Category Archives: Abstracts and Minutes

Abstracts and Minutes, Discretion, Sentencing, Standard of review

Case 001074

Posted on by Gary McCurdy

Error and/or relief

The trial court misunderstood the scope of its discretion when it considered the defendant’s request for resentencing under section 1172.1. It believed that it was bound by the decision affirming his conviction at his original appeal and by the later decision denying his motion to have his conviction vacated under section 1172.6.

The evidence on which the defendant relied in requesting resentencing under section 1172.1, however, was not available at the time of his first appeal, and the issue under section 1172.6 dealt solely with liability under the felony murder theory or the natural and probable consequences theory of murder. Neither dealt with the constitutional issues regarding the failure of the prosecution to provide potentially exculpatory evidence or information in the first place.

The comments of the court in the course of considering the request under section 1172.1 suggest that the court did believe that there were constitutional issues with the conviction, and might have been willing to grant additional relief had it understood that section 1172.1 does, indeed, give it the authority to revisit the conviction. Therefore, we remand for the court to reconsider whether the defendant’s sentence should be recalled and reexamined under section 1172.1.

Further, the restitution fine must be stricken as more than 10 years old, and the court must recalculate the credit for time served.

First Holding:

Section 1172.1 is a statutory exception to the general rule that once a judgment is rendered and execution of the sentence has begun, the trial court does not have jurisdiction to vacate or modify the sentence. As amended effective January 1, 2024, section 1172.1(a) authorizes the court to recall a sentence and resentence the defendant on its own motion at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Section 1172.1 does not authorize the defendant to initiate the recall and resentencing process. The statute states: ‘A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.”

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1170-1171

Second Holding:

Section 1172.1(a)(2) instructs a trial court, when recalling and resentencing a defendant, to apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Trial courts may modify a defendant’s sentence to reduce the term of imprisonment. They may also vacate a defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of imprisonment.

The statute lists various postconviction factors trial courts must consider when recalling and resentencing a defendant. Those factors include the disciplinary record and record of rehabilitation of the defendant while incarcerated and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

A trial court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

Authority:

PEN 1172.1

Third Holding:

We review the superior court’s decision whether to recall a defendant’s sentence for abuse of discretion. To establish an abuse of discretion, a defendant must establish the court acted while unaware of the scope of its discretion, considered impermissible factors, or made a choice so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1175

People v. Olea (2025) 115 Cal.App.5th 889, 902–903

Fourth Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute. Section 1237(b) allows a defendant to appeal from any order made after judgment, affecting the substantial rights of the party.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1171

Fifth Holding:

Section 1172.1 does not give a defendant the right to make a motion or to appeal if the trial ignores the request or summarily denies it without taking action.

Craig held that a trial court’s order denying a request for resentencing under section 1172.1 was appealable after the trial court reviewed moving and opposition papers; looked at documents and case history, including letters of support, evidence of rehabilitation, and prison disciplinary records; heard argument from counsel at a hearing at which the defendant appeared remotely; and addressed the merits of the petition instead of denying it as unauthorized.

Olea held that a denial was appealable after the trial court followed similar steps, including appointing counsel for the defendant, ordering the release of subpoenaed records concerning the defendant’s behavior and activities in prison, and setting a contested hearing at which the defendant appeared remotely, the court heard argument, indicated it reviewed the record, and stated it believed the original sentence was just.

The situation before us is similar to that encountered in Craig and Olea, not to that in Hodge, and we hold that the decision to deny resentencing under section 1172.1 is appealable under these circumstances.

Authority:

People v. Hodge (2024) 107 Cal.App.5th 985, 991, 996, 999 [a trial court’s order declining to exercise its discretion to recall a defendant’s sentence was not appealable]

People v. Craig (2026) 117 Cal.App.5th 1165, 1171-1175

People v. Olea (2025) 115 Cal.App.5th 889, 901-902

Sixth Holding:

The trial court’s reasons for rejecting evidence that seriously undermined the conviction were impermissible. The court stated it was not its place to revisit the jury’s determination, even though section 1172.1 empowers the court to do just that. Under section 1172.1(a)(3)(B), when resentencing, a trial court may cacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, with the consent of the defendant. The court’s comments during the hearing very clearly indicated that it acknowledged the problems with the convictions as the defendant and his counsel described. The court did reduce the sentence substantially to the minimum for second degree murder.

