Tag Archives: Abstract of judgment or minute order

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

Abstracts and Minutes

Case 001008

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not accurately reflect the sentence that was imposed, and must be corrected.

Holding:

The abstract of judgment reflects the a different term of imprisonment than was imposed by the court, and must be corrected.

(Gary note: The court cited no authority for its order to correct the abstract. I have listed some cases that affirm that the appellate court has the authority.)

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, Duty of the court, Sentencing

Case 001005

Posted on by Gary McCurdy

Error and/or relief

Section 654 barred punishment for the vandalism counts because those offenses involved the same course of conduct and objective as the attempted burglaries. We modify the judgment to impose concurrent terms on the three vandalism, stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment to reflect the corrected sentence

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute. 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.

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

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

When a trial court determines that section 654 prohibits multiple punishments, it must impose a sentence for the conviction for which punishment is disallowed but stay its execution. Dismissal or imposition of a concurrent sentence is prohibited.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

Third Holding:

While the trial court’s abstract of judgment properly stayed execution of punishment on vandalism two of the three counts subject to section 654, the abstract of judgment is not the judgment of conviction and does not control when it differs from the trial court’s oral judgment.

Here, the court’s language at sentencing was ambiguous: it said the vandalism counts would be “concurrent” and they “are 654” without expressly staying imposition of the concurrent sentences. Because the trial court verbally imposed an unauthorized sentence in violation of section 654, we direct that the abstract of judgment be corrected to the extent necessary to comply with section 654.

Authority:

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

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

Case 001003

Posted on by Gary McCurdy

Error and/or relief

The verdict form contained a typographical error regarding the appropriate subdivision on the use of firearm enhancement. The reference to subdivision (d) in the verdict from is stricken. There are several errors in the abstract of judgment and minute order that require correction.

First Holding:

A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. Technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.

Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. Here, inclusion of subdivision (d) in addition to subdivision (a) was clearly a clerical error, and must be stricken from the judgment.

Authority:

People v. Jones (2014) 230 Cal.App.4th 373, 378–379

People v. Webster (1991) 54 Cal.3d 411, 447

People v. Camacho (2009) 171 Cal.App.4th 1269, 1273

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

Second Holding:

The minute order fails to reflect that on motion by the prosecution the court dismissed the factors in aggravation. It must be corrected to reflect the dismissal. The abstract of judgment reflects that the defendant must pay [more than $10,000] to the Victim Compensation Board twice. The duplicate entry must be stricken from the abstract of judgment. There is an error on the abstract of judgment in reflect the determinate term where an indeterminate term has also been imposed, and the abstract of judgment must be corrected accordingly.

(Gary note: The court cited no authority for its orders directing the corrections, except for Wright, which it cited to demonstrate how the abstract should have been prepared. I have include some cases that the court could have drawn from as authority, had it felt it necessary.)

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is indeterminate, in section six, the determinate form CR-290 must show no time]

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, Appellate Principles, Fines and fees, Plea bargains, Sentencing

Case 000997

Posted on by Gary McCurdy

Error and/or relief

The approved plea agreement provided for dismissal of count II, but that count was not dismissed at sentencing. Further, the court failed to impose a suspended parole revocation fine matching the amount imposed as the restitution fine.

The judgment is modified to dismiss count II and impose a $300 parole revocation fine, which shall be suspended unless parole is revoked. As modified, the judgment is affirmed. The trial court is directed to amend the sentencing minute order to reflect this modification. However, because the abstract of judgment already reflects the $300 suspended parole revocation fine, no amendment of that document is necessary.

First Holding:

When a guilty or no contest plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 80

Second Holding:

When the trial court imposes a sentence that includes a period of parole, and it also imposes a restitution fine, a matching suspended parole revocation fine must be imposed. Omission of a mandatory parole revocation fine is an unauthorized sentence that we can correct on appeal.

Authority:

PEN 1202.45

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

Abstracts and Minutes

Case 000996

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains an incorrect date of the sentence and has incorrect numbers for the counts of conviction. It must be corrected.

