Category Archives: Abstracts and Minutes

Abstracts and Minutes, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000924

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. There is a multiple victim exception to section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

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

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

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 must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. There is a multiple victim exception to … section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

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

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

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

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Abstracts and Minutes

Case 000918

Posted on by Gary McCurdy

Error and/or relief

Following the invitation by the defendant to recall his sentence under section 1170.1, the trial court did recall his sentence and resentenced him to a considerably lesser number of years, but still more than 50 years to life. We affirm the trial court’s resentencing decision, with directions to make a correction to the record.

The trial court appropriately and correctly recalculated his credit for time served, but the abstract of judgment fails to reflect the recalculation. 

Holding:

We direct the trial court on remittitur to amend and forward to the Department of Corrections and Rehabilitation (CDCR) the abstract of judgment to reflect more than 10,000 days of actual credit and conduct credit that the trial court determined defendant was entitled to as of the resentencing date.

[Gary note: The court does not list any authority for ordering correction of the abstract of judgment, most likely because the authority is so obvious. But for your convenience, I have listed some of the cases that the court could have cited.]

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, Sentencing

Case 000914

Posted on by Gary McCurdy

Error and/or relief

After trial, the trial court issued a criminal protective order (CPO) barring the defendant from contacting his ex-wife and their two minor children. The CPO also included a pretrial order prohibiting him from dissuading the victim or witnesses from attending court hearings.

The order, however, left unselected an option that would allow exceptions for future juvenile, family, or probate court orders for the safe exchange of children and court-ordered visitation.

The CPO should not include the defendant’s children as protected parties, and it should not have included the pretrial provision regarding the dissuading of witnesses. The lack of any exceptions for future orders from other courts does not reflect the trial court’s oral ruling. We therefore partially vacate the CPO and modify it accordingly.

First Holding:

Criminal protective orders are governed by section 136.2; the trial court may issue a pretrial order under subdivision (a) of the statute, which does not survive after final judgment is rendered.

Authority:

PEN 136.2

People v. Lopez (2022) 75 Cal.App.5th 227, 236

Second Holding:

Section 136.2(i) authorizes posttrial orders if the defendant has been convicted of a qualifying offense, including those involving domestic violence. In a postconviction order, the court may bar the defendant from contacting a victim of the crime, or a percipient witness to the crime. The trial court issued the challenged CPO after trial. The trial court erred by entering a pretrial order.

Authority:

PEN 136.2(i)(1) and (i)(2)

People v. Lopez (2022) 75 Cal.App.5th 227, 236-237

People v. Walts (2025) 112 Cal.App.5th 127, 143

Third Holding:

The trial court should not have included the defendant’s children as protected parties under the CPO. The jury convicted walker of assault on his ex-wife, which is a qualifying domestic violence offense. However, nothing in the record indicates that the defendant’s children were victims or percipient witnesses of that crime. As such, there was no basis to include the defendant’s children as protected parties.

Authority:

PEN 136.2(i)(1)

FAM 13700(a) and (b).)

People v. Lopez (2022) 75 Cal.App.5th 227, 237 [children who were present during domestic violence event, but asleep, did not qualify as victims or percipient witnesses under sec. 136.2(i)]

Fourth Holding:

The trial court expressed its intention to let the family court deal with any potential exceptions to its no-contact order. However, the trial court did not select item 14(b), which would allow an exception for future orders from another court. The CPO therefore does not match the trial court’s stated ruling.

(Gary note: The court did not cite any authority for it order regarding modifying the CPO to permit another court to consider exceptions. When the abstract of judgment or minute order does not comport with the oral pronouncement, the court certainly has the power to make corrections. I have listed some cases on that point below, but keep in mind, they deal with abstracts of judgments and minute orders, not criminal protective orders. But remember that section 1260 grants the appellate courts very broad power to amend the judgment.)

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

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, Appellate Principles, Effective assistance of counsel, Racial Justice Act, Sentencing

Case 000913

Posted on by Gary McCurdy

Error and/or relief

Because the defendant failed to obtain a certificate of probable cause, we conclude that his claim under the Racial Justice Act (RJA) is not cognizable on appeal.

