error in 1991 was a judicial error, not a clerical
error, because it appeared that the trial court miscalculated the
credits, which the clerk then recorded in the abstract of
judgment. Moreover, the proper determination of custody credits
impacted Burton’s “constitutional substantial right[s],” so Burton
had a right to have his case certified to the juvenile court for
resentencing.
The superior court denied the motion, finding there was no
authority “regarding a credit error [that] would make a case
nonfinal.” Further, Burton was not prejudiced by the failure to
apply the eight days of custody credit in 1992 in light of his
sentence of 30 years to life plus two consecutive life sentences.
The court ordered the credits be corrected and directed the clerk
to amend the abstract of judgment to award “the exact credits the
appellate court remanded it back for” and to send the amended
transfer the case to the juvenile court to hold a juvenile transfer
hearing, and if the proceeding is not transferred back to adult
court, the juvenile court should treat the convictions as juvenile
adjudications and impose an appropriate disposition. (Id. at
pp. 310-311.)
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abstract to the California Department of Corrections and
Rehabilitation.
On July 12, 2024 the superior court filed an amended
abstract of judgment reflecting that Burton was to receive
506 days of actual custody credit and 252 days of conduct credit,
for a total of 758 days of presentence credits based on the
sentencing date of February 15, 1991.
Burton timely appealed.
DISCUSSION
A. Correction of Burton’s Credits Did Not Entitle Him to a Full
Resentencing or Transfer to the Juvenile Court
Burton contends the superior court, by correcting his
custody credits, was correcting a judicial error, thereby rendering
his sentence nonfinal. We agree that the trial court’s entry of
judgment in 1992 with an incorrect award of presentence custody
credits was a judicial error. But the superior court’s
2024 modification of the abstract of judgment constituted
correction of a clerical error because we made the judicial
determination of the correct amount of custody credits in our
opinion in Burton I, supra, B058332, leaving for the trial court
only the clerical task of amending the abstract of judgment to
reflect the correct amount of custody credits. Accordingly,
Burton’s judgment became final following issuance of the
remittitur in Burton I, and it did not become nonfinal after the
superior court corrected the abstract in 2024.
As the Supreme Court explained in In re Candelario (1970)
3 Cal.3d 702, 705, “The distinction between clerical error and
judicial error is ‘whether the error was made in rendering the
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judgment, or in recording the judgment rendered.’” (Accord,
People v. Singleton (2025) 113 Cal.App.5th 783, 793; People v.
Boyd (2024) 103 Cal.App.5th 56, 64.) Based on this reasoning,
most appellate courts have concluded that a trial court’s
erroneous calculation of custody credits is a judicial error. (See
People v. Taft (2026) 119 Cal.App.5th 380, 387 [“[I]mproperly
calculating credit constitutes judicial error, as opposed to clerical
error.”]; Singleton, at p. 792 [“a court makes a judicial error when
it errs during ‘the judicial process of determining the sentence,
even if governed by mathematical rules (such as for calculating
credits)’”]; Boyd, at p. 63 [“What the trial court ordered was
properly recorded in judicial records. The trial court’s
misstatement of the number of days of credits was therefore a
judicial error, not a clerical one, as it was one made in rendering
the judgment.”]; but see People v. Powell (2026) 121 Cal.App.5th
595, 604 [“the credit calculation error here was clerical error that
the trial court had inherent power to correct”].)
Regardless of whether the judicial correction of presentence
custody credits is a judicial or clerical correction, once we decided
Burton I, supra, B058332 and modified the judgment to award
the correct number of credits, the trial court’s “‘recording [of] the
judgment rendered’” by amending the abstract of judgment
in 2024 was a clerical act. (In re Candelario, supra, 3 Cal.3d at
p. 705; People v. Singleton, supra, 113 Cal.App.5th at p. 793.) As
discussed, our disposition stated the “judgment is modified to
give appellant 506 days of actual custody credit and 252 days of
conduct credit for a total of 758 days of credit,” and “[a]s modified,
the judgment is affirmed.” Accordingly, upon issuance of the
remittitur, our decision in Burton I, supra, B058332 became final.
(See Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-526 [judgment
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becomes final “either upon expiration of the period within which
an appeal may be taken, or, if an appeal is taken, upon the
issuance of the remittitur when the judgment has been
affirmed”]; Archdale v. American Internat. Specialty Lines
Ins. Co. (2007) 154 Cal.App.4th 449, 479 [“An appeal is final on
the date remittitur issues.”].)
Further, in Burton I we directed the trial court to amend
the abstract of judgment to reflect our judicial determination of
the proper amount of custody credits. The trial court’s
modification of the abstract of judgment in 2024 did not modify
the judgment; rather, it was a ministerial correction to remedy a
clerical error in the abstract. (See People v. Mitchell (2001)
26 Cal.4th 181, 185 [“An abstract of judgment is not the
judgment of conviction; it . . . may not add to or modify the
judgment it purports to digest or summarize.”].)
Accordingly, the judgment, as modified in Burton I,
remained final and did not support resentencing or transfer to
the juvenile court. (See People v. Powell, supra, 121 Cal.App.5th
at p. 604 [“correction of a clerical error does not trigger a full
resentencing because the case remains final”]; People v. Sanchez
(2026) 119 Cal.App.5th 1060, 1064 [same]; see also People v.
Padilla (2022) 13 Cal.5th 152, 158 [retroactivity rule, which
applies to Proposition 57, “extends to all ‘nonfinal judgments’”].)
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DISPOSITION
The superior court’s July 12, 2024 order modifying Burton’s
presentence custody credits is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
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