Tag Archives: Abstract of judgment or minute order

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 § 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

Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.

We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

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

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

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

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

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

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Abstracts and Minutes, Sentencing

Case 001043

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment states that the defendant was sentenced to prison per “PC 1170(a) or 1170(h)(3) due to current or prior serious or violent felony.” The defendant has not committed a serious or violent felony.

Holding:

(Gary note: there was very little discussion by the court. It noted that the abstract was incorrect, because the defendant’s conviction did not qualify as a serious or violent felony. The court sought input from the parties, and the parties agreed that the abstract was wrong and needed to be corrected. The court so ordered. The court cited no authority for the correction of the abstract, so I have listed some of the cases that the court could have cited had it felt it necessary to cite authority to do what the parties both agreed needed to be done.)

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, Sentencing

Case 001025

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court failed to update the credit for time served. The abstract of judgment contains errors that must be corrected.

First Holding:

A trial court’s erroneous failure to award presentence custody credits is not waived by failure to object at trial because “the calculation of credits is not discretionary and there are no ‘choices. An incorrect award of presentence custody credits is an unauthorized sentence which may be corrected at any time.

Authority:

People v. Aguirre (1997) 56 Cal.App.4th 1135, 1138

People v. Gisbert (2012) 205 Cal.App.4th 277, 282

Second Holding:

Section 1237.1 provides that no appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.

Section 1237.1, however, does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal. There may be situations, like this case, where an appellate court may simply resolve the custody credits issue in the interests of economy.

Authority:

PEN 1237.1

People v. Acosta (1996) 48 Cal.App.4th 411, 420

People v. Mendez (1999) 19 Cal.4th 1084, 1101

People v. Jones (2000) 82 Cal.App.4th 485, 493

People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn 3

Third Holding:

The abstract of judgment reflects that the defendant was convicted of first degree burglary, but in fact he was convicted of second degree burglary. Further, the abstract of judgment reflects the sentence for count 5 as one-third the middle term, instead of the actual two years middle term. The abstract must be corrected.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. An appellate court has the authority to correct clerical errors.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-187 [appellate court may correct clerical errors on its own motion or upon application of the parties]

People v. Zackery (2007) 147 Cal.App.4th 380, 394 [same]

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

Abstracts and Minutes, Sentencing

Case 001021

Posted on by Gary McCurdy

Error and/or relief

There is an error in the abstract of judgment that requires correction.

Holding:

The trial court imposed and stayed section 12022.1 bail enhancements as to counts 4, 5, 6, and 7. The determinate abstract of judgment erroneously omits the section 12022.1 enhancement as to count 5.

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 of judgment must be corrected to reflect the sentence for the section 12022.1 enhancement on count 5, which the trial court stayed.

Authority:

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

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

Abstracts and Minutes, Sentencing

Case 001020

Posted on by Gary McCurdy

Error and/or relief

There is an error in the abstract of judgment that requires correction.

Holding:

The abstract reflects the sentence as 60 years to life, but the court pronounced the sentence as 50 years to life on the crime plus 10 years for the use of a firearm. The abstract must be corrected to reflect the oral pronouncement of judgment.

Authority:

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

Abstracts and Minutes, Sentencing, Statutory interpretation

Case 001014

Posted on by Gary McCurdy

Error and/or relief

Credit for time served should have been recalculated on resentencing following remand in an earlier appeal. There are errors in the abstract of judgment that require correction. We affirm that the defendant’s conduct credit is limited to 15%, even though the court struck the punishment for the enhancements responsible for making the felonies violent felonies.

First Holding:

Any portion of a sentence that a defendant has begun serving based on a judgment that is modified during the imprisonment term must be credited against any sentence the defendant later receives for the same acts.

The sentencing court must recalculate and, in the abstract of judgment, credit against the modified sentence the actual days spent in custody up to that date, plus the conduct credits accrued before the original sentencing.

The California Department of Corrections and Rehabilitation then calculates conduct credit for prison time after the original sentencing applying laws specific to persons serving terms in prison.

