Category Archives: Abstracts and Minutes

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000513

Posted on by Gary McCurdy

Error and/or relief

It is improper for a trial court to delegate to a probation officer whether to require a probationer to undergo residential substance abuse treatment.

First Holding:

In resolving whether a clerk’s transcript or the reporter’s transcript controls in the event of a conflict, we do not apply a mechanical rule in favor of the reporter’s transcript but instead consider the circumstances of each particular case to determine which portion of the record because of its origin and nature or otherwise, is entitled to greater credence. F

or reasons we explain below, in this case, we conclude that the clerk’s transcript best reflects the trial court’s intention to delegate to a probation officer whether to require the defendant to attend residential treatment. In this case the clerk’s minutes note that some of the probation conditions are set out in the probation order. Provision number nine of that order provides, “Complete a program of residential treatment and aftercare if directed by the probation officer.” The reporter’s transcript, however, with respect to this condition, states only, “Plead [sic] to any kind of treatment or aftercare if directed by probation.” We must determine which of the two versions reflects the court’s true intention.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

Second Holding:

As a general rule, courts will attempt to harmonize the record if a conflict exists. Historically, when a conflict between the court’s oral pronouncement and the written record could not be resolved, the oral pronouncement was given preference However, the modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346

Third Holding:

With respect to the type of record at issue here, when evaluating a court’s oral pronouncement of probation conditions, a thorough explanation of the conditions is not necessary if the defendant knows what the proposed conditions are. Therefore, the oral pronouncement may be less detailed than the probation order. In this instance, it is clear that the court summarized the conditions of the probation as outlined in the probation order proposed by the probation officer. We conclude that the court intended to adopt the language proposed, to the extent that it did not modify the language (as it did with some proposed conditions. We therefore conclude that the minute order and the probation order are to be given “greater credence” than the oral pronouncement in determining the applicable probation condition under review.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [recital of probation conditions in court is unnecessary because conditions are spelled out in detail in the probation order]

People v. Smith (1983) 33 Cal.3d 596, 599

Fourth Holding:

The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by the Constitution. Trial courts have the authority to determine if a defendant is eligible for probation and if so, which conditions would be appropriate under the circumstances. By ordering probation, a court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Accordingly, a court may require a defendant to complete a residential treatment program, even though it would place a significant burden on a defendant’s liberty interests. A probation officer, on the other hand, has discretion to oversee and enforce the trial court’s orders. The probation officer may not create conditions not expressly authorized by the court.

Authority:

Cal. Const., art. III, sec. 3

PEN 1203

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Fifth Holding:

It is an unconstitutional delegation to the probation officer to decide whether the defendant needed to complete residential treatment, as opposed to an outpatient program. Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 905

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

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 000511

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains several errors and must be corrected.

Holding:

The abstract of judgment mistakenly included a $40 court operations assessment and a $30 conviction assessment, neither of which the court imposed, and it misidentified the defendant’s custody credits to have been awarded pursuant to section 4019 rather than section 2933.1. It also omitted a reference to subdivision (b) when it reflected the enhancement imposed was pursuant to section 12022.53.

Finally, the abstract did not reflect that the $300 fine imposed per section 1202.4 was suspended by the court unless and until parole was revoked. It is firmly established that fines, fees, and other financial assessments cannot be included in an abstract of judgment in a criminal case unless imposed by the court by its oral pronouncement at sentencing. By the same logic, when the court suspends execution of a fine in its oral pronouncement, that fact must be reflected on the abstract as well.

Authority:

People v. Clark (2021) 67 Cal.App.5th 248, 260–261

Abstracts and Minutes, Effective assistance of counsel, Sentencing

Case 000510

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the correct sentence to 27 years rather than the 27 years two months as shown, and to reflect that the term imposed for one count is one-third the middle term.

First Holding:

A reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment by the sentencing court.

Authority:

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

Second Holding:

As a general rule, only claims properly raised and preserved by the parties are reviewable on appeal. Our Supreme Court adopted this forfeiture rule to reduce the number of errors committed in the first instance], and the number of costly appeals brought on that basis. In the context of criminal sentencing, this forfeiture rule applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Welch (1993) 5 Cal.4th 228, 235

Third Holding:

At resentencing, the defendant did not ask the trial court to strike the prior serious felony enhancements or argue that imposing both the firearm enhancement and the upper term on count 16 would result in an impermissible dual use of facts. The record contains no sentencing brief; and both defense counsel and the defendant himself responded in the negative when the trial court asked if they wished to be heard at the resentencing hearing. To preserve his claims, the defendant was required to object at resentencing. Because he did not do so, his current appellate contentions are forfeited.

