The abstract of judgment must be corrected to reflect that the sentence was enhanced under section 12022(a) (armed with a firearm) and not under section 12022.5 (use of firearm).
The appellate court may direct the trial court to correct clerical errors in an abstract of judgment.
People v. Mitchell (2001) 26 Cal.4th 181, 185
The minute order incorrectly states the court ordered defendant to pay various fines and fees, whereas the court actually struck all applicable fines and fees. It must be corrected.
After defendant entered the plea agreement and the court placed him on probation, it ordered the applicable fines and fees stricken. The minute order from the plea hearing incorrectly reflects that the court imposed various fines and fees. Respondent agrees with defendant that the minute order should be corrected to show the fines and fees were stricken. This appears to be a clerical error, which we will direct the superior court clerk to correct.
People v. Schultz (1965) 238 Cal.App.2d 804, 80
In re Candelario (1970) 3 Cal.3d
It is improper for a trial court to delegate to a probation officer whether to require a probationer to undergo residential substance abuse treatment.
In resolving whether a clerk’s transcript or the reporter’s transcript controls in the event of a conflict, we do not apply a mechanical rule in favor of the reporter’s transcript but instead consider the circumstances of each particular case to determine which portion of the record because of its origin and nature or otherwise, is entitled to greater credence. F
or reasons we explain below, in this case, we conclude that the clerk’s transcript best reflects the trial court’s intention to delegate to a probation officer whether to require the defendant to attend residential treatment. In this case the clerk’s minutes note that some of the probation conditions are set out in the probation order. Provision number nine of that order provides, “Complete a program of residential treatment and aftercare if directed by the probation officer.” The reporter’s transcript, however, with respect to this condition, states only, “Plead [sic] to any kind of treatment or aftercare if directed by probation.” We must determine which of the two versions reflects the court’s true intention.
People v. Smith (1983) 33 Cal.3d 596, 599
As a general rule, courts will attempt to harmonize the record if a conflict exists. Historically, when a conflict between the court’s oral pronouncement and the written record could not be resolved, the oral pronouncement was given preference However, the modern rule is that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.
People v. Smith (1983) 33 Cal.3d 596, 599
People v. Contreras (2015) 237 Cal.App.4th 868, 880
People v. Pirali (2013) 217 Cal.App.4th 1341, 1346
With respect to the type of record at issue here, when evaluating a court’s oral pronouncement of probation conditions, a thorough explanation of the conditions is not necessary if the defendant knows what the proposed conditions are. Therefore, the oral pronouncement may be less detailed than the probation order. In this instance, it is clear that the court summarized the conditions of the probation as outlined in the probation order proposed by the probation officer. We conclude that the court intended to adopt the language proposed, to the extent that it did not modify the language (as it did with some proposed conditions. We therefore conclude that the minute order and the probation order are to be given “greater credence” than the oral pronouncement in determining the applicable probation condition under review.
People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [recital of probation conditions in court is unnecessary because conditions are spelled out in detail in the probation order]
People v. Smith (1983) 33 Cal.3d 596, 599
The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by the Constitution. Trial courts have the authority to determine if a defendant is eligible for probation and if so, which conditions would be appropriate under the circumstances. By ordering probation, a court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.
Accordingly, a court may require a defendant to complete a residential treatment program, even though it would place a significant burden on a defendant’s liberty interests. A probation officer, on the other hand, has discretion to oversee and enforce the trial court’s orders. The probation officer may not create conditions not expressly authorized by the court.
Cal. Const., art. III, sec. 3
PEN 1203
People v. Olguin (2008) 45 Cal.4th 375, 379
People v. Pirali (2013) 217 Cal.App.4th 1341, 1350
People v. Smith (2022) 79 Cal.App.5th 897, 903
People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358
It is an unconstitutional delegation to the probation officer to decide whether the defendant needed to complete residential treatment, as opposed to an outpatient program. Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment.
People v. Smith (2022) 79 Cal.App.5th 897, 905
Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.
This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.
We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.
People v. Smith (2005) 37 Cal.4th 733, 738
People v. Zamudio (2008) 43 Cal.4th 327, 357
People v. Hill (1998) 17 Cal. 4th 800, 849
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.
PEN 211
People v. Cooper (1991) 53 Cal.3d 1158, 1165
People v. Hayes (1990) 52 Cal.3d 577, 626-627
An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.
People v. Navarette (2003) 30 Cal.4th 458, 499
Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.
Rules of Court rule 8.204(a)(1)(B)(C)
People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and 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
The abstract of judgment contains several errors and must be corrected.
The abstract of judgment mistakenly included a $40 court operations assessment and a $30 conviction assessment, neither of which the court imposed, and it misidentified the defendant’s custody credits to have been awarded pursuant to section 4019 rather than section 2933.1. It also omitted a reference to subdivision (b) when it reflected the enhancement imposed was pursuant to section 12022.53.
Finally, the abstract did not reflect that the $300 fine imposed per section 1202.4 was suspended by the court unless and until parole was revoked. It is firmly established that fines, fees, and other financial assessments cannot be included in an abstract of judgment in a criminal case unless imposed by the court by its oral pronouncement at sentencing. By the same logic, when the court suspends execution of a fine in its oral pronouncement, that fact must be reflected on the abstract as well.
People v. Clark (2021) 67 Cal.App.5th 248, 260–261
The abstract of judgment must be corrected to reflect the correct sentence to 27 years rather than the 27 years two months as shown, and to reflect that the term imposed for one count is one-third the middle term.
A reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment by the sentencing court.
People v. Mitchell (2001) 26 Cal.4th 181, 185
As a general rule, only claims properly raised and preserved by the parties are reviewable on appeal. Our Supreme Court adopted this forfeiture rule to reduce the number of errors committed in the first instance], and the number of costly appeals brought on that basis. In the context of criminal sentencing, this forfeiture rule applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.
People v. Smith (2001) 24 Cal.4th 849, 852
People v. Scott (1994) 9 Cal.4th 331, 354
People v. Welch (1993) 5 Cal.4th 228, 235
At resentencing, the defendant did not ask the trial court to strike the prior serious felony enhancements or argue that imposing both the firearm enhancement and the upper term on count 16 would result in an impermissible dual use of facts. The record contains no sentencing brief; and both defense counsel and the defendant himself responded in the negative when the trial court asked if they wished to be heard at the resentencing hearing. To preserve his claims, the defendant was required to object at resentencing. Because he did not do so, his current appellate contentions are forfeited.
People v. Scott (1994) 9 Cal.4th 331,353
People v. Coleman (2024) 98 Cal.App.5th 709, 723-725
If the defendant believes that evidence outside the record would support his claim of ineffective assistance of counsel, the proper remedy would be a petition for a writ of habeas corpus.
People v. Snow (2003) 30 Cal.4th 43, 111
The abstract of judgment must be corrected to accurately reflect the trial court’s oral pronouncement.
At a full resentencing hearing, the trial court suspended the restitution fine originally imposed. The court specifically stated, “I will suspend any victim restitution fines due to inability to pay.” The court ordered the abstract of judgment to be amended accordingly. However, the third amended abstract of judgment filed does not reflect the restitution fine as being suspended. The third abstract of judgment shows a restitution fine in the amount of $10,000 pursuant to section 1202.4(b). Generally, when the court’s oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement prevails. This is because the abstract of judgment is not itself the judgment of conviction but merely a summary of the judgment. 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. Hence, the third abstract of judgment must be corrected to reflect the trial court’s oral pronouncement of judgment.
People v. Delgado (2008) 43 Cal.4th 1059, 1070
People v. Leon (2020) 8 Cal.5th 831, 855
People v. Mitchell (2001) 26 Cal.4th 181, 185
The abstracts of judgment (including the abstract of the determinate sentence and the indeterminate sentence) incorrectly state that Defendant was convicted by the court. The clerk is directed to amend both abstracts of judgment so that they correctly reflect that Defendant was convicted by jury.
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. It goes without saying that 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.
PEN 1213
People v. Mitchell (2001) 26 Cal.4th 181, 185-187
In re Black (1967) 66 Cal.2d 881, 890
The condition that the defendant participate in and complete, at his expense, any counseling, rehabilitation, or treatment program deemed appropriate by his probation officer is unconstitutional. The sentencing memorandum must be amended to reflect the court’s waiver of all fines and fees.
By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine (Cal. Const., art. III, sec. 3), judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.
The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. Here, defendant’s condition does not specify the kind of program defendant might be required to complete; rather, it allows defendant’s probation officer to determine whether and in what type of program defendant could be ordered to participate. Thus, the probation condition improperly delegates judicial authority to the probation officer.
Cal. Const. art. III sec. 3
People v. Smith (2022) 79 Cal.App.5th 897, 902
People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359
Where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.
People v. Smith (2022) 79 Cal.App.5th 897, 903
People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to global positioning system monitoring]
People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided that the defendant shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer] [CONTRA] People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [Upholding probation condition which directed defendant to follow such course of conduct as the probation officer may prescribe] [CONTRA:] People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program]
The sentencing memorandum should be modified to accurately reflect the court’s oral pronouncement that all applicable fines and fees be waived. We shall direct the court to correct the sentencing memorandum.
People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment]
People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3 [The reviewing court has the authority to correct clerical errors]
On resentencing under section 1172.75, the court must recaculate credits for time served.
Upon modification of a felony sentence during the term of imprisonment, the trial court must recalculate and credit the actual time the defendant had served on their sentence prior to the modification. Where a defendant has served any portion of their sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence they may receive upon a new commitment for the same criminal act or acts.
PEN 2900.1
People v. Buckhalter (2001) 26 Cal.4th 20, 23, 32
People v. Mitchell (2001) 26 Cal.4th 181, 185 [directing correction of abstract of judgment]
We remand the matter to the trial court, directing the court to correct its records to conform with the oral pronouncement of judgment at appellant’s 2025 resentencing hearing. Specifically, the minute order should be corrected to reflect that the court struck the section 667.5(b) prior prison term enhancement. Thecourt shall prepare an amended abstract of judgment reflecting the section 667.5(b) prior prison enhancement was stricken and that imposition of punishment on counts 2 and 3 was stayed pursuant to section 654.
When there is a discrepancy between the court’s oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls. Clerical errors may be corrected any time they do not accurately reflect the oral judgments of sentencing courts.
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Zackery (2007) 147 Cal.App.4th 380, 385
The abstract of judgment contains errors that must be corrected.
The abstract of judgment includes a court operations assessment of $160 and a conviction assessment of $120, which the trial court struck during its oral pronouncement of sentence. The abstract of judgment must be corrected to show these assessments were not imposed.
People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts]