Tag Archives: Abstract of judgment or minute order

Abstracts and Minutes, AppellateAdvisor Updates

Case 000985

Posted on by Gary McCurdy

Error and/or relief

The sentencing minute order cites the statute for the firearm enhancement as section 12022.53(d), instead of section 12022.5(a). On remand, the trial court is therefore instructed to correct the sentencing minute order nunc pro tunc.

Holding:

The sentencing minute order from January 7, 2025 contains the same error contained in the original abstract of judgment, i.e., the statute for the firearm enhancement is cited as section 12022.53(d), instead of section 12022.5(a). While the abstract of judgment was subsequently corrected, there is nothing to indicate in the record that the sentencing minute order was also corrected. On remand, the trial court is therefore instructed to correct the sentencing minute order nunc pro tunc.

(Gary note: The court does not cite its authority to order correction of the minutes, likely because it’s so obvious, not to mention that it apparently had previously spotted the same error in the abstract of judgment and ordered its correction. For your convenience, I have listed a nonexclusive list of cases that the court could have chosen its authority from.)

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 000980

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment reflects the wrong section for what the defendant was convicted of, and must be corrected.

Holding:

There are clerical errors in the abstract of judgment. Section 1 incorrectly indicates that for count 3, the defendant was convicted under section 451b) for the crime of arson of an inhabited structure or property. For that count, the jury actually convicted the defendant of arson of property of another pursuant to section 451(d). We will direct the superior court to correct both the code section and the description of the crime.

Authority:

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

Abstracts and Minutes

Case 000979

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s resentencing under section 1172.75, the amended abstracts of judgment fail to correctly capture the court’s calculation of custody credits and disposition of fines and fees. The clerk’s minutes reflect the same errors.

We will order the abstracts of judgment and minute order corrected to reflect the defendant’s [more than 10,000] additional days of actual credit and the trial court’s waiver of the restitution and parole revocation fees.

Holding:

Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

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

Abstracts and Minutes, Amelioration, Duty of the court, Sentencing

Case 000978

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose the normal base term for several of his offenses in addition to the life terms under the Three Strikes law for those same offenses. The court failed to update the credit for time served. And the abstract of judgment misidentifies a second degree robbery as in the first degree, and must be corrected.

First Holding:

Where, as here, a defendant’s current sentence includes prison prior term enhancements rendered invalid under section 1172.75(a), the court shall recall the sentence and resentence the defendant. By its plain terms, section 1172.75 requires a full resentencing, not merely the striking of newly invalid enhancements.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 402

Second Holding:

The Three Strikes law is a penalty provision, not an enhancement. It is not an enhancement because it does not add an additional term of imprisonment to the base term. Instead, it provides for an alternate sentence (25 years to life) when it is proven that the defendant has suffered the requisite number of convictions, prior and present. (At least two prior serious felony convictions, and the current offense being a qualifying offense for invocation of Third Strike sentencing.)

Authority:

People v. Williams (2014) 227 Cal.App.4th 733, 744

Third Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Fourth Holding:

When a trial court pronounces an unauthorized sentence, the sentence may be set aside and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.

Authority:

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431–432

People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21

Fifth Holding:

The trial court erred in failing to update his presentence credits at the time of resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

The amended abstract of judgment incorrectly lists the defendant’s conviction in count 3 as one for first degree robbery, when in fact the conviction should be identified as one for second degree robbery. The abstract of judgment must be corrected.

(Gary note: Though the court discussed the need for amending the abstract of judgment for various reasons through the opinion, it did not cite authority for its order that it be corrected. There is plenty of authority available, of course. I have set out some cases the court could have drawn from, but there are undoubtedly many others.)

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

Case 000976

Posted on by Gary McCurdy

Error and/or relief

Following the resentencing hearing on remand from the defendant’s earlier appeal, the minute order and the abstract of judgment fail to reflect the oral judgment, and each must be corrected.

First Holding:

The trial court was required to prepare an amended abstract of judgment showing the entirety of defendant’s sentence, including the fines, fees, and credits, imposed at the resentencing hearing.

Authority:

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

Second Holding:

The minute order states only that the trial court gave a ruling “as on the record” about the aggravating circumstances, without specifying the findings on the aggravating circumstances.

When the defendant waives a jury trial and is tried by the court, the court is required to announce its factual findings at the conclusion of the hearing, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered in the minutes.

The minute order must be amended to reflect those findings as required.