Authority:

People v. Scott (1994) 9 Cal.4th 331,353

People v. Coleman (2024) 98 Cal.App.5th 709, 723-725

Fourth Holding:

If the defendant believes that evidence outside the record would support his claim of ineffective assistance of counsel, the proper remedy would be a petition for a writ of habeas corpus.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 111

Abstracts and Minutes

Case 000502

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to accurately reflect the trial court’s oral pronouncement.

Holding:

At a full resentencing hearing, the trial court suspended the restitution fine originally imposed. The court specifically stated, “I will suspend any victim restitution fines due to inability to pay.” The court ordered the abstract of judgment to be amended accordingly. However, the third amended abstract of judgment filed does not reflect the restitution fine as being suspended. The third abstract of judgment shows a restitution fine in the amount of $10,000 pursuant to section 1202.4(b). Generally, when the court’s oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement prevails. This is because the abstract of judgment is not itself the judgment of conviction but merely a summary of the judgment. 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. Hence, the third abstract of judgment must be corrected to reflect the trial court’s oral pronouncement of judgment.

Authority:

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

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

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

Abstracts and Minutes

Case 000501

Posted on by Gary McCurdy

Error and/or relief

The abstracts of judgment (including the abstract of the determinate sentence and the indeterminate sentence) incorrectly state that Defendant was convicted by the court. The clerk is directed to amend both abstracts of judgment so that they correctly reflect that Defendant was convicted by jury.

Holding:

The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. It goes without saying that accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification. This court has the authority to correct clerical errors at any time.

Authority:

PEN 1213

People v. Mitchell (2001) 26 Cal.4th 181, 185-187

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

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000500

Posted on by Gary McCurdy

Error and/or relief

The condition that the defendant participate in and complete, at his expense, any counseling, rehabilitation, or treatment program deemed appropriate by his probation officer is unconstitutional. The sentencing memorandum must be amended to reflect the court’s waiver of all fines and fees.

First Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine (Cal. Const., art. III, sec. 3), judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. Here, defendant’s condition does not specify the kind of program defendant might be required to complete; rather, it allows defendant’s probation officer to determine whether and in what type of program defendant could be ordered to participate. Thus, the probation condition improperly delegates judicial authority to the probation officer.

Authority:

Cal. Const. art. III sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Second Holding:

Where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to global positioning system monitoring]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided that the defendant shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer] [CONTRA] People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [Upholding probation condition which directed defendant to follow such course of conduct as the probation officer may prescribe] [CONTRA:] People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program]

Third Holding:

The sentencing memorandum should be modified to accurately reflect the court’s oral pronouncement that all applicable fines and fees be waived. We shall direct the court to correct the sentencing memorandum.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment]

People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3 [The reviewing court has the authority to correct clerical errors]

Abstracts and Minutes, Duty of the court, Sentencing

Case 000498

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court must recaculate credits for time served.

First Holding:

Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32

People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]

Abstracts and Minutes

Case 000497

Posted on by Gary McCurdy

Error and/or relief

We remand the matter to the trial court, directing the court to correct its records to conform with the oral pronouncement of judgment at appellant’s 2025 resentencing hearing. Specifically, the minute order should be corrected to reflect that the court struck the section 667.5(b) prior prison term enhancement. Thecourt shall prepare an amended abstract of judgment reflecting the section 667.5(b) prior prison enhancement was stricken and that imposition of punishment on counts 2 and 3 was stayed pursuant to section 654.

Holding:

When there is a discrepancy between the court’s oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls. Clerical errors may be corrected any time they do not accurately reflect the oral judgments of sentencing courts.

Authority:

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

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

Abstracts and Minutes

Case 000488

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains errors that must be corrected.

