Category Archives: Abstracts and Minutes

Abstracts and Minutes, Sentencing

Case 001085

Posted on by Gary McCurdy

Error and/or relief

The sentencing minute order and the abstract of judgment does not reflect the oral pronouncement of judgment and must be corrected.

Holding:

The minute order and the abstract of judgment reflect that the total of the sentence was three years instead of the orally pronounced two years. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. A minute order or abstract of judgment that does not accurately reflect the oral judgment of the trial court may be corrected on appeal.

Authority:

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

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

Abstracts and Minutes

Case 001084

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

The court’s sentencing minute order incorrectly states that the trial court imposed a term of 14 years to life for his conviction for shooting into an occupied vehicle, whereas the reporter’s transcript correctly reflects that the court imposed a 14-year determinate sentence stayed pursuant to section 654 for that conviction.

The defendant’s stayed determinate sentences for assault with a semiautomatic firearm and shooting into an occupied vehicle are incorrectly reflected on the abstract of judgment for defendant’s indeterminate prison term and should instead be listed only on the abstract of judgment for defendant’s determinate prison term.

These errors should be corrected by the trial court.

(Gary note: The court cited no authority for its order directing correction, but authority abounds. I have set forth below some 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, Fines and fees, Sentencing

Case 001083

Posted on by Gary McCurdy

Error and/or relief

There are errors in the abstract of judgment that must be corrected.

Holding:

The abstract of judgment includes an “x” in boxes 6(b) and 6(d), which appear to have been checked in an attempt to reflect the sentence of 25 years to life on the firearm enhancement imposed under section 12022.53(d). But boxes 6(b) and 6(d) are intended to reflect indeterminate sentences imposed on crimes, not enhancements, and the sentence for the firearm enhancement is reflected in the “Enhancements” section of the abstract of judgment.

The abstract of judgment reflects that a $1,000 restitution fine was imposed in “Case B.” The trial court imposed a $1,000 restitution fine under section 1202.4(b), which is reflected on the abstract of judgment, but there is no “Case B” here.

The abstract of judgment does not reflect that the trial court imposed a suspended $1,000 parole revocation fine.

The trial court is directed to correct these errors.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

Abstracts and Minutes, Sentencing

Case 001079

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This is not a win, but I have included it as yet another instance where an abstract of judgment needed correction.) There were errors in the abstract of judgment that must be corrected.

First Holding:

Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

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

Second Holding:

Here, the trial court orally imposed a section 1202.5 fine, which included “the fines, fees, assessments, and surcharges in paragraph 4 on page 15 in the probation report.” The abstract of judgment, however, does not list the individual penalty assessments imposed by the court or their statutory bases, as required.

Accordingly, we will direct the trial court to correct the clerical error in the abstract of judgment to reflect a $10 fine under section 1202.5 and assessments in the following amounts: a $2.00 court surcharge (sec. 1465.7), a $5.00 state court facilities construction fee (Gov. Code, sec. 70372(a)), a $10.00 state penalty assessment (sec. 1464), a $1.00 DNA identification fund fee (Gov. Code, sec. 76104.6), a $4.00 DNA identification fund fee (Gov. Code, sec. 76104.7), and a $7.00 county penalty assessment (Gov. Code, sec. 76000).

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200

Abstracts and Minutes, Sentencing

Case 001076

Posted on by Gary McCurdy

Error and/or relief

The trial court struck or stayed all fines at the sentencing hearing, including the restitution fines under section 1202.4 in both cases. But the abstract of judgment lists $300 fines under section 1202.4 in each case. The abstract of judgment must be corrected.

Holding:

The trial court’s oral pronouncement controls, so the abstract of judgment must be corrected.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15