Category Archives: Sentencing

Abstracts and Minutes, Sentencing

Case 001087

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the abstract of judgment fails to reflect the credit for time served ordered by the court, and it must be corrected.

Holding:

The abstract of judgment must be corrected to reflect an additional (more than 3400) days of custody credits, as ordered by the trial court. It does not reflect the days ordered by the court for the time since the original sentencing, and it overstates the conduct credit that was originally ordered by 200 days.

In the event of a discrepancy between the oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls. It follows that we must correct the discrepancy by ordering the trial court to modify the minute order. Accordingly, the amended abstract of judgment must be corrected to reflect the correct number of prior credits and to add the additional (more than 3400) days.

Authority:

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

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

Abstracts and Minutes, Sentencing

Case 001086

Posted on by Gary McCurdy

Error and/or relief

There is a discrepancy between the trial court’s oral pronouncement and the abstract of judgment. It must be corrected.

Holding:

The abstract of judgment indicates that the trial court imposed a $40 court operations assessment and a $30 criminal conviction assessment. The trial court did not orally impose either assessment. When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. We have inherent authority to correct errors to accurately reflect the “oral judgments of sentencing courts. We order the abstract of judgment corrected to conform to the trial court’s oral pronouncement of judgment.

Authority:

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

Abstracts and Minutes, Sentencing

Case 001085

Posted on by Gary McCurdy

Error and/or relief

The sentencing minute order and the abstract of judgment does not reflect the oral pronouncement of judgment and must be corrected.

Holding:

The minute order and the abstract of judgment reflect that the total of the sentence was three years instead of the orally pronounced two years. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. A minute order or abstract of judgment that does not accurately reflect the oral judgment of the trial court may be corrected on appeal.

Authority:

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

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 001083

Posted on by Gary McCurdy

Error and/or relief

There are errors in the abstract of judgment that must be corrected.

Holding:

The abstract of judgment includes an “x” in boxes 6(b) and 6(d), which appear to have been checked in an attempt to reflect the sentence of 25 years to life on the firearm enhancement imposed under section 12022.53(d). But boxes 6(b) and 6(d) are intended to reflect indeterminate sentences imposed on crimes, not enhancements, and the sentence for the firearm enhancement is reflected in the “Enhancements” section of the abstract of judgment.

The abstract of judgment reflects that a $1,000 restitution fine was imposed in “Case B.” The trial court imposed a $1,000 restitution fine under section 1202.4(b), which is reflected on the abstract of judgment, but there is no “Case B” here.

The abstract of judgment does not reflect that the trial court imposed a suspended $1,000 parole revocation fine.

The trial court is directed to correct these errors.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]

Equal protection, Fines and fees, Sentencing

Case 001081

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in staying the assessments imposed under Government Code section 70373 and section 1465.8, which require imposition of a $30 and $40 fee per felony conviction, respectively. Accordingly, we shall strike the court operations and court facilities assessments.

Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations or court facilities assessment pursuant to Government Code section 70373 and Penal section 1465.8.

Having found that the defendant had no ability to pay these assessments, the court should not have imposed and stayed them, but rather should have stricken them. No similar differences justify denying criminal defendants the right to seek a waiver of certain ancillary costs when civil litigants facing the same costs may receive such a waiver.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30 [given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment]