Category Archives: Abstracts and Minutes

Abstracts and Minutes, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000583

Posted on by Gary McCurdy

Error and/or relief

Though the trial court erred in failing to instruct that mere presence at the scene is insufficient to prove guilt, the error was harmless in light of the other evidence presented. The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. It must be corrected.

First Holding:

The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. it must be corrected.

(GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

We review questions of instructional error de novo. In so doing, we consider the jury instructions as a whole, as well as the charges and entire record.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Serrano (2022) 77 Cal.App.5th 902, 909

Third Holding:

In determining a sufficiency of the evidence challenge, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence.Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

In other words, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is the same in cases in which the People rely primarily on circumstantial evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Bean (1988) 46 Cal.3d 919, 932

Fourth Holding:

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. Whether a person has aided and abetted a crime is a question of fact for which the trier of fact may consider presence at the scene of the crime, companionship, and conduct before and after the offense. The requisite state of mind may be proven with circumstantial evidence.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055

Fifth Holding:

Although defendant’s mere presence at the scene cannot alone establish aiding and abetting, her presence may be considered along with other evidence to establish that she aided and abetted the burglary. Further, possession of recently stolen property cannot alone establish burglary, but such possession is highly incriminating and need only be slightly corroborated.

Authority:

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Mendoza (2000) 24 Cal.4th 130, 176

People v. McFarland (1962) 58 Cal.2d 748, 754-755

Sixth Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. The trial court has a sua sponte duty to give the mere presence portion of the aiding and abetting instructions where there is substantial evidence supporting its consideration.

Authority:

People v. Ochoa (1998) 19 Cal.4th 353, 422

People v. Boyd (1990) 222 Cal.App.3d 541, 557

Seventh Holding:

We conclude that the defendant’s testimony was sufficient to trigger the trial court’s sua sponte duty to give the mere presence portion of the aiding and abetting instruction. However, whether prejudice is to be measured under the Watson standard or the more rigorous Chapman standard, we find beyond a reasonable doubt that the failure to instruct was harmless, in light of our review of the entire record, including the arguments of the parties.

Authority:

People v. Boyd (1990) 222 Cal.App.3d 541, 557

People v. Perry (1979) 100 Cal.App.3d 251, 260

People v. Powell (2021) 63 Cal.App.5th 689, 715

People v. Watson (1956) 46 Cal.2d 818

Chapman v. California (1967) 386 U.S. 18

Abstracts and Minutes, Elements of crime, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000576

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the jury’s verdict, the abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[Gary note: there was no legal analysis presented on the probation conditions issues, because the People agreed they were improper, and the court accepted the concession without further discussion or citation to authority.]

First Holding:

The abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[GARY note: the appellate court did not cite authority for its order to correct the abstract of judgment, but there is considerable authority that the court could have relied on, which I set forth below:]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In evaluating whether the evidence was sufficient to support a guilty verdict, we consider only the evidence presented and we disregard the jury’s not guilty or not true findings on other counts or enhancements.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 319

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Price (2017) 8 Cal.App.5th 409, 452–453

People v. Miranda (2011) 192 Cal.App.4th 398, 405–406

Third Holding:

Great bodily injury under section 245 is defined as an injury that is greater than minor or moderate harm. A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Where to draw that line is for the jury to decide. Great bodily injury can include contusions, abrasions, lacerations, and bruising.

The use of hands or fist alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which force was applied.

Whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. In this context, likely to produce great bodily injury means more than a mere possibility. The evidence must prove more than a mere possibility that the force actually used would result in greater than moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Cross (2008) 45 Cal.4th 58, 64

People v. Escobar (1992) 3 Cal.4th 740, 752

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

People v. Wingo (1975) 14 Cal.3d 169, 176

People v. Medellin (2020) 45 Cal.App.5th 519, 527-528

People v. Thiel (2016) 5 Cal.App.5th 1201, 1213

In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161–1162 [rejecting defendant’s argument that one blow to the face of the victim could not have been likely to cause great bodily injury]

People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [the statute focuses on force likely to produce great bodily injury; whether the victim in fact suffers any harm is immaterial]

Abstracts and Minutes

Case 000575

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment erroneously indicates that the defendant was sentenced to a term of imprisonment of lifife without the possibility of parole (LWOP). It must be corrected to reflect the actual sentence imposed by the court, which did not include LWOP.

Holding:

When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.

Authority:

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

Abstracts and Minutes

Case 000570

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected, as the fines and fees it lists were not ordered by the court.

Holding:

At sentencing, the trial court imposed the prison sentence and awarded custody credits, but did not impose any fines or fees on the record. The abstract of judgment, however, lists a $300 restitution fine, a $300 parole revocation fine, suspended unless parole is revoked, a $40 court operations fee, and a $30 criminal conviction assessment fee. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

If the clerk includes fines in the court’s minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment.Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. Because the trial court did not orally impose any fines or fees, we order the court to prepare a corrected abstract of judgment striking the fines and fees.

Authority:

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

People v. Clark (2021) 67 Cal.App.5th 248, 261

People v. Mitchell (2001) 26 Cal.4th 181, 185

Abstracts and Minutes, Duty of the court, Sentencing

Case 000569

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing on a prior strike where the defendant did not waive a trial and did not admit the prior. Errors in the minute order must be corrected to reflect that a sentence on one count was 364 days in the county jail, not 365 days.

First Holding:

Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The prosecution bears the burden of proving a strike prior allegation beyond a reasonable doubt.

Authority:

PEN 1158

People v. Frierson (2017) 4 Cal.5th 225, 233

Second Holding:

This procedure was not followed here. While the defendant expressed his intention to admit the strike prior, the record shows he never actually did so. Nor did a jury or the trial court find beyond a reasonable doubt that the defendant suffered the alleged strike prior. Accordingly, we must reverse the true finding as to the strike prior allegation and remand for the trial court to hold a hearing on whether the defendant elects to admit the strike prior allegation or proceed to trial on it and hold further proceedings accordingly.

Authority:

People v. Strike (2020) 45 Cal.App.5th 143, 154 [when true finding on strike prior allegation is reversed, the appropriate remedy is to remand the case to the trial court for a new hearing on the prior strike allegation]

Third Holding:

Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. Count 2 is subject to this 364-day limit on imprisonment. Yet here, the Felony Minutes—Pronouncement of Judgment dated specify the defendant’s term of imprisonment for count 2 to be 365 days. Under section 18.5, this length of imprisonment is improper. Accordingly, on remand we direct the trial court to amend the Felony Minutes—Pronouncement of Judgment to reflect a term of imprisonment of 364 days on count 2.

[GARY Note: the court listed no authority for directing the correction of the minute order, so I have listed some cases that it could have relied on.]

Authority:

PEN 18.5

People v. Zackery (2007) 147 Cal.App.4th 380, 387-38

People v. Mitchell (2001) 26 Cal.4th 181, 185

Abstracts and Minutes, Duty of the court, Juveniles, Sentencing

Case 000568

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred in not declaring whether it found the minor’s wobbler offense (section 29610) to be a misdemeanor or a felony.

First Holding:

An offense under Penal Code section 29610 is a wobbler punishable by imprisonment or jail.

Authority:

In re D.D. (2015) 234 Cal.App.4th 824, 829

Second Holding:

Welf. and Inst. Code section 702 requires the juvenile court to declare on the record at a hearing before or at the time of disposition its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. Neither the pleading, the minute order, nor the setting of a felony-level period of confinement may substitute for the required declaration. The juvenile court’s failure to make this declaration as to each wobbler offense is error. A juvenile court’s failure to comply with section 702’s express declaration requirement must be corrected on remand unless the record as a whole establishes that the juvenile court was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 712

Third Holding:

The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment. Although the minute order reflects that the court declared the offense in count 1 a felony, the reporter’s transcript of the oral pronouncement reflects no such declaration. The latter controls.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000557

Posted on by Gary McCurdy

Error and/or relief

The court erred in placing the defendant on probation for a period of five years, because the maximum allowed in this case is three years. The matter is remanded for resentencing. There are also errors in the abstract of judgment that should be corrected in keeping with the resentencing.

