Category Archives: Abstracts and Minutes

Case 000488

Error and/or relief

The abstract of judgment contains errors that must be corrected.

Holding:

The abstract of judgment includes a court operations assessment of $160 and a conviction assessment of $120, which the trial court struck during its oral pronouncement of sentence. The abstract of judgment must be corrected to show these assessments were not imposed.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

Case 000487

Error and/or relief

We will order the abstract of judgment and sentencing minute order corrected to conform to the jury’s finding of only one prior strike [not two] and the oral pronouncement of judgment.

First Holding:

The abstract of judgment incorrectly reflects that the jury found true two prior conviction allegations even though a second prior conviction allegation was not submitted to the jury. The abstract of judgment and sentencing minute order currently reflect 200 days of actual credits and 200 days of conduct credits for a total of 400 days. We will direct the trial court to issue an amended abstract of judgment and corrected minute order conforming to the court’s oral pronouncement of judgment. The trial court shall correct the sentencing minute order to reflect time served rather than a 60-day consecutive sentence on count three. The trial court should correct the sentencing minute order and amend the abstract of judgment to reflect 140 days of actual time and 140 days of conduct credits for a total of 280 days of custody credits.

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. Likewise, the oral pronouncement of judgment controls over the clerk’s minute order.

Authority:

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

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

Second Holding:

It is well established that the Three Strikes law is not an enhancement. It is an alternative sentencing scheme for the current offense.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 243

Case 000484

Error and/or relief

The court failed to award presentence conduct credits, and the abstract of judgment must be corrected (a) to show the correct section and description of the crime the jury convicted the defendant of in count 7, and (b) to delete the $10,000 restitution fine and the $10,000 parole revocation restitution fine that were waived by the court.

First Holding:

When the defendant is sentenced under section 667.61, the one strike law, the court need not grant such presentence conduct credit. But here it was error to deny the defendant credit for his presentence conduct under PC 667.61, because the People never invoked section 667.61 by alleging the strikable circumstances in the accusatory pleading. The lack of such notice precluded the trial court from sentencing the defendant subject to section 667.61. Further, such a sentencing scheme would have required the court to impose an indeterminate term, and it did not. The defendant was therefore entitled to an award of conduct credits at the rate of 15%, based on his conviction of violent felony.

Authority:

PEN 667.61

PEN 2933.1

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Jimenez (2019) 35 Cal.App.5th 373, 393–397

Second Holding:

Though the information charged the defendant in count 7 with section 245 as assault with a deadly weapon (defendant’s hands and feet), the jury was instructed only as to section 245 as assault by means of force likely to cause great bodily injury. The verdict form showed simply as charged under count 7 of the information. The jury could not have convicted the defendant of anything other than assault with force likely to produce great bodily injury because it was never instructed on any other crime for the purposes of count 7.

Thus, the verdict form’s reference to the erroneous charge is a clerical error rather than a reflection of the true verdict. We may correct a clerical error on a verdict form when the error does not reflect the jury’s actual verdict. The abstract lists the offense as section 245 assault with a deadly weapon. In light of the jury instruction and the verdict form, it must be corrected to reflect that the conviction was for section 245 as assault by means of force likely to cause great bodily injury.

Authority:

People v. Perez (2018) 4 Cal.5th 1055, 1065 [Hands and feet are not deadly weapons as a matter of law]

People v. Frederickson (2020) 8 Cal.5th 963, 1026 [we presume the jury understood and followed instructions]

People v. Trotter (1992) 7 Cal.App.4th 363, 370-371 [clerical correction to verdict forms after jury is discharged is not modification of verdict itself]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court has the authority to correct clerical errors at any time]

Third Holding:

The trial court ordered direct restitution to the victim but waived the separate mandatory fines and fees. The abstract of judgment erroneously lists two fines: a $10,000 restitution fine and a $10,000 parole revocation restitution fine per section 1202.45. When the oral pronouncement of judgment and the abstract of judgment are inconsistent with one another, the oral pronouncement controls over the abstract of judgment. The abstract of judgment may be corrected at any time for accuracy.

On appeal, the Attorney General argues the abstract of judgment need not be amended because the fines have a mandatory minimum that can only be waived by a finding of compelling and extraordinary reasons, and the court’s reasoning here was insufficient. We need not reach this question. Any such argument was waived when the prosecutor did not object in the trial court.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

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

People v. Mitchell (2001) 26 Cal.4th 181, 185–188

Case: 000473

Error and/or relief

The abstract of judgment must be corrected because it shows an incorrect code section for the defendant’s conviction.

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

Case: 000471

Error and/or relief

Although not technically incorrect, the minute order is ambiguous and could be construed representing as a court finding that the court did not make. The court ordered a slight rewording.

Holding:

[GARY NOTE: The court did not cite any authority for its order rewording the minute order, but if one considers that the original order could be construed to mean something it did not, then this act is akin to ordering correction of a minute order. Though none was cited, the following cases do support the court’s authority to order corrections in abstracts of judgment and minute orders, often in the context of where the minute order or abstract does not accurately reflect the oral pronouncement.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time, and appellate courts with jurisdiction have the power to order correction of abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court]

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement; the record of the oral pronouncement of the court controls over the clerk’s minute order and abstract of judgment]

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE