Category Archives: Abstracts and Minutes

Error and/or relief

The abstract of judgment does not reflect the in-custody credits announced by the court during the resentencing hearing. Specifically, the court ordered the abstract of judgment to reflect, not only the presentence credits but also the actual days in prison, which were calculated as [X] days [more than 32 years]. It must be corrected.

Holding:

The failure to include the credit for time served pronounced in the oral judgment is clerical error. Courts may correct clerical errors at any time.

Authority:

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

Error and/or relief

The abstract of judgment against the defendant contains a clerical error that must be corrected. It states the trial court imposed a restitution fine of $2,800 under Penal Code section 1202.4(b). The reporter’s transcript of the sentencing court’s oral pronouncement, however, states the fine was $280.

We direct the trial court to amend the abstract of judgment to reflect the correct amount.

Holding:

Conflicts between the oral pronouncement of judgment found in the reporter’s transcript and the abstract of judgment found in the clerk’s transcript are generally presumed to be clerical in nature and are resolved in favor of the reporter’s transcript unless the particular circumstances dictate otherwise. An abstract of judgment must reflect a restitution fine a sentencing court has orally imposed under section 1202.4(b). Courts may correct clerical errors at any time.

Authority:

In re P.A. (2012) 211 Cal.App.4th 23, 30, fn. 4

People v. Gonzalez (2012) 210 Cal.App.4th 724, 744

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

People v. Hong (1998) 64 Cal.App.4th 1071, 1080

Error and/or relief

The abstract of judgment indicates that the defendant was convicted by plea. It is incorrect. The defendant was convicted by jury. The abstract of judgment must be corrected.

Holding:

(Gary note: The court cited no authority for its order to correct the abstract, but it could have drawn from any of many cases. I have set forth a few for your convenience.)

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

Error and/or relief

The abstract of judgment contains several errors that must be corrected to reflect the correct case number, the proper number of days of credit for time served, and the imposition of a minimum restitution fine.

Holding:

We will direct the trial court to correct these errors and omissions in the abstract of judgment.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070, superseded by statute on other grounds as stated in People v. Frahs (2018) 27 Cal.App.5th 784