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Abstracts and Minutes, Sentencing

Case 001138

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment lists the amount of the criminal conviction fee and the court operations fee as $600 and $800, respectively, whereas the court ordered $90 and $120, respectively. The abstract must be corrected.

Holding:

In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. Where, as here, the Attorney General or defendant identifies an evident discrepancy between the abstract of judgment and the judgment that the reporter’s transcript reflect, the appellate court itself should order the trial court to correct the abstract of judgment.

Authority:

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

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

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

Sentencing

Case 001137

Posted on by Gary McCurdy

Error and/or relief

When section 654 applies, the term for the stayed sentence must be full term, not one-third the middle term. Remanded for the court to impose the full term on the stayed count.

Holding:

Under section 654, the trial court imposed and stayed eight months one of the counts, calculated as one-third the middle term of two years. The term imposed and stayed under section 654 must be a full term. This error resulted in an unauthorized sentence.

Authority:

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197–1198

Abstracts and Minutes, Sentencing

Case 001136

Posted on by Gary McCurdy

Error and/or relief

The clerk incorrectly listed the indeterminate sentence information and the determinate sentence information on a single abstract of judgment that was designed for indeterminate sentences. The clerk is directed to prepare an abstract of judgment for the indeterminate sentence on the correct form for indeterminate sentences and a separate abstract of judgment on the correct for for determinate sentences.

Holding:

The trial court incorrectly recorded both the determinate and indeterminate portions of appellant’s sentence in a single abstract of judgment. The trial court is directed to prepare amended abstracts of judgment that record the determinate sentences on Judicial Council form CR-290 and the indeterminate sentences on Judicial Council form CR-292. The trial court shall then forward the amended abstracts of judgment to the appropriate entities.

Authority:

Judicial Council form CR-292 (for indeterminate sentences)

Judicial Council form CR-290 (for determinate sentences

Amelioration, Gary Musings, Sentencing

Case 001135

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in concluding that the defendant was ineligible for resentencing under section 1172.75 because the original trial court struck the punishment for his now-invalid prior prison term enhancement.

Holding:

As of January 1, 2020, SB 136 amended section 667.5(b) to eliminate sentence enhancements for prior prison terms unless the enhancements related to prior terms for sexually violent offenses. The purpose of the statute is to reduce the societal and fiscal burdens of incarceration by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses. Section 1172.75(a), which was added to implement SB 136, states that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid.

Under Rhodius and Espino, section 1172.75 applies whenever an enhancement under section 667.5(b) was imposed prior to January 1, 2020, even if the court stayed or struck the punishment for it.

Authority:

PEN 667.5(b)

People v. Coddington (2023) 96 Cal.App.5th 562, 567

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Espino (2026) 20 Cal.5th 57

Gary Musings:

The above language “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” is a bit looser maybe than it should be. Subdivision (b) was indeed amended, and the subdivision (b) now applies only if the offense was a sexually violent offense as defined in Welfare and Institutions Code section 6600(b).

Keep your eyes on the prize here, though. SB 136 did not eliminate prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” as stated in the opinion. It eliminated only those specified in subdivision (b), except for the specified sexually violent offenses.

But SB 136 did NOT eliminate the three-year enhancement specified in section 667.5(a) for any qualifying prior prison terms served for the violent felonies listed in subdivision (c), which itemizes at least 24 crimes and circumstances that give rise to the status as “violent felony.”

I have seen that “by eliminating prior-prison-term enhancements for all prior crimes except for sexually violent offenses” language in other unpublished opinions, and it is a direct quotation from Rhodius itself, at p. 1054. I understand the context because section 1172.75 pertains only to enhancements under subdivision (b).

But I fear that maybe an attorney new to the field might read too much into that phrase. Hence, this Gary Musings to help keep such quick readers from straying. Though Rhodius does use the phrase “all prior crimes” in its fourth paragraph, it more specifically describes the effect of SB 136 in its first paragraph, where it says, “Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses.” (I.e., referring only to the 667.5(b) enhancements.)

The Legislative Counsel’s Digest characterizes the amendment as follows:

“Existing law imposes an additional 3-year sentence for each prior separate prison term served by a defendant where the prior and current offense was a violent felony, as defined. For other felonies, existing law imposes an additional one-year term for each prior separate prison term or county jail felony term, except under specified circumstances.

“This bill would instead impose that additional one-year term served for each prior separate prison term served for a conviction of a sexually violent offense, as defined.”

By using the language  “that additional one-year term served …” in the second paragraph, the Leg Counsel’s digest makes it clear that only the subdivision (b) category has been affected.  It says nothing about the three-year term imposed under section 667.5(a) for violent felonies as defined in subdivision (c). 

The phrase regarding eliminating prior-prison-term enhancements for “all prior crimes except for sexually violent offenses” appears nowhere in SB 136.

So with eyes wide open, recognize that enhancements for prior prison terms for violent felonies described in section 667.5(c) are alive and well.

Appellate Principles, Jury trial

Case 001134

Posted on by Gary McCurdy

Error and/or relief

The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).

Holding:

The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.

These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.

Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.

For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474

People v. Trotter (1992) 7 Cal.App.4th 363, 370