We agree, however, that the abstract of judgment requires correction. So we will direct the clerk of the superior court to correct the abstract of judgment and affirm.

First Holding:

The Legislature enacted the RJA in 2020, effective January 1, 2021—more than a year before the preliminary hearing in this case. Under the RJA, the state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.

The defendant argues that expert testimony at the preliminary hearing exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin. Alternatively, if his RJA claim is forfeited due to counsel’s failure to object below, he argues that counsel rendered ineffective assistance. Although an RJA claim may be raised on direct appeal, the gravamen of the defendant’s RJA claim is that he should be relieved of his otherwise knowing, intelligent, and voluntary plea agreement as it was obtained in violation of the RJA.

Because his claim thus goes to the validity of his plea, it is not cognizable on appeal absent a certificate of probable cause.

When the judgment appealed from was obtained by the defendant’s plea of guilty or no contest, the sole exceptions to the requirement of a certificate are for appeals solely on noncertificate grounds postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5.

Authority:

PEN 745

PEN 1237.5

Cal. Rules of Court, rule 8.304(b)

People v. Stamps (2020) 9 Cal.5th 685, 694

Second Holding:

Section 1237.5’s requirement of a certificate of probable cause should be applied in a strict manner, as it lays down a condition precedent to the taking of an appeal within its scope. Its assumption is that, as a general matter, a judgment of conviction entered on a defendant’s plea of guilty or nolo contendere does not present any issue warranting relief on appeal, and hence should not be reviewed thereon.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1097-1098

Third Holding:

The defendant’s claim of ineffective assistance arises from counsel’s performance before entry of the plea, and courts have consistently held that claims of ineffective assistance deriving from counsel’s preplea acts require a certificate.

Authority:

People v. Mendez (1999) 19 Cal.4th 1084, 1092 [deeming counsel’s failure to request a hearing on competency a certificate issue]

People v. Moore (2024) 104 Cal.App.5th 90, 94 [claim that counsel was ineffective for failing to request pretrial mental health diversion requires certificate of probable cause]

People v. Stubbs (1998) 61 Cal.App.4th 243, 244–245 [challenge that counsel’s preplea performance was deficient requires a certificate of probable cause]

Fourth Holding:

Nor can we find any suggestion that the Legislature intended to exempt RJA claims from the requirements of section 1237.5.

Had the Legislature intended for RJA claims to be decided on their merits whenever raised, it would not have required RJA motions to be made as soon as practicable and would have exempted such motions from the traditional rules of appellate forfeiture.

Requiring a defendant to obtain a certificate of probable cause to challenge grounds going to the legality of the proceedings after a plea is neither novel nor new, and the Legislature is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted.

Authority:

People v. Midell (2025) 113 Cal.App.5th 1060, 1076

People v. Frahs (2020) 9 Cal.5th 618, 634

Fifth Holding:

The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.

Thus, a trial court must issue the certificate if the defendant’s statement under section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious. If a court refuses to issue a certificate of probable cause, the defendant may seek a writ of mandate from the appellate court.

This low bar for issuance of a certificate would not hinder defendants from validly challenging their convictions based on alleged RJA violations.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 75

People v. Johnson (2009) 47 Cal.4th 668, 676

Sixth Holding:

Because the defendant did not obtain a certificate of probable cause, our review of his claims is thus limited to those issues that do not require a certificate.

Authority:

Cal. Rules of Court, rule 8.304(b)(3)

Seventh Holding:

The abstract of judgment contains a clerical error. Although the defendant admitted a firearm enhancement under section 12022.53(c), the trial court ultimately elected to impose a lesser enhancement under section 12022.53(d), as permitted in Tirado. The abstract of judgment, however, erroneously lists a section 12022.53(c) enhancement. We therefore direct the clerk of the superior court to correct the abstract of judgment.

Authority:

People v. Tirado (2022) 12 Cal.5th 688

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in an abstract of judgment at any time]

Abstracts and Minutes

Case 000912

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains the wrong date of the judgment and the calculation of credits for time served. The abstract must be corrected.

Holding:

We direct the superior court on remand to amend the final abstract of judgment to state the correct sentencing date and credits.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]