Monthly Archives: June 2026

Abstracts and Minutes

Case 000044

Posted on by Gary McCurdy

Error and/or relief

The appellate court corrected the sentence to the correct term (16 months not 2 years), running some counts concurrent per the trial court order rather than consecutive per the abstract of judgment, and corrected the abstract to include several fees and fines that were imposed.

First Holding:

The abstract and minute order must be corrected to reflect that the “one third of the midterm” pronounced by the judge should have been 16 months, not two years, because the middle term for the offense is four years, not six years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

People v. Jones (2012) 54 Cal.4th 1, 89

Second Holding:

Because the minute order incorrectly states that the sentences were to run consecutively, rather than concurrently as actually ordered by the court, the minute order must be corrected, as the oral pronouncement controls. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.

Authority:

People v. Price (2004) 120 Cal.App.4th 224, 242

Third Holding:

The appellate court may correct the amount imposed by the superior court for specified assessments whose amounts are mandatory.

Authority:

People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530 [Because the seven additional assessments, surcharge, and penalties are mandatory, their omission may be corrected for the first time on appeal]

Fines and fees

Case 000043

Posted on by Gary McCurdy

Error and/or relief

The judgments is modified to vacate the restitution fine imposed pursuant to section 1202.4 because it was imposed more than 10 years ago.

Holding:

Restitution fines are no longer collectible 10 years after their imposition. Effective January 1, 2025, section 1465.9 was amended to add 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. Any remaining amount on their restitution fines should now be vacated.

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626-627

 

Abstracts and Minutes

Case 000042

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the trial court to correct the nunc pro tunc minute order dated in 2024 to reflect that in 2022, the defendant was resentenced pursuant to section 1170. The judgment is otherwise affirmed. The minute order incorrectly reflects that in 2022, the defendant was resentenced pursuant to sections 1172.7 and 1172.75, and must be corrected to reflect that he was resentenced pursuant to section 1170.

Holding:

The matter is remanded for the trial court to correct the nunc pro tunc minute order dated [on a date in] 2024 to reflect that [on a date in] 2022, the defendant was resentenced pursuant to section 1170. [GARY NOTE: The court did not cite authority other than that both parties agreed, but generally speaking, the minute order must be amended to conform to the oral pronouncement. I have listed some authorities below that the court could have cited.]

Authority:

People v. Price (2004) 120 Cal.App.4th 224, 242 [Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

People v. Jones (2012) 54 Cal.4th 1, 89

Appellate Principles, Jurisdiction, Sentencing

Case 000041

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing conducted after the remittitur issued, the trial court declined to strike or reduce the Penal Code section 12022.53(d) firearm enhancement and reimposed the sentence of 50 years to life. The parties agree that the trial court lacked jurisdiction to conduct the earlier hearing (while the appeal was up in higher court, the trial court permitted the prosecution to file new circumstance in aggravation) and the matter must be remanded for a new resentencing hearing. Accordingly, we reverse and remand for a new sentencing hearing conducted in accordance with Senate Bill 567.

First Holding:

It is well established that the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 554

People v. Burhop (2021) 65 Cal.App.5th 808, 813

Second Holding:

This jurisdictional rule serves to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided, and prevents the trial court from rendering an appeal futile by altering the appealed judgment by conducting other proceedings that may affect it.

Authority:

People v. Awad (2015) 238 Cal.App.4th 215, 224

Third Holding:

During the premature hearing, the trial court permitted the prosecution to amend the information to add a factor in aggravation pursuant to California Rules of Court, rule 4.421(b)(1), and accepted defendant’s waiver of his right to trial and admission to the new allegation. Because the trial court lacked jurisdiction to conduct this hearing, all proceedings conducted during that hearing—including the amendment of the information and defendant’s subsequent admission—are null and void.

Authority:

People v. Williams (1999) 77 Cal.App.4th 436, 446-447

Appellate Principles, Elements of crime, Sufficiency of and substantial evidence

Case 000040

Posted on by Gary McCurdy

Error and/or relief

Two of the convictions for a lewd act upon a child of 14 or 15 years must be reversed because there was insufficient evidence that victim was under 16 years old at the time of the crimes. The People concede and ask us to modify the verdicts to the lesser included and affirm as modified. Remanded for full resentencing.

Holding:

Where the appellate court finds there is insufficient evidence to support a conviction for a greater offense, it may modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Ellis (2025) 108 Cal.App.5th 590, 601