Daily Archives: August 17, 2026

Abstracts and Minutes, Sentencing

Case: 000438

Posted on by Gary McCurdy

Error and/or relief

We agree with the defendant that the trial court erred in calculating his sentence, and we therefore remand for a full resentencing. At that resentencing, the trial court may revisit the aggravating factors, so we decline to decide today the defendant’s challenge to one aggravating factor. We likewise decline to decide whether the victim’s mother and sister were properly named as protected persons on the criminal protective order, as the trial court must also determine the scope of the protective order in fully resentencing the defendant.

There were also errors in the minute order and the abstract of judgment because they reflected imposition of multiple fines that were not imposed in the court’s oral pronouncement.

First Holding:

It was error for the court to sentence the defendant under section 667.71 and also sentence him to a determine term. Section 667.71, also known as the “Two Strikes” law, provides that a habitual sexual offender shall be punished by imprisonment in the state prison for 25 years to life. A habitual sexual offender is defined as a person who has been previously convicted of one or more of certain specified offenses and who is convicted in the present proceeding of one of those offenses. Among the specified offenses is lewd or lascivious act in violation of section 288(a).

The Two Strikes law is an alternative sentencing scheme for specified sexual offenses. Unlike a sentence enhancement, which imposes an additional term of imprisonment added to the base term, the Two Strikes law sets forth an alternate penalty for the underlying felony itself when the defendant has satisfied specified conditions. In other words, the trial court may either sentence the defendant under the penalty specified in the underlying statute or based on the Two Strikes law, but not both.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 355, 360

People v. Murphy (2001) 25 Cal.4th 136, 155

People v. Acosta (2002) 29 Cal.4th 105, 118 [discussing One Strike law]

Second Holding:

Because we find the trial court’s sentence as to count 2 is unauthorized, we remand for a full resentencing as to all counts to allow the trial court to exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Third Holding:

As there were errors in the minute order and abstract of judgment listing multiple fines that were not imposed in the oral pronouncement of judgment, we trust the court’s minutes and abstract of judgment will track the court’s oral pronouncement on remand.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 389 [Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it]

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000437

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates a restitution fine of $3,400 to be paid, rather than the $2,400 imposed by the trial court. It must be corrected.

Holding:

[GARY NOTE: The court cited no authority for its order directing the trial court to correct the abstract of judgment–likely because the legal principle is well-established and seems obvious–but there is plenty of authority, which I cite below.]

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

People v. Baker (2021) 10 Cal.5th 1044, 1109 [court has inherent power to correct clerical errors in abstract of judgment]

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000436

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment is incorrect in that it indicates that the trial court imposed a restitution fund fine of $330 pursuant to section 1202.4 but at sentencing the trial court stated that the amount of that fine was $300. It must be corrected.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Duty of the court, Sentencing

Case: 000435

Posted on by Gary McCurdy

Error and/or relief

We remand for the trial court to modify the judgment to reflect an additional five days of presentence custody credit.

Holding:

The defendant is entitled to all days of custody, and there was an error in the trial court’s calculation.

Authority:

PEN 2900.5

Discretion, Sentencing, Standard of review

Case: 000434

Posted on by Gary McCurdy

Error and/or relief

At the hearing on resentencing pursuant to Penal Code section 1172.75, the trial court abused its discretion in denying the defendant a continuance to obtain documents from the California Department of Corrections (CDCR). We conclude that the error prejudiced defendant because the trial court lacked potential information relevant to exercising its discretion. Additionally, the record does not show that when it denied the requested continuance, the court understood the full scope of its discretion. We reverse the judgment and remand for a new resentencing hearing.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, under section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b)is legally invalid.

Section 1172.75(d)(3) provides that the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Where defendant’s original sentence included a now-invalid sentencing enhancement the resentencing court must provide a full resentencing hearing.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

We review a trial court’s denial of a continuance for abuse of discretion. In reviewing the decision to deny a continuance, one factor to consider is whether a continuance would be useful. Here, a continuance was merited because it would have allowed defense counsel to obtain potential evidence relevant to resentencing from the CDCR. The People did not oppose the requested continuance. The burden of a continuance was minimal because there would have been no need to reschedule witnesses or consider juror inconvenience.

We do not agree that the denial of a continuance was harmless. The record does not indicate the court understood the extent of its discretion when it denied the continuance. The court incorrectly stated that its only discretion was whether to strike the additional 25-to-life gun allegation, when in fact the court had discretion to reduce the 25-year-term to impose a lesser included enhancement.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Grajeda (2025) 111 Cal.App.5th 829, 839–840

People v. McDavid (2024) 15 Cal.5th 1015, 1020–1021, 1030 [trial court has discretion to strike enhancement and impose lesser included sec. 12022.53 enhancement or other lesser included enhancement]

Third Holding:

Section 1050(b) generally requires a written motion to request a continuance, but section 1050(c) states that, notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision, albeit absent a showing good cause, sanctions may be imposed.

Authority:

PEN 1050