Category Archives: Abstracts and Minutes

Abstracts and Minutes, Sentencing

Case 001100

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains a clerical error on the sentence and must be corrected.

Holding:

The transcript of the sentencing hearing and the corresponding minute order reflect that the court imposed a total indeterminate term of 152 years to life, but the abstract of judgment identifies the total term as 156 years to life. 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. Because we may order the correction of such clerical errors, we will direct the trial court to modify the abstract of judgment.

Authority:

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

People v. Mitchell (2001) 26 Cal.4th 181, 186-187

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 001091

Posted on by Gary McCurdy

Error and/or relief

There are clerical errors in the abstract of judgment and sentencing minute order that must be corrected.

First Holding:

Contrary to the abstract of judgment and sentencing minute order, there was no order for direct victim restitution, and the defendant was not sentenced under section 667.7. Further, they reflect presentence conduct credits that he is not entitled to as a result of his crimes of conviction and was not awarded by the court. The court is ordered to correct those errors in the abstract of judgment and the sentencing minute order.

Authority:

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

Second Holding:

The defendant requests that we remand under Kopp for the trial court to consider the defendant’s ability to pay the standard assessments imposed under section 1465.8 and Government Code section 70373. He did not object to the standard assessments below and forfeited the claim.

Although Kopp was decided after the sentencing hearing, Dueñas was decided before. Dueñas held that a defendant may object to the imposition of standard assessments under section 1465.8 and Government Code section 70373 due to an inability to pay. Thus, an objection would have been supported by substantive law in existence at the time of the hearing; by failing to object, he forfeited the claim.

Authority:

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

People v. Welch (1993) 5 Cal.4th 228, 237–238 [failing to object excused if objection wholly unsupported by substantive law then in existence]

People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168

(Gary note: Be careful when relying on Duenas. While it may not have been completely overruled by Kopp, at least portions of its reasoning were disapproved by Kopp. Footnote 17 of Kopp states (I have deleted the Cal.Rptr. citations), “We disapprove the following cases to the extent they are inconsistent with our opinion: People v. Cowan (2020) 47 Cal.App.5th 32 …; People v. Belloso (2019) 42 Cal.App.5th 647 …; People v. Castellano (2019) 33 Cal.App.5th 485 …; People v. Dueñas, supra, 30 Cal.App.5th 1157.”)

Abstracts and Minutes, Fines and fees, Sentencing

Case 001090

Posted on by Gary McCurdy

Error and/or relief

It was improper for the court to impose an enhancement for great bodily injury under section 12022.7 in addition to the enhancement for use of firearm under section 12022.53(d). Further, the abstract of judgment reflects a $10,000 restitution fine that was not included in the oral pronouncement, and it must be corrected.

First Holding:

On count 1, the trial court imposed both a 3-year determinate term for great bodily injury under section 12022.7(a) and a 25-years-to-life indeterminate term for personally and intentionally discharging a firearm and proximately causing great bodily injury under section 12022.53(d). Because section 12022.53(d) requires a finding of great bodily injury, we see this as analogous to Gonzales, and order the enhancement under section 12022.7 stayed.

In Gonzales, the Supreme Court held that section 12022.53 requires that, after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.

Authority:

PEN 12022.7

PEN 12022.53(d)

People v. Gonzalez (2008) 43 Cal.4th 1118, 1130

Second Holding:

The sentencing court imposed a restitution fine of $10,000 but suspended it pending a hearing on the defendant’s ability to pay. The abstract of judgment, however, indicates that the $10,000 restitution fine was imposed, and there is no indication that an ability to pay hearing occurred. We therefore exercise our authority to modify the abstract of judgment to reflect the oral pronouncement by striking the $10,000 restitution fine pursuant to section 1202.4(b).

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1466, 1473 [exercising authority to modify judgment, impose sentence, and stay execution of sentence]

People v. Felix (2009) 172 Cal.App.4th 1618, 1631 [correcting abstract to match oral pronouncement]

Abstracts and Minutes, Sentencing

Case 001087

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the abstract of judgment fails to reflect the credit for time served ordered by the court, and it must be corrected.

Holding:

The abstract of judgment must be corrected to reflect an additional (more than 3400) days of custody credits, as ordered by the trial court. It does not reflect the days ordered by the court for the time since the original sentencing, and it overstates the conduct credit that was originally ordered by 200 days.

In the event of a discrepancy between the oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls. It follows that we must correct the discrepancy by ordering the trial court to modify the minute order. Accordingly, the amended abstract of judgment must be corrected to reflect the correct number of prior credits and to add the additional (more than 3400) days.

Authority:

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Abstracts and Minutes, Sentencing

Case 001086

Posted on by Gary McCurdy

Error and/or relief

There is a discrepancy between the trial court’s oral pronouncement and the abstract of judgment. It must be corrected.

Holding:

The abstract of judgment indicates that the trial court imposed a $40 court operations assessment and a $30 criminal conviction assessment. The trial court did not orally impose either assessment. When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. We have inherent authority to correct errors to accurately reflect the “oral judgments of sentencing courts. We order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-186