Authority:

PEN 2900.1

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 33

Second Holding:

Even though on resentencing the court struck the punishment for the enhancements that made the counts of conviction violent felonies as defined in section 667.5(c), the defendant’s conduct credit is still limited to 15% under section 2933.1, which limits conduct credit to 15% to “anyone who is convicted of a felony offense listed in subdivision (c) of section 667.5.”

Authority:

PEN 2933.1

Third Holding:

The definition of the term “convicted” in section 2933.1 is a question of statutory interpretation, which we review de novo.

Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statute’s words and give them a plain and commonsense meaning. We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.

If the statutory language is susceptible of more than one reasonable interpretation, we may look to extrinsic aids, including the statute’s ostensible purpose, the legislative history, public policy, administrative interpretation, and the pertinent statutory scheme. We will adopt the construction that is more favorable to the defendant but still aligns with the statutory purpose where the language of the statute is ambiguous.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141

People v. Murphy (2001) 25 Cal.4th 136, 142

In re M.M. (2012) 54 Cal.4th 530, 536

In re DeLong (2001) 93 Cal.App.4th 562, 568

People v. Manzo (2012) 53 Cal.4th 880, 889

Fourth Holding:

Section 2933.1 does not itself define “convicted,” and the term does not have a uniform meaning in California. It may include the corresponding judgment or refer solely to a verdict or guilty plea—in other words, to the adjudication of guilt. Section 2933.1(b) states the 15 percent limitation applies regardless of under which law the defendant is “sentenced.”

We presume the Legislature did not intend the term “convicted” to refer to a defendant’s “sentence” given its use of the two terms within the same statutory scheme. The court in Pacheco similarly held that striking the punishment associated with an enhancement does not defeat the finding of the truth of the allegation such that the defendant would still be a person “convicted of” a violent felony and subject to the 15 percent limit under section 2933.1. It is the conviction, and not the punishment, that is determinative.

Authority:

People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033

People v. Smith (2024) 100 Cal.App.5th 741, 760

In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445

Fifth Holding:

Dismissing or striking an earlier conviction under section 1385 impacts sentencing, but in this case the allegations were not struck or dismissed. Only the punishment was struck.

Authority:

People v. Burke (1956) 47 Cal.2d 45

Sixth Holding:

The minute order and abstract of judgment must be corrected to reflect the court’s oral pronouncement of judgment and the concurrent term imposed for reckless driving. The minute order and abstract of judgment do not reflect the trial court staying the term on count 6 in its original judgment, and should also reflect a two-year concurrent term on count 36. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

Seventh Holding:

The abstract reflects a concurrent one-third the middle term sentence for one of the counts. Concurrent sentences are calculated by using their full terms, not the one-third middle term formula for consecutive sentences. The minute order and abstract of judgment must therefore be corrected to impose a two-year concurrent sentence on count 36.

Authority:

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

Abstracts and Minutes, Jurisdiction, Probation Parole PRCS, Sentencing

Case 001013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in revoking the defendant’s probation after the period of probation had expired, because it no longer had jurisdiction once the probation period expired.

First Holding:

A trial court, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years.

Revocation is a two-step process. First, when presented with probable cause of a violation, a court may summarily revoke supervision and issue a bench warrant for the defendant’s arrest.

Second, the defendant is entitled to a formal hearing at which the prosecution must prove the violation and a disposition may be made. If the violation is found true, the court may, among other options, terminate supervision and order incarceration in jail, or it may reinstate supervision and modify the conditions, such as by imposing a period of jail incarceration.

Authority:

PEN 1203.1(a)

People v. Braud (2020) 56 Cal.App.5th 962, 966

Second Holding:

The revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, while the trial court has the power to extend the probationary term, tolling at the summary revocation stage does not automatically extend the probationary period but rather preserves the court’s jurisdiction to proceed to the second step, a formal hearing to decide whether there has been a violation during the probation period, after the probation period has expired.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 504)

People v. Braud (2020) 56 Cal.App.5th 962, 968

Third Holding:

The defendant was placed on two years probation. The parties disagree on whether probation expired in April or had been extended to a late August date. Although a minute order of a hearing held on a date in late August stated that it was revoked on a specific date a few weeks before the hearing, the court never stated that probation was revoked at a hearing.

A trial court’s oral pronouncements control over a subsequently entered minute order. Moreover, the minutes from that earlier hearing do not say probation was revoked. There was no reporter at that earlier hearing. Thus, the record does not support the assertion that probation was revoked at that early August hearing.

Instead, the record does reflect that the court purported to revoke probation two months later, in October. But whether probation was set to expire in April (as the defendant claimed) or in August (as the prosecution claimed), both dates had passed before the October hearing.

As the probation expiration date had passed (whether in April or August), the court no longer had jurisdiction to decide whether the defendant had violated probation.

Authority:

People v. Sanchez (2019) 38 Cal.App.5th 907, 918–919

People v. Braud (2020) 56 Cal.App.5th 962, 968


(Gary note: I recognize that this summary is inartfully worded, a product of my attempt to anonymize the participants. During the defendant’s probation, it was revoked and reinstated a number of times. At some point–whether April or August–probation expired during a period when there was no order revoking probation, summary or otherwise. Had the court timely summarily revoked probation before its term expired, it would have had jurisdiction over the case even after the term expired. By not putting the probation into a “revocation” mode, probation simply terminated when the expiration date arrived. At that point, the court lost jurisdiction to conduct revocation proceedings.)

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing, Standard of review

Case 001011

Posted on by Gary McCurdy

Error and/or relief

The court erred in ruling that the defendant was ineligible for resentencing under section 1172.75 because the abstract of judgment did not reflect any now-invalid prior prison term enhancements. The abstract of judgment was in error.

First Holding:

Before 2020, the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term’ the defendant had previously served for a felony. Effective January 1, 2020, the Legislature eliminated one-year prior prison term enhancements except in cases involving prior terms for sexually violent offenses.

In 2021 the Legislature enacted section 1172.75, which “made the change retroactive. Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Authority:

PEN 667.5(b)

People v. Rhodius (2025) 17 Cal.5th 1050, 1053-1054

Second Holding:

In section 1172.75(b), the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes such an enhancement. Section 1172.75(b) requires the California Department of Corrections and Rehabilitations to identify for the sentencing courts all persons currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(b) and (c)

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

Third Holding:

Where section 1172.75 applies, it requires full resentencing. Section 1172.75(d)(1) states that the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety, and further, resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

People v. Garcia (2024) 101 Cal.App.5th 848, 855 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.]

Fourth Holding:

We generally review a trial court’s decision under section 1172.75 for an abuse of discretion. Under an abuse of discretion standard, we review the trial court’s findings of fact for substantial evidence, consider whether the court’s rulings of law are correct, and determine whether the court’s application of the law to the facts is arbitrary or capricious. However, where the appeal from a resentencing order raises a question of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856, 857

People v. Espino (2024) 104 Cal.App.5th 188, 194 [reviewing de novo whether the word imposed as used in 1172.75 applies to cases where execution of a prior prison term enhancement was stayed], affirmed (2026) 20 Cal.5th 57

Fifth Holding:

The trial court’s oral pronouncement of judgment controls over a conflicting abstract of judgment. In this instance, the prior convictions were never stricken, and thus should have been reflected in the abstract of judgment. The defendant was eligible for resentencing under section 1172.75.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.]

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

Abstracts and Minutes

Case 001009

Posted on by Gary McCurdy

Error and/or relief

The trial court is ordered to amend the abstract of judgment to reflect that a concurrent term was imposed on count 2, that the stayed term on count 3 was a term of two years, and that Section 8, designating the “TOTAL TIME” imposed, is eight years.

Holding:

The abstract of judgment fails to properly reflect that the determinate term punishment for count 2 was ordered to be served concurrently with the indeterminate sentence, and it must be corrected.

(Gary note: The court cited no authority for its correction order, so I have listed some of several 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