Category Archives: Abstracts and Minutes

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

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

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Coleman (1989) 48 Cal.3d 112, 162

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, 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. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Abstracts and Minutes, Sentencing

Case 000809

Posted on by Gary McCurdy

Error and/or relief

The court miscalculated the credit for time served and gave the defendant one less than he earned. That abstract of judgment msut be corrected as well.

Holding:

The trial court awarded defendant 278 days of actual custody credit and 278 days of conduct credit, for a total of 556 days. However, defendant was arrested on February 21, 2024 and sentenced on November 25, 2024. The court therefore should have awarded him 279 days of actual custody credit, and 278 days of conduct credit, for a total of 557 days of presentence custody credit. The minute order and abstract of judgment both credit defendant 279 actual days and 278 conduct days but nevertheless record 556 as the total number of days. Accordingly, we will order the judgment modified to reflect the correct number of total credit days.

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1457

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Abstracts and Minutes, Sentencing

Case 000806

Posted on by Gary McCurdy

Error and/or relief

The minute orders must be corrected to reflect that the court orally ordered 32 months as the term of probation, not the 36 months recorded in the minute order.

Holding:

The trial court must pronounce judgment in open court and on the record. The trial court is generally required to include all aspects of a judgment in its oral pronouncement of judgment. Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error. The abstract of judgment 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. We may correct a court’s written order or judgment that does not accurately reflect its oral pronouncement

Authority:

PEN 1193

PEN 1202

People v. McGahuey (1981) 121 Cal.App.3d 524, 530

People v. Leon (2020) 8 Cal.5th 831, 855

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

People v. Mesa (1975) 14 Cal.3d 466, 471

Abstracts and Minutes, Sentencing

Case 000805

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the oral pronouncement of judgment.

Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. Generally, the oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. We therefore “remand the matter to the trial court to delineate any fines and fees imposed, and their statutory bases.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Abstracts and Minutes, Fines and fees, Sentencing

Case 000797

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment mistakenly reflects that the trial court imposed financial obligations for court operations and conviction assessments and the abstract erroneously indicates the restitution fines were not stayed. It must be corrected.

First Holding:

The trial court stated a compelling reason for staying an otherwise mandatory restitution fine: any income the defendant earned would be better directed toward paying the direct restitution to the victim that the court did order.

Authority:

People v. Mercer (1999) 70 Cal.App.4th 463, 467 [we draw all inferences in favor of the judgment]

Second Holding:

The abstract of judgment shall be corrected to reflect that the trial court stayed the section 1202.4, subdivision (b), restitution fines, and the financial obligations from the court operations and conviction assessments shall be struck. (Gary note: the court cited no authority for ordering the correction of the abstract of judgment, but there are many cases it could have relied on. I have set forth a few below for your convenience.)

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

Case 000793

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains an error that must be corrected.

Holding:

Our review of the record reveals a discrepancy between the trial court’s oral pronouncement and the abstract of judgment. Specifically, the abstract of judgment indicates that the trial court lifted the stay on the mandatory probation revocation fine of $300 after revoking defendant’s probation. The trial court’s oral pronouncement did not address a probation revocation fine nor lift a stay on a probation revocation fine.

Moreover, a probation revocation fine under section 1202.44 was never imposed in defendant’s probation case. Therefore, there was no probation revocation fine for which a stay could be lifted. 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 have inherent authority to correct errors to accurately reflect the “oral judgments of sentencing courts. Accordingly, we strike the $300 probation revocation fine (sec. 1202.44) included in the abstract of judgment. We order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment.

Authority:

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

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

Abstracts and Minutes

Case 000775

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains errors in conflict with the oral pronouncement of judgment, and it must be corrected.

Holding:

We direct the trial court to correct the errors in the abstract of judgment.

Authority:

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

Abstracts and Minutes, Sentencing

Case 000772

Posted on by Gary McCurdy

Error and/or relief

In light of  Kopp, which was decided while this appeal was pending, we will remand for reconsideration of the restitution and parole revocation fines.

First Holding:

We note that the abstract of judgment indicates that the restitution and parole revocation fines were $300 each, yet the trial court in its oral pronouncement imposed restitution and parole revocation fines of $1,800 each. Ordinarily, the oral pronouncement of judgment controls.

Authority:

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

Second Holding:

Here, however, the trial court imposed a restitution fine (and corresponding parole revocation fine) exceeding the statutory minimum before the recent guidance issued by the Supreme Court in Kopp. Because the record is silent as to whether the trial court considered the defendant’s ability to pay or any other excessive fine factor, we will vacate those fines and remand for further proceedings in light of Kopp.

Authority:

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

Abstracts and Minutes, Sentencing

Case 000769

Posted on by Gary McCurdy

Error and/or relief

The final abstract of judgment does not accurately reflect the defendant’s custody credits. We remand the matter with instructions to modify the final abstract of judgment.

First Holding:

When a defendant is resentenced following an appellate sentence remand, the sentencing court must determine all actual time the defendant has already served and recalculate the defendant’s actual custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Second Holding:

The court determined that the defendant was in custody for [period A, more than 240 days] from arrest to original sentencing, and [period B, more than 1,000 more days] between the sentencing and resentencing hearings. The two numbers should have been added together to arrive at the total credit for time served. The abstract, however, treated the two numbers separately, listing the larger number [period B] as actual days in custody and the smaller number [period A] as conduct credits instead of actual days in custody, resulting in a failure to reflect an additional [more than 35 days] of conduct credit on [period A]. We direct the court to prepare an amended abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]

Abstracts and Minutes, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000767

Posted on by Gary McCurdy

Error and/or relief

We find that the evidence was sufficient to support the conviction for discharging a firearm for the benefit of a criminal street gang.

However, the defendant cannot be convicted of both discharging a firearm at a motor vehicle and grossly negligent discharge of a firearm at a motor vehicle, and the abstract of judgment must be corrected to list the enhancements found true.

First Holding:

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. Resolving conflicts and inconsistencies in the testimony is the jury’s exclusive province.

We do not redetermine the weight of the evidence or the credibility of witnesses. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Young (2005) 34 Cal.4th 1149, 1181

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

The reviewing court need not address assertions of conflicts in the evidence or alternative theories regarding the inferences that should have been drawn from the evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. This is true for both direct and circumstantial evidence.

In this case, a reasonable jury could have found that the actions of the defendant were gang related and for the benefit of a gang.

Authority:

People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Letner and Tobin (2010) 50 Cal.4th 99, 162

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Manibusan (2013) 58 Cal.4th 40, 87

People v. Thompson (2010) 49 Cal.4th 79, 113

Third Holding:

The crime of grossly negligent discharge of a firearm which could result in injury or death (sec. 246.3(a)) is a lesser included offense of discharging a firearm at a motor vehicle (sec. 246).

Although section 954 provides that a single act or course of conduct can lead to convictions of any number of the offenses charged, the courts have created an exception to this rule where multiple convictions are based on necessarily included offenses.

In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded that the only difference between the two crimes, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant’s firing range.

All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246. Therefore, we shall reverse defendant’s conviction on the count alleging grossly negligent discharge of a firearm.

Authority:

PEN 954

People v. Ramirez (2009) 45 Cal.4th 980, 984–985

Fourth Holding:

The abstract of judgment fails to accurately reflect the sentence orally pronounced by the trial court. Courts may correct clerical errors at any time, and appellate courts (including this one) 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

Abstracts and Minutes, Amelioration, Appellate Principles

Case 000761

Posted on by Gary McCurdy

Error and/or relief

Though we dismiss the appeal as from an nonappealable order, we remand to the trial court for correction of the abstract of judgment, which contains several significant errors in recording the sentence that was imposed. The abstract incorrectly identified the stayed 10-year enhancements as imposed pursuant to section 12022.53(d), rather than section 12022.53(b). The abstract also failed to reflect that the 25 years to life firearm enhancement attached to the attempted robbery.

First Holding:

The court has the authority to remand the matter to the lower court for correction of an abstract of judgment even if it dismisses the appeal itself.

Authority:

People v. Hibbard (1991) 231 Cal.App.3d 145, 150 [dismissing appeal but remanding to correct abstract of judgment]

People v. Navarro (2008) 161 Cal.App.4th 1100, 1105-1106 [same]

Second Holding:

Section 1172.1 permits a court to resentence the defendant after conviction. But the request must come from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

The court may recall the sentence on its own motion within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law. Though a defendant may invite the court to recall the sentence under section 1172.1, the defendant does not have a right to file a petition seeking the relief. If the defendant requests consideration for relief under the section, the court is not required to respond.

Authority:

PEN 1172.1

Third Holding:

If the request for resentencing is initiated by invitation or request of the defendant, the defendant has no right to appeal the denial or inaction by the trial court. An order declining to act on a defendant’s unauthorized section 1172.1 petition is nonappealable.

Authority:

People v. Roy (2025) 110 Cal.App.5th 991, 998

People v. Hodge (2024) 107 Cal.App.5th 985, 996

People v. Faustinos (2025) 109 Cal.App.5th 687, 693

Fourth Holding:

Although the defendant attached a letter from a CDCR correctional case records analyst, that letter merely pointed out a potential error with the abstract of judgment and in no way used the words “recall” or “resentence” or otherwise invoke section 1172.1; such a letter does not constitute a recommendation by the Secretary.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 987 [a CDCR letter was not a qualifying recommendation where it was from a case records manager, not the secretary]

People v. Magana (2021) 63 Cal.App.5th 1120, 1125

People v. Humphrey (2020) 44 Cal.App.5th 371, 373 [letter from CDCR stating abstract of judgment may be in error did not invoke the court’s authority under section 1170–the predecessor to what is now section 1172.1]

Abstracts and Minutes, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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