Category Archives: Abstracts and Minutes

Abstracts and Minutes, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000289

Posted on by Gary McCurdy

Error and/or relief

We conclude that section 654 did not apply here because the trial court granted defendant probation without imposing sentence, so we affirm the judgment. But we direct the trial court to correct the clerk’s minute order to reflect the oral pronouncement as to the jail probation condition and restitution fine and corresponding stayed probation revocation fine as $300 each.

First Holding:

There is an apparent discrepancy between the court’s oral pronouncement imposing a probation condition of 300 days in county jail and the clerk’s minute order splitting the 300 days between the two counts, showing 150 days under each count. The record of the oral pronouncement of the court controls over the clerk’s minute order. The court’s oral pronouncement was clear. It imposed a probation condition of 300 days in county jail. We order the clerk’s minute order corrected to reflect the court’s oral pronouncement of a probation condition of 300 days in county jail.

Authority:

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

People v. Mitchell (2001) 26 Cal.4th 181, 187-188

Second Holding:

Generally, section 654, which precludes multiple punishment for a single act, does not apply when a court grants a defendant probation. A grant of probation is neither punishment nor a criminal judgment. It is an act of grace and clemency designed to allow rehabilitation. No punishment is imposed. Section 654 does not apply where no punishment is imposed. This is so even if probation is conditioned on jail time. Here, because the trial court granted defendant probation without imposing a sentence, section 654 does not apply.

Authority:

PEN 654

People v. Stender (1975) 47 Cal.App.3d 413, 425, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240

People v. Wittig (1984) 158 Cal.App.3d 124, 126-127 137

People v. Prudholme (2023) 14 Cal.5th 961, 965

Third Holding:

The minute order conflicts with the trial court’s oral pronouncement, the latter which ordered only the mandatory minimum fines (here, $300), not the $1,000 fine included in the minutes. When there is a discrepancy between the court’s oral pronouncement and the clerk’s minute order or the abstract of judgment, the record of the oral pronouncement controls. We order the clerk’s minute order corrected to conform to the trial court’s oral pronouncement of the mandatory minimum restitution fine of $300 and the corresponding stayed $300 probation revocation fine.

Authority:

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

Abstracts and Minutes

Case: 000288

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to the trial court with instructions to amend the abstract of judgment for the conviction on count 2 by inserting on page one the number “6” both in the box for number of years imposed and in the box for “total time” imposed for that count.

[GARY NOTE: I can’t tell if this is a “victory,” but I included it because it is yet another instance of an error in the abstract. I suspect it had no impact in this case, but ….]

Holding:

Inasmuch as it is the oral pronouncement of sentence that controls, we exercise our authority to order that the abstract be amended to conform to the sentence pronounced at the sentencing hearing. As with other clerical errors, discrepancies between an abstract and the actual judgment as orally pronounced are subject to correction at any time, and should be corrected by a reviewing court when detected on appeal.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324 [it is the oral pronouncement of sentence that constitutes the judgment; the abstract of judgment cannot add to or modify the judgment which it purports to digest or summarize]

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

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

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

Abstracts and Minutes, Duty of the court, Fines and fees, Sentencing

Case: 000285

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contained numerous errors and must be corrected. In addition, the judge did not specify which fines and fees he was not going to impose, and the judge failed to impose certain fees that are mandatory. Remanded for the judge to orally ponounce the fines and fees it intends to impose.

Holding:

The judgment against a defendant in a felony case must be pronounced by the court with the defendant, or an attorney for the defendant, present. Fines and fees, as part of the judgment, must be orally pronounced and cannot be simply added to the judgment later outside defendant’s presence. Where there is a discrepancy between the oral pronouncement and the abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1191

PEN 1193

People v. Zackery (2007) 147 Cal.App.4th 380, 388-389

People v. Mesa (1975) 14 Cal.3d 466, 471

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

People v. Jones (2012) 54 Cal.4th 350, 353

Abstracts and Minutes, Fines and fees

Case: 000268

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not accurately state the sentence imposed. It reflects the imposition of a variety of fines and fees. The trial court struck all fines and fees pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157 [regarding inability to pay] and ordered that anything that could not be stricken be stayed. Although we will affirm the trial court’s orders, we will remand with directions to correct the abstract of judgment.

Holding:

[GARY NOTE: There was no authority indicated in the opinion for the correction of the abstract. The error is so obvious that it hardly seems necessary to provide authority. Nonetheless, there is authority the court could have cited. 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

Gary Note:

[Gary note: Duenas was disapproved by the California Supreme Court to the extent it was inconsistent with the Supreme Court’s decision in Kopp. Kopp is a must-read on the issue of the obligation of trial courts AND of the defendant (or defense counsel) regarding whether to impose certain fines and fees and the nature of the challenges available to the defendant. I have included the citation to Kopp below for your convenience, but it was not mentioned in this decision. Because of the nature of the issues raised in the brief, it was not necessary for the Court of Appeal to revisit the action of the trial court regarding imposition and staying or striking of fines and fees. The only issue was the inaccuracy of the abstract of judgment.]