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.

There is such a reasonable probability here, since the trial court seemed to feel constrained by the verdict and prior appeals, and never appeared to grapple with the gravity of the constitutional violations the defendant alleged, simply referring to them as a number of things that happened. We therefore agree with the defendant that a remand is warranted so that the trial court can exercise its discretion again. The trial court should explain its rationale regarding the defendant’s claims of violations of his constitutional rights and whether or not those claims justify a further reduction in the defendant’s sentence.

Authority:

PEN 1172.1(a)(3)(B)

People v. Mendoza (2022) 74 Cal.App.5th 843, 856

Seventh Holding:

The restitution fine was imposed more than 10 years ago and must be vacated under section 1465.9(d), which states 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.

Authority:

PEN 11465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 600–601, review granted on another issue and further action deferred Mar. 11, 2026, S289903

Eighth Holding:

The court did not recalculate the defendant’s time served, and the abstract still reflects the same number of days as awarded at his original sentence more than 15 years ago. The court should have recalculated the credit for time served.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29 [when resentencing a defendant, trial court must update the calculation of actual time served, whether before or after sentencing and in jail or prison]

People v. Dean (2024) 99 Cal.App.5th 391, 397 [Department of Corrections and Rehabilitation, not trial court, is responsible for calculating post-sentence credits other than actual time served]

Abstracts and Minutes

Case 001071

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly lists “2001” as the year the defendant committed the murder underlying the judgment. In fact, the shooting occurred in 2021. The abstract must be corrected.

Holding:

This date is a clerical error and we instruct the court to correct it.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [when there is a clerical error in the abstract of judgment, the appellate court itself should order the trial court to correct the abstract of judgment]

Abstracts and Minutes, Duty of the court, Plea bargains, Sentencing

Case 001063

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term. As we are remanding for a full resentencing, the parties may address their issues in the trial court with the accuracy of the abstract of judgment.

First Holding:

Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable cause.

Courts have recognized two exceptions to this certificate requirement. A certificate is not required for: (1) issues involving a search and seizure, the validity of which was contested under section 1538.5, and (2) issues regarding proceedings held after the plea for the purpose of determining the degree of the crime and the penalty to be imposed.

Regarding this latter category, the the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea.

Authority:

PEN 1237.5

People v. Buttram (2003) 30 Cal.4th 773, 780, 781-782, 785

Second Holding:

Where a defendant has agreed to a specified sentence in return for his or her plea, the defendant must obtain a certificate of probable cause to challenge the trial court’s imposition of that exact sentence on appeal.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 73, 78 [one who agreed to a specific sentence in return for his plea must obtain a certificate of probable cause in order to claim on appeal that the agreed sentence constitutes cruel and unusual punishment]

People v. Hester (2000) 22 Cal.4th 290, 295 [defendants are estopped from complaining of sentences to which they agreed]

Third Holding:

But where a defendant negotiates a plea term which provides for a maximum sentence, rather than a specified sentence, which necessarily contemplates further adversary proceedings in which the trial court must exercise its discretion to determine the appropriate sentence within the constraints of the bargain, a certificate of probable cause is not required because, in substance, the defendant’s appeal of the selected sentence is not an attack upon the plea itself.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 785

Fourth Holding:

The trial court erred by not staying the sentence on the felon in possession conviction (count 3) in Case B because the offense was based on the same act or course of conduct underlying the defendant’s hotel burglary conviction (count 1) for which the court imposed a six-year term.