First Holding:

Under the Penal Code, in granting probation, a trial court generally may suspend imposition or execution of sentence “for a period of time not exceeding two years. However, this two-year limit does not apply where an offense includes specific probation lengths within its provisions. Nevertheless, for such offenses, probation may continue for a period of time not exceeding the maximum possible term of the sentence.

Under Vehicle Code section 23600, under which violations of section 23152 are punishable, a period of probation not less than three nor more than five years may be imposed. But the defendant faced a maximum possible term of imprisonment of only three years. Accordingly, under section 1203.1(l)(1), the maximum authorized term of probation was three years, as the People concede.

Authority:

PEN 1203.1(a)

Second Holding:

An unauthorized sentence is subject to correction at any time without objection.

Authority:

People v. Landry (2016) 2 Cal.5th 52, 127, fn. 22

Third Holding:

The minute order contains errors, including a lab fee that was not ordered and transposing the fines to $2905 rather than the $2095 that was actually ordered by the court. Though because we are remanding for resentencing and thus the issue is moot, we point out that the minute order should accurately reflect fines, fees, and assessments pronounced by the trial court.. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order. In addition, the trial court retains the authority to correct clerical errors.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 387-388

People v. Mitchell (2001) 26 Cal.4th 181, 185

Abstracts and Minutes

Case 000554

Posted on by Gary McCurdy

Error and/or relief

The record contains an abstract of judgment for the indeterminate term, but not an abstract for the determinate terms. Further, there is an error in the abstract of judgment for the indeterminate term that must be corrected.

The trial court sentenced the defendant to life imprisonment for attempted murder. However, the abstract of judgment indicates a sentence of life without the possibility of parole.

We direct the trial court to prepare an amended abstract of judgment that reflects the correct indeterminate term imposed and to ensure there is a separate abstract of judgment for the determinate terms

Holding:

[GARY Note: The court cited no authority for its order directing the trial court to amend the abstract of judgment. Aside from it seeming to be an obvious need, there is much authority for correction of abstracts of judgments and minute orders. Here are a few.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Abstracts and Minutes

Case 000553

Posted on by Gary McCurdy

Error and/or relief

Following resentencing under section 1172.75, the court determined the credit for time served to be the original number of days as of the original sentencing plus additional days by the resentencing date. The abstract of judgment recorded only the the days as of the original sentencing hearing. There were three other errors in the abstract of judgment related the identity of the appropriate code sections for the notations and failure to check the appropriate boxes. We remand so the abstract can be corrected accordingly.

Holding:

The oral imposition of sentence constitutes the judgment in an action, and the court clerk cannot modify the terms of that oral pronouncement when preparing the minutes or the abstract of judgment.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000538

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it contains several errors, including a representation that the court imposed a $300 restitution, contrary to the actual order.

First Holding:

The abstract of judgment reflects a $300 restitution fine under section 1202.4(b) and a $300 parole revocation fine under section 1202.45 that were not orally imposed during the sentencing hearing. Under section 1202.4(b), the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Under section 1202.45, if a defendant’s sentence includes a period of parole or the defendant is subject to post-release community supervision or mandatory supervision, the court shall impose an additional fine in the same amount as the section 1202.4 fine.

The People did not object to the court’s failure to orally impose these fines. Because such fines are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we direct those fines to be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Second Holding:

The abstract of judgment reflects that the restitution fine was imposed, but it was not. The oral pronouncement controls, so we amend the abstract of judgment accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188

Abstracts and Minutes

Case 000528

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that the sentence was enhanced under section 12022(a) (armed with a firearm) and not under section 12022.5 (use of firearm).

Holding:

The appellate court may direct the trial court to correct clerical errors in an abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Abstracts and Minutes, Fines and fees

Case 000523

Posted on by Gary McCurdy

Error and/or relief

The minute order incorrectly states the court ordered defendant to pay various fines and fees, whereas the court actually struck all applicable fines and fees. It must be corrected.

Holding:

After defendant entered the plea agreement and the court placed him on probation, it ordered the applicable fines and fees stricken. The minute order from the plea hearing incorrectly reflects that the court imposed various fines and fees. Respondent agrees with defendant that the minute order should be corrected to show the fines and fees were stricken. This appears to be a clerical error, which we will direct the superior court clerk to correct.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 80

In re Candelario (1970) 3 Cal.3d