Category Archives: Abstracts and Minutes

Abstracts and Minutes

Case 000854

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contained an error that must be corrected. 

(Gary note: This error favored the defendant, in that it reflected that the conviction was of second degree murder instead of the actual first degree murder. I include it to emphasize the importance of checking abstracts of judgment and minute orders, because errors are common. Based on what I’ve seen, I conclude that most errors depict the defendant’s plight as worse than its reality. On occasion, the error would favor the defendant if left uncorrected.)

Holding:

The abstract of error must be corrected to reflect the crime of which the defendant was actually convicted.

(Gary note: the court cited no authority for this directive, but it unquestionably has the authority. I have set out here several cases 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, Appellate Principles

Case 000850

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment should be corrected to accurately reflect that the crime-bail-crime enhancements were stayed.

Holding:

The abstract of judgment does not include the crime-bail-crime enhancements, and the court did not address them at sentencing. However, the minutes from the sentencing hearing state that punishment under section 12022.1(b) was stayed.

When a trial court’s intention is clear, we need not remand for resentencing, but can modify the judgment to reflect the intent of the trial court. Here, it is clear the court intended to stay the crime-bail-crime enhancements but failed to include the stayed enhancements on the abstract of judgment. Accordingly, we modify the judgment to reflect that the crime-bail-crime enhancements were imposed and stayed.

Authority:

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000847

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to award credit for the time the defendant served in custody. The court imposed a restitution fine that should have been vacated. The court imposed repealed fees. Remanded for the trial court to correct these errors, along with errors in the abstract of judgment.

First Holding:

Where a defendant has served any portion of his 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 he may receive upon a new commitment for the same criminal act or acts.

A court resentencing a defendant must credit the defendant with all actual days he had spent in custody, whether in jail or prison, up to that time. The updated total of credit must then be added to the abstract of judgment.

Here, the most recently amended abstract reflects no credit for time served. On remand, the trial court will need to recalculate the number of days the defendant spent in custody from the initial sentencing through the date of the resentencing and prepare an updated abstract of judgment.

The abstract of judgment must be corrected to reflect the correct date that the new sentence was pronounced at the resentencing hearing, not the date of the original sentencing.

Authority:

PEN 2900.1

PEN 2900.5

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

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125, 1129-1130

Second Holding:

The restitution fine imposed under section 1202.4 at the original sentencing in 2011 must be vacated. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

The trial court was not authorized to impose fees under former Government Code section 29550.2. The Legislature repealed that statute effective July 1, 2021. (Stats. 2020, ch. 92, sec. 25.) Even if Government Code section 29550.2 were still in effect, the Legislature has declared such fees unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Fourth Holding:

We note a clerical error in the most recently amended abstract of judgment. The abstract includes a solitary numeral “1” in section 3 of the enhancements section. The numeral is listed without an identifying label and is not included in the aggregate sentence. Presumably, this numeral is left over from the prior prison term enhancement that was stricken by the trial court at resentencing and should be deleted. We will direct the trial court to correct the amended abstract of judgment by deleting this errant numeral.

(Gary note: The court did not cite any authority for its order directing correction of the abstract of judgment, but the law is clear that it has that authority. I have listed below some cases the court could have cited as authority.)

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, Sentencing, Standard of review

Case 000846

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erred in failing to update the credit for time served. Remanded for the court to calculate the correct number of days and to correct the abstract of judgment that reflected the credit as of only the original sentence date.

First Holding:

The trial court incorrectly calculated his custody credit, and the abstract of judgment following the resentencing hearing does not reflect the actual days of custody credit as of the date of resentencing. We therefore remand the matter so the court may recalculate Smith’s actual days of custody credit and prepare an amended abstract of judgment.

Authority:

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

Second Holding:

(Gary note: The appellate court otherwise affirmed the sentence imposed on resentencing, but announced principles worthy of mention here, though they did not support any relief on appeal for this defendant.)

We review the trial court’s sentencing decisions for an abuse of discretion. We interpret relevant statutes and review claims of ineffective assistance of counsel de novo.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Mayfield (1993) 5 Cal.4th 142, 199

People v. Terwilligar (2025) 109 Cal.App.5th 585, 595

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

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

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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