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Abstracts and Minutes, Due process, Equal protection, Jury trial, Racial Justice Act, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case: 000262

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by permitting the prosecution’s peremptory challenge to a juror, within the meaning of Code of Civil Procedure section 231.7 (CCP 231.7), which requires reversal. The court also erred in denying the defendant’s motion for discovery under the Racial Justice Act (RJA) to support his claim that racial bias infected his case. We conclude the trial court misapplied the applicable legal standards. We conclude that the trial court erroneously applied the law in denying the defendant’s motion for discovery. The defendant also contends that the abstract of judgment should be corrected because it does not reflect the trial court’s ruling regarding his fees and fines. Because we reverse the conviction, we need not reach this issue.

First Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of constitutional magnitude.

Authority:

People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 759–760

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Second Holding:

After studies showed that the existing analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 was inadequate to prevent racial discrimination, the Legislature enacted CCP 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection.

Authority:

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Third Holding:

In contrast to the three-step Batson/Wheeler procedure, under CCP 231.7, there is no requirement that the objecting party first make a showing of purposeful discrimination. Rather, upon objection, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. In doing so, the court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.

Authority:

CCP 231.7

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Hinojos (2025) 110 Cal.App.5th 524, 540–541

Fourth Holding:

Unlike in the Batson/Wheeler analysis, the ultimate question for the trial court is not whether the party exercising the peremptory challenge engaged in purposeful discrimination. The statute expressly recognizes that discrimination in violation of this section need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. The trial court shall sustain the objection to the use of the peremptory challenge if the court determines there is a substantial likelihood that an objectively reasonable person [aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California], would view race as a factor in the use of the peremptory challenge. The statute defines “substantial likelihood” as more than a mere possibility but less than a standard of more likely than not.

Authority:

CCP 231.7

People v. Hinojos (2025) 110 Cal.App.5th 524, 541

Fifth Holding:

CCP 231.7, subdivisions (e) and (g) provide two separate lists of presumptively invalid reasons for exercising a peremptory challenge. Each of these subdivisions sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

Authority:

CCP 231.7(e),(g)

People v. Ortiz (2023) 96 Cal.App.5th 768, 793

Sixth Holding:

The denial of an objection shall be reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. Erroneous denial of a challenge is deemed prejudicial and requires reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7

Seventh Holding:

We review the factual underpinnings of a discovery order for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 55

Eighth Holding:

Penal Code section 745 authorizes a defendant to file a discovery motion at trial as soon as practicable upon the defendant learning of an alleged violation, and requires the trial court to hold an evidentiary hearing if the defendant makes a prima facie showing of the violation.

Authority:

PEN 745

Ninth Holding:

To establish good cause for discovery under the RJA, a defendant is required to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case. This is a notably less demanding standard than the prima facie requirement set forth in the statute for granting an evidentiary hearing, and a standard that should not be difficult to meet.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 159

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244 [trial court should consider the relevance of the proffered facts to the claims of racial bias to determine whether a minimally plausible basis exists to grant discovery—a low threshold]

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 44 [reversing denial of discovery motion where defendant had minimally proffered a plausible factual foundation for a potential violation of the RJA]

Tenth Holding:

[Gary note: The abstract of judgment apparently did not reflect the court’s order regarding fines and fees. The opinion gave no further information, because the issue would be addressed on remand for other reasons. But the law is clear that the court could have ordered correction of the abstract of judgment and minute orders. I have set forth some cases it could have relied on had it addressed the issue.]

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, Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000260

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on his petition filed under section 1172.6 for recall of sentence in light of the changes in homicide law, the trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder. The trial court misidentified the relevant life-endangering act and thereby used an incorrect legal standard for determining the defendant’s mens rea for aiding and abetting implied malice murder.

We therefore reverse and remand with directions to the trial court to conduct a new evidentiary hearing using the correct life-endangering act and consistent with this opinion. The trial court did not address the defendant’s convictions on counts 2 through 4 for attempted murder. Sentencing relief under section 1172.6 extends to attempted murder. In conducting a new evidentiary hearing following remand, the court shall make findings and rule on the defendant’s resentencing petition on the attempted murder convictions. The amended abstract of judgment indicates that the defendant pleaded guilty to second degree murder. That is incorrect: He was convicted by a jury, not pursuant to a plea agreement. The abstract of judgment must be corrected accordingly.

First Holding:

The trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder.

Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. A defendant may directly aid and abet an implied malice murder. Notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Reyes (2023) 14 Cal.5th 981, 990

Second Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

Third Holding:

A life-endangering act is the act that proximately causes death. To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. Here, the life-endangering act was the shooting by the co-defendant at the vehicle carrying the victim.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. 27

People v. Jennings (2010) 50 Cal.4th 616, 643

Fourth Holding:

Although a homicide might have more than one proximate cause, to suffice for implied malice murder, the perpetrator’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.

Authority:

People v. Garcia (2022) 82 Cal.App.5th 956, 963

People v. Reyes (2023) 14 Cal.5th 981, 989

Fifth Holding:

The co-defendant perpetrator’s act of bringing the gun to the anticipated confrontation with the other gang did not in itself give rise to a high probability that death would result. Rather, that act merely created a dangerous situation in which death was possible depending on how circumstances unfolded. Deeming a life-endangering act to be the act of the co-defendant perpetrator bringing the gun to the fight comes precariously close to a natural and probable consequences theory of liability: Bringing the gun to a gang fight becomes life endangering only because a natural and probable consequence of doing so is the gun is fired and someone is killed. [GARY NOTE: Implicit in that example is that the change in the homicide law eliminated the natural and probable consequences rationale as supporting a murder conviction of the non-killer.]

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 989

Sixth Holding:

By misidentifying the life-endangering act committed by the perpetrator, the trial court used the incorrect legal standard for determining mens rea for aiding and abetting implied malice murder.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990–991 [using incorrect life-endangering act constitutes legal error]

Seventh Holding:

We have the ability to order the correction of clerical errors in an abstract of judgment.

Authority:

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

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000258

Posted on by Gary McCurdy

Error and/or relief

The trial court’s minutes reflect the waiver of fees that the court ordered waived. The abstract of judgment, however, imposes the court security fee and the criminal conviction assessment as financial obligations against defendant. It is clear in this case that the abstract of judgment does not reflect the oral pronouncement of judgment as to the court security fee and the criminal conviction assessment. The abstract of judgment must be corrected accordingly.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.

Authority:

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

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000257

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.

First Holding:

Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367

Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1

People v. Warren (1940) 16 Cal.2d 103, 112

Second Holding:

Section 654 provides 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. The statute bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.

Authority:

People v. Cowan (2010) 50 Cal.4th 401, 498

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Third Holding:

Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 131

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).

Authority:

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

Abstracts and Minutes

Case: 000249

Posted on by Gary McCurdy

Error and/or relief

Various clerical errors in the minute order memorializing the defendant’s sentence and on the abstract of judgment need to be corrected. In counts 3 through 9, defendant was found guilty of sexual battery within the meaning of section 243.4(a). The abstract of judgment for the determinate sentence correctly identified the applicable statute as section 243.4(a) for counts 3 and 4, but it incorrectly identified the applicable statute as section 243.5(a) for counts 5 through 9. At the sentencing hearing, the trial court imposed a minimum restitution fine of $300 and a suspended parole revocation fine of $300. However, the relevant minute order and the abstract of judgment list each of these fines as $4,500. We find both fines were $300.

First Holding:

Courts may correct clerical errors at any time, and appellate courts have jurisdiction to order corrections of clerical errors contained in an abstract of judgment. The abstract of judgment will be corrected to reflect the correct statute.

Authority:

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

Second Holding:

When there is a discrepancy between an oral pronouncement of judgment and an abstract of judgment, the oral pronouncement controls. A court of appeal can order trial courts to amend a minute order and abstract of judgment to accurately reflect the trial courts oral pronouncement.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244 [abstract of judgment]

People v. Morales (2014) 224 Cal.App.4th 1587, 1594 [minute order]

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

Abstracts and Minutes, Fines and fees

Case: 000236

Posted on by Gary McCurdy

Error and/or relief

The abstracts of judgment for all of the defendants reflect assessments that were not orally pronounced (in fact, the trial court had found that the defendants did not have the ability to pay the fees) and must be stricken. The People agree. We agree with the parties and will order those assessments stricken from the abstract of judgment.

Holding:

It is well settled that 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. When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, the 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: 000234

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that one of the counts was to be served concurrently rather than consecutively as the abstract currently show.

Holding:

The abstract of judgment must be corrected to reflect that one of the counts was to be served concurrently rather than consecutively as the abstract currently show.

[GARY NOTE: The opinion listed no authority for its order directing the correction of the abstract of judgment, likely because the legal principle is well-established and seems obvious. Other opinions have cited authority for the proposition that the appellate court itself has the power to correct the abstract of judgment. For convenience, and because my point in presenting unpublished cases in the first place is to provide education on principles that might not be obvious to find in published opinions that deal with new and nuanced problems, I have set forth some authority the appellate 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