Category Archives: Abstracts and Minutes

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case: 000092

Posted on by Gary McCurdy

Error and/or relief

The clerk of the superior court is directed to correct the abstract of judgment to reflect that the court did not impose any prior-prison-term enhancements under section 667.5, subdivision (b). The clerk of the superior court is directed to forward copies of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

First Holding:

As the judge did not orally impose any prior-prison-term enhancements, section 1172.5 does not come into play, despite a reference to the priors in the abstract of judgment.

Authority:

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

Second Holding:

Effective January 1, 2020, SB 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, sec. 1) amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses (sec. 667.5(b)).

Authority:

PEN 667.5(b)

People v. Garcia (2024) 101 Cal.App.5th 848, 854

Third Holding:

Effective January 1, 2022, SB 483 made the change retroactive to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

Fourth Holding:

Penal Code 1172.75 affords relief when the sentence enhancement was imposed but the punishment on the enhancement was stricken.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050

Fifth Holding:

An appellate court reviews the trial court’s ruling, not its reasoning, and will affirm on any correct ground.

Authority:

People v. Battle (2021) 11 Cal.5th 749, 800

Sixth Holding:

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.

Authority:

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

Seventh Holding:

The abstract may be corrected at any time when it does not reflect the oral pronouncements.

Authority:

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

 

Abstracts and Minutes, Fines and fees

Case 000087

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to allow the trial court to amend the abstract of judgment to reflect that the $30 criminal conviction assessment (Gov. Code, sec. 70373), the $40 court operations assessment (Pen. Code, sec. 1465.8), the $300 restitution fine (Pen. Code, sec. 1202.4), and the $300 parole revocation restitution fine (Pen. Code, sec. 1202.45), were vacated.

Holding:

The court has inherent power to correct clerical errors in abstract of judgment.

Authority:

People v. Baker (2021) 10 Cal.5th 1044, 1109

Abstracts and Minutes, Fines and fees, Sentencing

Case 000083

Posted on by Gary McCurdy

Error and/or relief

The amount of the victim restitution order must be amended, the restitution collection fee must be stricken. And an error in the minute order must be corrected to reflect that two misdemeanors were dismissed.

First Holding:

Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant’s criminal conduct. Restitution is not intended to provide the victim with a windfall. Although the court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole, here the court awarded the victim what amounts to a windfall.

Authority:

People v. Nichols (2017) 8 Cal.App.5th 330, 342

People v. Baker (2005) 126 Cal.App.4th 463, 470

Second Holding:

The 10 percent restitution collection fee is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 625 [On September 18, 2020, the Governor signed AB 1869, which eliminated the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and eliminated all outstanding debt incurred as a result of the imposition of specified administrative fees.]

Third Holding:

The minute order fails to reflect that two misdemeanor counts were dismissed, and it must be corrected.

[Gary note: The court did not cite any authority for its order for correction, but there is plenty out there. I have set forth a few cases the court could have cited, for your convenience.]

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

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

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

Abstracts and Minutes

Case 000079

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to correction of the abstract of judgment to reflect the credit for time served orally pronounced.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. The abstract of judgment must be corrected to reflet the credit for time served orally pronounced.

Authority:

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

Abstracts and Minutes

Case 000075

Posted on by Gary McCurdy

Error and/or relief

For the reasons set forth below, we affirm with instructions to modify the abstract of judgment. The trial court clerk shall prepare an amended abstract of judgment to reflect appellant’s conviction of second degree murder and forward a copy to the Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed.

Holding:

The abstract of judgment incorrectly states that the conviction was for murder in the first degree, whereas it was actually for murder in the section degree. The People agree that an error in the classification of appellant’s conviction exists and that we have the authority to correct this error.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628, 647