Category Archives: Abstracts and Minutes

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

Case 000978

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose the normal base term for several of his offenses in addition to the life terms under the Three Strikes law for those same offenses. The court failed to update the credit for time served. And the abstract of judgment misidentifies a second degree robbery as in the first degree, and must be corrected.

First Holding:

Where, as here, a defendant’s current sentence includes prison prior term enhancements rendered invalid under section 1172.75(a), the court shall recall the sentence and resentence the defendant. By its plain terms, section 1172.75 requires a full resentencing, not merely the striking of newly invalid enhancements.

Authority:

PEN 1172.75

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

Second Holding:

The Three Strikes law is a penalty provision, not an enhancement. It is not an enhancement because it does not add an additional term of imprisonment to the base term. Instead, it provides for an alternate sentence (25 years to life) when it is proven that the defendant has suffered the requisite number of convictions, prior and present. (At least two prior serious felony convictions, and the current offense being a qualifying offense for invocation of Third Strike sentencing.)

Authority:

People v. Williams (2014) 227 Cal.App.4th 733, 744

Third Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When a trial court pronounces an unauthorized sentence, the sentence may be set aside and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.

Authority:

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431–432

People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21

Fifth Holding:

The trial court erred in failing to update his presentence credits at the time of resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

The amended abstract of judgment incorrectly lists the defendant’s conviction in count 3 as one for first degree robbery, when in fact the conviction should be identified as one for second degree robbery. The abstract of judgment must be corrected.

(Gary note: Though the court discussed the need for amending the abstract of judgment for various reasons through the opinion, it did not cite authority for its order that it be corrected. There is plenty of authority available, of course. I have set out some cases the court could have drawn from, but there are undoubtedly many others.)

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, Duty of the court

Case 000976

Posted on by Gary McCurdy

Error and/or relief

Following the resentencing hearing on remand from the defendant’s earlier appeal, the minute order and the abstract of judgment fail to reflect the oral judgment, and each must be corrected.

First Holding:

The trial court was required to prepare an amended abstract of judgment showing the entirety of defendant’s sentence, including the fines, fees, and credits, imposed at the resentencing hearing.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185–186

Second Holding:

The minute order states only that the trial court gave a ruling “as on the record” about the aggravating circumstances, without specifying the findings on the aggravating circumstances.

When the defendant waives a jury trial and is tried by the court, the court is required to announce its factual findings at the conclusion of the hearing, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered in the minutes.

The minute order must be amended to reflect those findings as required.

Authority:

PEN 1167

Abstracts and Minutes, Duty of the court, Sentencing

Case 000965

Posted on by Gary McCurdy

Error and/or relief

(Gary note: Alas, this is yet another “not a win.” But it is yet another instance of an error in the abstract of judgment.)

The defendant was resentenced under section 1172.75. The abstract of judgment does not accurately reflect the oral pronouncement and must be corrected. Further, the trial court failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing.

First Holding:

The amended abstract of judgment fails to reflect that the trial court sentenced the defendant to two consecutive 25-year to life terms for burglary and robbery, plus a three-year enhancement on the robbery count under section 12022.7, a stayed, three-year enhancement on the burglary count under section 12022.7, and concurrent five-year enhancements under section 667(a) on both the robbery and burglary counts. We will direct the trial court to correct this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts 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.]

Second Holding:

The trial court also failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing. A court that modifies a defendant’s sentence must recalculate and credit against the modified sentence all actual time the defendant has already served, whether before or since he was originally committed and delivered to prison custody. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 41 [under section 2900.1, the trial court, having modified defendant’s sentence, should have determined all actual days defendant had spent in custody and awarded such credits in the new abstract of judgment]

People v. Sek (2022) 74 Cal.App.5th 657, 673

Abstracts and Minutes

Case 000961

Posted on by Gary McCurdy

Error and/or relief

the abstract of judgment must be corrected to conform to the trial court’s oral pronouncement striking the section 667.5, subdivision (b) prior, rather than stating, as it currently does, that the enhancement was stayed.

Holding:

The abstract of judgment must be corrected to conform to the oral judgment.

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an appellate court may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts]

Abstracts and Minutes

Case 000960

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly states that the crime was committed “by force.” The abstract must be corrected to remove those words.

Holding:

We order correction of the clerical error in the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical errors in an abstract of judgment may be corrected at any time]