Category Archives: Abstracts and Minutes

Abstracts and Minutes

Case 000758

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment includes clerical errors which should be corrected to accurately reflect the trial court’s oral pronouncement. First, it reflects imposition of a restitution fine without also indicating that the court stayed the fine. Second, it incorrectly states the sentence imposed by the court.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Courts have the inherent power to correct such clerical errors, either on their own motion or upon the application of the parties.

Authority:

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

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error]

Abstracts and Minutes, Sentencing

Case 000753

Posted on by Gary McCurdy

Error and/or relief

Three of the protective orders issued by the trial court under section 136.2 exceeded the court’s authority and should be vacated. There is a clerical error in the defendant’s abstract of judgment that requires correction.

First Holding:

Restraining orders under section 136.2 are authorized only for victims of certain specified offenses including certain domestic violence crimes, sexual offenses like rape, gang-related crimes, or crimes requiring registration as a sex offender. Three of the people for whom a protective order was issued were not victims of the defendant’s crimes, and the trial court lacked jurisdiction to issue those orders.

Authority:

People v. Robertson (2012) 208 Cal.App.4th 965, 996

Second Holding:

Issuance of a restraining order in excess of jurisdiction can be corrected at any time.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381–382

Third Holding:

The abstract of judgment erroneously states that the punishment on the special circumstance was stayed. It was not stayed and the abstract of judgment must be corrected.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185–188

Abstracts and Minutes, Fines and fees

Case 000751

Posted on by Gary McCurdy

Error and/or relief

The trial court having resentenced the defendant under section 1172.75, the matter is remanded for the trial court to determine the credit for time served and for correction of the abstract of judgment.

First Holding:

When a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody up to that time, including his time in custody after the original sentencing. Thus, the matter should be remanded for defendant’s custody credits to be recalculated, and the abstract of judgment should be amended accordingly.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody]

Second Holding:

The section 1202.4(b) restitution fine in the amount of $800 listed on the abstract of judgment filed after the resentencing hearing should be stricken, since the court granted his request to strike all fees and fines, except for direct victim restitution.

(Gary note: The court cited no authority for its order to correct the abstract of judgment. I have listed some of the 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

Case 000744

Posted on by Gary McCurdy

Error and/or relief

The abstracts of judgment are inconsistent with the sentencing court’s oral pronouncement of judgment. We will order the abstract of judgment corrected to reflect the trial court’s imposition and stay of a $300 restitution fine, and its waiver of the $80 court security fee and $60 criminal conviction assessment fee. We will further order the determinate abstract of judgment corrected to reflect that the defendant was convicted by jury (not by plea) of count 2 (arson).

Holding:

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

Authority:

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

Abstracts and Minutes, Fines and fees

Case 000739

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing, the trial court imposed a $300 restitution fine under section 1202.4, but because defendant is serving terms of LWOP, the court did not impose a parole revocation restitution fine under section 1202.45. The minute order and abstract of judgment, however, reflect a parole revocation restitution fine was imposed and suspended. They must be corrected.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls, and we may correct a clerical error in recording the judgment at any time. Consequently, we will direct the trial court to correct the minute order and abstract of judgment to omit reference to imposition of a parole revocation restitution fine under section 1202.45.

Authority:

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

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

Abstracts and Minutes

Case 000730

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment misstates the actual sentence imposed and must be corrected.

First Holding:

Initially, the defendant’s aggregate 42-years-to-life sentence consisted of seven years to life for the attempted murder, plus 10 years for the gang enhancement, and 25 years to life for the gun enhancement. In the defendant’s prior appeal, we modified the sentence as follows: the term specified for count 1 is modified to provide for a term of life with possibility of parole. For the gang enhancement, the 10-year term is stricken; instead, the judgment shall provide that defendant shall not be paroled until a minimum of 15 calendar years has been served. We made no change to the 25 to life firearm enhancement.

The abstract of judgment does not reflect the sentence actually imposed. For clarity, the amended abstract of judgment should be modified as follows: the term specified for attempted premeditated murder on count 1 is modified to provide for a term of life with the possibility of parole. For the gang enhancement under section 186.22(b)(1)(C), the 10-year term is stricken, and defendant shall not be paroled until a minimum of 15 years has been served. For the gun enhancement in violation of section 12022.53(d), the term is 25 years to life. Defendant’s aggregate sentence is 32 years to life with parole eligibility after 40 years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [courts may correct clerical errors at any time, and may order the correction of abstracts of judgment that do not accurately reflect the sentence imposed]

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000725

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment fails to reflect the total credit for time served as of the date of resentencing. It must be corrected accordingly.

First Holding:

(Gary’s note for context: The abstract of judgment following resentencing under section 1172.75 listed only the credit for time served ordered originally in 1989. The order in this Case 000725 directs that the abstract of judgment be corrected, but in fact, it was the trial court that declined to recalculate the credit for time served, leaving it up to the Department of Corrections. The case authority cited by the court–Buckhalter–does state that the court has a duty to recalculate the credit for time served when a person is resentenced.)

The amended abstract of judgment fails to reflect the appropriate calculation of custody credits for time already served by the defendant. The judgment is affirmed subject to the clerk correcting the abstract of judgment upon remand to award the defendant [more than 13,000] days of custody credit.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Second Holding:

(Gary’s second note: It is not a win for the defendant, but there was another abstract of judgment error, this time understating the sentence that was imposed.

(The court ordered that, in addition to reflecting the revised credit for time served calculation, the abstract must reflect that the sentence was enhancement by two years for a firearm use enhancement that was omitted from the calculation of the sentence. The error omitting the enhancement was merely a repeat of the erroneous abstract more than 30 years earlier, which also failed to reflect the enhancement despite the court’s oral imposition of it.

(Though not a win for the defendant, I’m including this information because it once again demonstrates the importance of checking abstracts of judgment. While this one favored the defendant until the Court of Appeal spotted the error, many, many errors in abstracts reflect harsher treatment of the defendant than actually imposed by the court. Also, the court cited no authority for correction of the abstract, but I have listed several cases here that the court could have cited.)

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, Appellate Principles, Sentencing

Case 000724

Posted on by Gary McCurdy

Error and/or relief

The victim restitution award for expenses paid by the Victim Compensation Board violates the defendant’s right to due process and is reversed because the prosecution did not present bills to establish the amount paid as required pursuant to section 1202.4(f)(4)(B). The matter is remanded for the court to hold a new restitution hearing. Additionally, The abstract of judgment should be corrected to reflect the defendant was sentenced to 40 years to life (rather than 50 years to life).

First Holding:

The only evidence presented at the restitution hearing was the set of California Victim Compensation Board forms submitted by the prosecution, over the objection of counsel. No certified copies of the bills were introduced, nor was a declaration under penalty of perjury by the custodian of records. Restitution for expenses paid by the California Victim Compensation Board requires proof established by copies of bills submitted to the Board, reflecting the amount paid, pursuant to section 1202.4(f)(4)(B).

Authority:

PEN 1202.4(f)(4)(B)

Second Holding:

In California, crime victims have the right to receive restitution for losses attributable to the defendant’s actions. Indeed, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property. This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.

When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.

Authority:

Cal. Const. art. I, sec 28(b)(13)(B)

PEN 1202.4(a)(1)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320

Third Holding:

However, section 1202.4(f)(4) includes special provisions that are applicable when, as here, state funds are used to provide assistance to or on behalf of a victim.

The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation.

Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.

The section 1202.4(f)(4)(B) restitution order lacks the necessary evidentiary support and must be vacated and the case remanded for a new restitution hearing.

Authority:

PEN 1202.4(f)(4)

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The abstract of judgment states defendant was sentenced to a term of 50 years to life on count 1. It also reflects defendant was sentenced to 25 years on the section 12022.53(d) enhancement. However, defendant was sentenced to 15 years to life on count 1 and 25 years to life for the section 12022.53(d) firearm enhancement.

When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties. On remand, the trial court is instructed to prepare a corrected abstract of judgment.

Authority:

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 000719

Posted on by Gary McCurdy

Error and/or relief

Although the trial court did not orally impose any fines or fees at sentencing, the minute order and abstract of judgment include a $300 restitution fine, a $300 parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. The abstract of judgment and the minute order must be corrected to reflect the oral pronouncement of judgment.

First Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes and abstract of judgment cannot add anything substantive to the oral pronouncement. 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. If the clerk includes fines or fees in the minute order or abstract of judgment that were not orally imposed, those fines and/or fees must be stricken from the minute order and abstract.

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, 385-390

People v. Rowland (1988) 206 Cal.App.3d 119, 124

Second Holding:

A restitution fine under section 1202.4 need not be imposed if the trial court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Thus, a restitution fine under section 1202.4 is a discretionary sentencing choice. A corresponding parole revocation fine is mandatory only if a restitution fine is imposed. Although the People argue the judgment should be modified to include the omitted fines, they did not object to the omission at sentencing.

Authority:

PEN 1202.4(b)

People v. Tillman (2000) 22 Cal.4th 300, 302, 303

People v. Smith (2001) 24 Cal.4th 849, 853

Third Holding:

The court operations assessment and criminal conviction assessment are both mandatory, and we may address such an omission because the failure to impose them results in an unlawful sentence. The judgment is modified to impose a $40 court operations assessment and a $30 criminal conviction assessment. The trial court is directed to correct the sentencing minute order and abstract of judgment to omit the $300 restitution fine and the $300 parole revocation fine, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Authority:

PEN 1465.8

GOV 70373

People v. Smith (2001) 24 Cal.4th 849, 853

Abstracts and Minutes

Case 000713

Posted on by Gary McCurdy

Error and/or relief

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

Holding:

The abstract of judgment contains a clerical error. In section 2 concerning enhancements, the abstract of judgment shows a sentence of 10 years for the firearm enhancement on the robbery count. That portion of the sentence should be in parentheses—the designation commonly used for concurrent terms—because the trial court imposed the sentence on count 2 to be served concurrently to the sentence on count 1. Accordingly, we direct the trial court to correct the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may correct clerical errors in an abstract of judgment]

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

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

People v. Ware (2022) 14 Cal.5th 151, 167

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

People v. Collins (2025) 17 Cal.5th 293, 307–308

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

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

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

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

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Andra (2007) 156 Cal.App.4th 638, 640

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

People v. Mitchell (2026) 19 Cal.5th 729

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

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