Category Archives: Abstracts and Minutes

Abstracts and Minutes, Appellate Principles, Sentencing

Case: 000318

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to prison terms of 60-to-life plus 13 years under both the Three Strikes law (section 667) and the Habitual Offender provisions of section 667.7. The sentence included 13 years for enhancements. The judgment is modified to strike the great bodily injury enhancement imposed under section 12022.7(a) and the two prior serious felony enhancements imposed under section 667(a). On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

First Holding:

As relevant here, section 667.7 defines a habitual offender as any person convicted of a felony in which the person inflicted great bodily injury as provided in section 12022.53 or 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in section 667.5 for the crime of assault with a deadly weapon. A habitual offender with two prior separate prison terms shall be sentenced to life in prison and shall be ineligible for parole for a period of time calculated as the longest of three options: (1) 20 years; (2) the determinate term that would be imposed under section 1170, including any enhancements; or (3) any period prescribed by Section 190 or 3046. In other words, a habitual offender is not eligible for parole for a minimum of 20 years and for at least the duration of the sentence that would otherwise be imposed for the crime, including applicable enhancements.

[Gary note: The minimum term was set at 60 years, which was arrived at by tripling the minimum 20 years to life set by section 667.7 in keeping with section 667(e)(2)(A)(i), which sets the minimum term for Three Strikes sentences at “three times the term otherwise provided as punishment for each current felony conviction” if that produces the greatest Three Strikes sentence. The third option listed above–the reference to section 3046–is what makes that the applicable minimum term under section 667.7.]

Authority:

PEN 667.7

PEN 3046(a)(2) [(a) An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: … (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.]

Second Holding:

Section 667.7 is a self-contained sentencing scheme for habitual violent offenders. Because section 667.7 ensures that a habitual offender’s parole ineligibility lasts at least as long as the corresponding determinate sentence would, including enhancements, a sentencing court may not impose determinate sentence enhancements to further lengthen this period of parole ineligibility.

Authority:

People v. Jenkins (1995) 10 Cal.4th 234, 241

People v. Victor (1991) 227 Cal.App.3d 518, 524-526

People v. Tuggle (1991) 232 Cal.App.3d 147, 157-158, disapproved on another ground in Jenkins, at p. 252

Third Holding:

Permitting determinate enhancements to be imposed on top of a habitual offender life sentence would lead to absurd, anomalous, results. Section 667.7 expressly authorizes courts to use applicable enhancements to calculate the offender’s hypothetical determinate sentence. If the total exceeds 20 years, the determinate sentence defines the offender’s minimum parole eligibility. Thus, if the determinate sentence, including enhancements, for habitual offender A equaled 21 years, this would become his minimum term. Since the enhancements were used to calculate this actual minimum term, the court could not recycle the enhancements to add another five or ten years. If the determinate sentence, including enhancements, for habitual offender B, a less serious offender, did not exceed 20 years, then B would be hit twice. First, as the Legislature intended, his minimum term would be the statutory floor, 20 years. Second, the same enhancements, which were not enough to put his determinate term over 20 years, would then be added on top of the statutory floor. This is not what the Legislature intended.

Authority:

People v. Victor (1991) 227 Cal.App.3d 518, 524-525

People v. Jenkins (1995) 10 Cal.4th 234, 253 [noting that engrafting a term of enhancement onto the life term would lead to a result inconsistent with the statute’s methodology for setting the minimum period of required imprisonment, and nothing in the statute suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term]

Fourth Holding:

An appellate court may correct a sentence that is not authorized by law. Accordingly, we will strike the unauthorized enhancements from the defendant’s sentence.

Authority:

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re Sandel (1966) 64 Cal.2d 412, 417-419

People v. Skeirik (1991) 229 Cal.App.3d 444, 468-469

Fifth Holding:

On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

[Gary note: The court cited no authority for its directive for the correction of the abstract of judgment. It isn’t entirely clear that the abstract was incorrect, but a fair reading led me to that conclusion. In any event, there is much authority supporting the court’s ability to order correction of abstracts of judgment and minute orders, and I have set out some below.]

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

Case: 000308

Posted on by Gary McCurdy

Error and/or relief

There are several errors in the abstract of judgment that require correction. Whereas the trial court orally pronounced a consecutive three-year sentence on count 6, the abstract identifies a concurrent three-year sentence on that count. Under item 8 of the abstract, the “TOTAL TIME” for counts 2 and 6 through 9 is calculated as seven years instead of six years. Finally, the abstract makes no mention of the concurrent 180 days on count 3 and a concurrent 180 days on count 4. These errors should be corrected.

Holding:

An abstract of judgment is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence. Under section 1213, the certified abstract of the judgment constitutes the commitment. It is thus the order sending the defendant to prison and the process and authority for carrying the judgment and sentence into effect. However, 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, an appellate court has the inherent power to correct such clerical error on appeal, whether on its own motion or upon application of the parties.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070

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

People v. Jones (2012) 54 Cal.4th 1, 89

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. It narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

In re Estrada (1965) 63 Cal.2d 740

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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, Appellate Principles, Fines and fees, Sentencing

Case: 000301

Posted on by Gary McCurdy

Error and/or relief

Though affirming the trial court’s reimposition of the original sentence (minus the now-invalid enhancements for prior prison terms), it remanded the matter to the trial court to expressly state which fines and fees it was imposing, as it was not clear from the record.

First Holding:

The abstract of judgment lists several fines and fees, some of which are mandatory. The trial court, however, imposed only direct restitution (which is also listed in the abstract). A superior court’s failure to orally impose mandatory fines or assessments results in an unauthorized sentence that the appellate court may correct on appeal. But we do not believe the superior court sufficiently addressed ability to pay. It mentioned ability to pay only in the context of the direct restitution. It sidestepped the issue of ability to pay, treating it as irrelevant to the issue of direct victim restitution. As the court did not orally impose any additional fines or fees, the defendant had no meaningful opportunity to raise his ability to pay with respect to them.

Authority:

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153–1157

People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859 [ability-to-pay principles have not been extended to a victim restitution payment under section 1202.4(f)]

People v. Abrahamian (2020) 45 Cal.App.5th 314, 338

People v. Evans (2019) 39 Cal.App.5th 771, 777

Second Holding:

By statute, restitution fines and probation restitution fines under section 1202.4(b) and section 1202.45 that exceed the $300 minimum shall account for ability to pay. And because of equal protection principles, a court must consider ability to pay before imposing ancillary assessments under section 1465.8(a)(1) and Government Code section 70373. As to the remaining fine in the defendant’s case, under section 1202.5, the parties do not dispute the fine must be set with ability to pay in mind, but is mandatory if affordable. Given this, we will order a limited remand for the superior court to consider the mandatory fines and assessments omitted from its oral sentencing pronouncements in connection with defendant’s ability to pay.

Authority:

PEN 1202.5

People v. Kopp (2025) 19 Cal.5th 1, 30

Third Holding:

Regarding restitution fines, section 1465.9 has recently been amended to provide 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. At least one Court of Appeal has held a court conducting a section 1172.75 resentencing cannot reimpose a restitution fine that is more than 10 years old and has held, instead, the fine should be stricken. As no restitution fine has been properly imposed, we are in no position to consider striking it, and the superior court can consider these developments on remand.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038

Fourth Holding:

Walker approved Court of Appeal decisions that viewed section 1385 as calling for holistic balancing with special emphasis on the enumerated mitigating factors. Gonzalez did not create a new rule of law, but rather corrected a superior court’s misunderstanding regarding the term endangerment to public safety in section 1385(c)(2). The statute defines the term as a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others, which does not contemplate a laser-like focus on dangerousness at the time of sentencing. The superior court in Gonzalez had expressly limited its consideration to the defendant’s current dangerousness despite the call of the statute, a mistake not present here.

Authority:

PEN 1385(c)(2)

People v. Walker (2024) 16 Cal.5th 1024, 1036

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Fifth Holding:

We need not, and typically do not, address arguments raised for the first time in a reply brief.

Authority:

People v. Dunn (2025) 18 Cal.5th 129, 183, fn. 13

People v. Adir Internat., LLC (2025) 114 Cal.App.5th 275, 298

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