Holding:

The trial court is directed to prepare a corrected abstract of judgment identifying the correct hearing dat, and in section 6.b., referencing counts 1, 2, and 6, rather than 1, 2, and 3.

(Gary note: The court listed no authority for its order to correct the abstract of judgment, so I have listed some cases below that 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, Fines and fees, Sentencing

Case 000995

Posted on by Gary McCurdy

Error and/or relief

This appeal is from the resentencing under section 1172.75. The restitution fine must be stricken, as now it was imposed more than 10 years ago. There are errors in the abstract of judgment that must be corrected.

First Holding:

The trial court originally imposed the restitution fine in August 2015. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated. While the court reimposed the $4,000 restitution fine less than 10 years after the original sentencing, 10 years have passed since the court originally imposed the $4,000 restitution fine, and thus the balance is now unenforceable and uncollectible. We will therefore strike the restitution fine.

Authority:

PEN 1465.9(d)

People v. Kopp (2025) 19 Cal.5th 1, 17

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted on a different issue Mar. 11, 2026, S295038

Second Holding:

The abstract lists the prior prison term enhancement as stayed, when in fact that enhancement was stricken by the trial court. In addition, the four-month sentence on count three is listed as concurrent when it should be listed as consecutive. We will therefore order amendment of the abstract to correct these errors

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral pronouncement of judgment ordinarily controls]

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000990

Posted on by Gary McCurdy

Error and/or relief

The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a restitution fine, a stayed parole revocation fine, a court operations assessment, and a criminal conviction assessment. The abstract of judgment must be corrected.

First Holding:

Where there is a discrepancy between the oral imposition of sentence on the one hand and the minutes and abstract of judgment on the other, the oral judgment controls. An abstract of judgment must be corrected if it does not reflect the oral judgment accurately.

Authority:

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

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

Second Holding:

The court did not orally pronounce any fines or fees at sentencing, but the minute order and abstract of judgment reflect the imposition of a $300 restitution fine, a $300 stayed parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment.

Authority:

PEN 1202.4

PEN 1202.45

PEN 1465.8

GOV 70373

Third Holding:

We decline to remand the matter because no party objected to the trial court’s failure to impose fines and fees at sentencing. All claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ raised for the first time on appeal are not subject to review. Appellate courts may not correct a discretionary sentencing choice if the People failed to object at sentencing.

A restitution fine under section 1202.4 is a discretionary sentencing choice. And by waiving any objection to the restitution fine, the People also effectively waive any objection to the parole revocation fine, because the parole revocation fine must match the restitution fine as a matter of law.

As to the court operations assessment and the criminal conviction assessment, neither party asserts that the trial court’s failure to impose these fees was unauthorized or reflects an obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings.

Absent such an argument, we decline to disturb the judgment.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852-853

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153

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

People v. Scott (1994) 9 Cal.4th 331, 354 [sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case]

People v. Kopp (2025) 19 Cal.5th 1, 30 [equal protection principles permit trial courts to waive fees under sec. 1465.8 and Gov. Code, sec. 70373, upon request, where defendant lacks ability to pay]

Authority:

ADD AUTHORITIES HERE

Duty of the court, Sentencing

Case 000988

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. The abstract must be corrected.

Holding:

The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. When resentencing results in a 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 new sentence. We will therefore direct the trial court to amend the abstract of judgment to reflect the defendant’s current custody and conduct credit.

Authority:

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

Gary Note:

(Gary note: It is not clear from the wording of the opinion whether absence of credit was because the trial court did not update the credits on resentence, or the clerk simply did not update the abstract of judgment to reflect the court ordered. Though the appellate court cited Buckhalter on the duty to recalculate, it cited no authority for correcting an erroneous abstract of judgment. For your convenience, I have listed below several cases the court could have drawn from as authority for an appellate court to order correction of an abstract of judgment.)

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