Holding:

The abstract of judgment includes a court operations assessment of $160 and a conviction assessment of $120, which the trial court struck during its oral pronouncement of sentence. The abstract of judgment must be corrected to show these assessments were not imposed.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

Abstracts and Minutes

Case 000487

Posted on by Gary McCurdy

Error and/or relief

We will order the abstract of judgment and sentencing minute order corrected to conform to the jury’s finding of only one prior strike [not two] and the oral pronouncement of judgment.

First Holding:

The abstract of judgment incorrectly reflects that the jury found true two prior conviction allegations even though a second prior conviction allegation was not submitted to the jury. The abstract of judgment and sentencing minute order currently reflect 200 days of actual credits and 200 days of conduct credits for a total of 400 days. We will direct the trial court to issue an amended abstract of judgment and corrected minute order conforming to the court’s oral pronouncement of judgment. The trial court shall correct the sentencing minute order to reflect time served rather than a 60-day consecutive sentence on count three. The trial court should correct the sentencing minute order and amend the abstract of judgment to reflect 140 days of actual time and 140 days of conduct credits for a total of 280 days of custody credits.

An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. Likewise, the oral pronouncement of judgment controls over the clerk’s minute order.

Authority:

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

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

Second Holding:

It is well established that the Three Strikes law is not an enhancement. It is an alternative sentencing scheme for the current offense.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 243

Abstracts and Minutes, Elements of crime, Pleading, Sentencing

Case 000484

Posted on by Gary McCurdy

Error and/or relief

The court failed to award presentence conduct credits, and the abstract of judgment must be corrected (a) to show the correct section and description of the crime the jury convicted the defendant of in count 7, and (b) to delete the $10,000 restitution fine and the $10,000 parole revocation restitution fine that were waived by the court.

First Holding:

When the defendant is sentenced under section 667.61, the one strike law, the court need not grant such presentence conduct credit. But here it was error to deny the defendant credit for his presentence conduct under PC 667.61, because the People never invoked section 667.61 by alleging the strikable circumstances in the accusatory pleading. The lack of such notice precluded the trial court from sentencing the defendant subject to section 667.61. Further, such a sentencing scheme would have required the court to impose an indeterminate term, and it did not. The defendant was therefore entitled to an award of conduct credits at the rate of 15%, based on his conviction of violent felony.

Authority:

PEN 667.61

PEN 2933.1

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Jimenez (2019) 35 Cal.App.5th 373, 393–397

Second Holding:

Though the information charged the defendant in count 7 with section 245 as assault with a deadly weapon (defendant’s hands and feet), the jury was instructed only as to section 245 as assault by means of force likely to cause great bodily injury. The verdict form showed simply as charged under count 7 of the information. The jury could not have convicted the defendant of anything other than assault with force likely to produce great bodily injury because it was never instructed on any other crime for the purposes of count 7.

Thus, the verdict form’s reference to the erroneous charge is a clerical error rather than a reflection of the true verdict. We may correct a clerical error on a verdict form when the error does not reflect the jury’s actual verdict. The abstract lists the offense as section 245 assault with a deadly weapon. In light of the jury instruction and the verdict form, it must be corrected to reflect that the conviction was for section 245 as assault by means of force likely to cause great bodily injury.

Authority:

People v. Perez (2018) 4 Cal.5th 1055, 1065 [Hands and feet are not deadly weapons as a matter of law]

People v. Frederickson (2020) 8 Cal.5th 963, 1026 [we presume the jury understood and followed instructions]

People v. Trotter (1992) 7 Cal.App.4th 363, 370-371 [clerical correction to verdict forms after jury is discharged is not modification of verdict itself]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court has the authority to correct clerical errors at any time]

Third Holding:

The trial court ordered direct restitution to the victim but waived the separate mandatory fines and fees. The abstract of judgment erroneously lists two fines: a $10,000 restitution fine and a $10,000 parole revocation restitution fine per section 1202.45. When the oral pronouncement of judgment and the abstract of judgment are inconsistent with one another, the oral pronouncement controls over the abstract of judgment. The abstract of judgment may be corrected at any time for accuracy.

On appeal, the Attorney General argues the abstract of judgment need not be amended because the fines have a mandatory minimum that can only be waived by a finding of compelling and extraordinary reasons, and the court’s reasoning here was insufficient. We need not reach this question. Any such argument was waived when the prosecutor did not object in the trial court.

Authority:

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

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

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