The defendant was convicted of burglary by taking the firearm and then of possessing the firearm after she took it. Under these circumstances, there is a course of conduct pursuant to one criminal objective—to possess the firearm by stealing it from the hotel room—and based on that defendant cannot be punished for both offenses under section 654.

Authority:

PEN 654

People v. Atencio (2012) 208 Cal.App.4th 1239, 1239 [sec. 654 precluded punishment for both grand theft of a firearm and being a felon in possession of the same firearm]

People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [recognizing sec. 654 has been held to preclude punishment for both burglary and theft where the burglary is based on an entry with intent to commit that theft]

Fifth Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. At its simplest, section 654 proscribes double punishment for multiple violations of the Penal Code based on the same act or omission.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Previously, trial courts were required to impose the longest possible term when section 654 applied. In January 2022, the statute was amended to provide courts with discretion to select either the greater or the lesser term and stay execution of the remaining term.

(Gary note, of marginal historical interest at best–noted also in my summary of case 000855: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed. Now you know.)

Authority:

PEN 654(a)

People v. Atencio (2012) 208 Cal.App.4th 1239, 1243

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Sixth Holding:

A sentence in violation of section 654 is an unauthorized sentence that generally may be corrected on appeal without an objection by the defendant in the trial court. This general rule, however, is subject to an exception. Where a defendant has pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The exception does not preclude defendant from raising section 654 on appeal where the plea does not have the defendant agreeing to a specific term.

Authority:

Cal. Rules of Court, rule 4.412(b) [By agreeing to a specified term in prison personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654’s prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record]

People v. Hester (2000) 22 Cal.4th 290, 295

Seventh Holding:

When part of a sentence is stricken on review, on remand for resentencing, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. Upon remand, the trial court may revisit all of its sentencing choices in formulating an aggregate term, and must impose a sentence for each of defendant’s convictions.

Authority:

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [as commonly applied, the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

Eighth Holding:

Both parties agree that the abstract of judgment contains errors. They do not necessarily agree on the errors. Because we are remanding the case for a full resentencing hearing, which will necessitate a new abstract of judgment, we need not address the parties’ contentions regarding alleged errors in the current abstract. The parties may address any arguments regarding the correct amount of the fees and fines to the trial court during the resentencing hearing.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an abstract of judgment is not the judgment of conviction and does not control if it differs from the trial court’s oral pronouncement of judgment]

Abstracts and Minutes, Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 001061

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment erroneously reflects a fine of $300 that was not imposed by the trial court. It must be corrected. Further, the matter must be remanded for the court to give the defendant the opportunity to challenge the imposition of any fine as constitutionally.

First Holding:

As a general rule, when there is a discrepancy between the oral pronouncement of judgment and the trial court’s records, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

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

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

Second Holding:

While this appeal was pending, the California Supreme Court addressed the means by which a criminal defendant may challenge various payments typically imposed at sentencing. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution.

As to fines, Kopp did not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, Kopp clarified that an excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines” under either the federal or state Constitutions.

As to ancillary costs, Kopp clarified that an equal protection analysis is appropriate and held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

As to restitution, Kopp reiterated that crime victims have a right to secure restitution from the persons convicted of the crimes causing the losses they suffer.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 23, fn. 17, 30

Third Holding:

Because the defendant did not have the benefit of Kopp’s reasoning and did not invoke the excessive fines clauses in the trial court, consistent with Kopp, we remand to give him the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

Abstracts and Minutes, Elements of crime, Fines and fees, Sentencing

Case 001056

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly reflects a $120 court security fee and a $160 criminal conviction fee, instead of the $40 and $30 ordered by the court in its oral pronouncement. Further, on the attempted murder charge, the abstract must delete the reference to “First Degree,” because attempted murder is not separated into degrees. THe abstract of judgment must be corrected.

Holding:

The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. Accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification.

This court has the authority to correct clerical errors at any time.

Authority:

PEN 1213

People v. Mitchell (2001) 26 Cal.4th 181, 185-187

In re Black (1967) 66 Cal.2d 881, 890