Authority:

PEN 1167

Abstracts and Minutes, Duty of the court, Sentencing

Case 000965

Posted on by Gary McCurdy

Error and/or relief

(Gary note: Alas, this is yet another “not a win.” But it is yet another instance of an error in the abstract of judgment.)

The defendant was resentenced under section 1172.75. The abstract of judgment does not accurately reflect the oral pronouncement and must be corrected. Further, the trial court failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing.

First Holding:

The amended abstract of judgment fails to reflect that the trial court sentenced the defendant to two consecutive 25-year to life terms for burglary and robbery, plus a three-year enhancement on the robbery count under section 12022.7, a stayed, three-year enhancement on the burglary count under section 12022.7, and concurrent five-year enhancements under section 667(a) on both the robbery and burglary counts. We will direct the trial court to correct this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.]

Second Holding:

The trial court also failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing. A court that modifies a defendant’s sentence must recalculate and credit against the modified sentence all actual time the defendant has already served, whether before or since he was originally committed and delivered to prison custody. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 41 [under section 2900.1, the trial court, having modified defendant’s sentence, should have determined all actual days defendant had spent in custody and awarded such credits in the new abstract of judgment]

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

Abstracts and Minutes

Case 000961

Posted on by Gary McCurdy

Error and/or relief

the abstract of judgment must be corrected to conform to the trial court’s oral pronouncement striking the section 667.5, subdivision (b) prior, rather than stating, as it currently does, that the enhancement was stayed.

Holding:

The abstract of judgment must be corrected to conform to the oral judgment.

Authority:

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.]

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

Abstracts and Minutes

Case 000960

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly states that the crime was committed “by force.” The abstract must be corrected to remove those words.

Holding:

We order correction of the clerical error in the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical errors in an abstract of judgment may be corrected at any time]

Abstracts and Minutes, Sentencing

Case 000959

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to recalculate his custody credits and the amended abstract of judgment reflects the incorrect amount of conduct credit. The abstract of judgment must be amended to accurately reflect defendant’s custody credits and his restitution fine must be vacated due to recent amendments to section 1465.9.

First Holding:

The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Second Holding:

In cases where there is no factual dispute as to the dates of custody and the calculation is merely arithmetical, the defendant should not be deprived of credit to which he or she is entitled merely because trial counsel made a mistake.

Authority:

People v. Fares (1993) 16 Cal.App.4th 954, 959

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

Third Holding:

The abstract of judgment reflects that the conduct credit days ordered at the original sentencing hearing was 40 days instead of the 70 days actually granted. The abstract must be corrected to reflect the 70 days pre-sentence conduct credit.

Authority:

People v. Hernandez (2024) 103 Cal.App.5th 981, 993

People v. Boyd (2024) 103 Cal.App.5th 56, 74–75

Fourth Holding:

Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 that is not paid within 10 years must be vacated.

Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. The restitution fine was originally imposed in 2007, and defendant was resentenced over 18 years later. We therefore vacate the fine.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000957

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be amended to show that the restitution fine was vacated and the trial court security fee was stayed. We also order corrections on the minute order from the resentencing hearing.

First Holding:

At the resentencing hearing under section 1172.75, the court suspended or stayed any unpaid amounts of the previously imposed court fees and the restitution fine. In contrast, the abstract of judgment filed after the resentencing hearing erroneously showed the trial court imposed the restitution fine of $10,000 and the court security fee of $20.

The abstract of judgment must be corrected to reflect the oral pronouncement. Further, the minute order reflects that the defendant was convicted of murder in the second degree, whereas he was actually convicted of murder in the first degree.

The minute order also must be amended.

Authority:

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

Second Holding:

Further, although the trial court intended to stay or suspend any unpaid balance of the restitution fine, that fine must be vacated because it was imposed more than 10 years earlier and the abstract of judgment must be amended to reflect that it has been vacated.

Authority:

PEN 1465.9(d)

Abstracts and Minutes, Sentencing

Case 000956

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing two concurrent sentences for firearm convictions based on the same, single act of possessing a firearm. We remand for resentencing.

First Holding:

The trial court imposed a middle term of four years for possession of a firearm. It then imposed concurrent sentences for carrying a loaded firearm and carrying a concealed firearm in a vehicle, all committed while having a prior felony conviction.

This sentence violates section 654’s prohibition of multiple punishment for a single act or omission, or an indivisible course of conduct. All three convictions were based on a single possession or carrying of a single firearm on a single occasion and may be punished only once under section 654.

Authority:

PEN 654(a) [an act punishable in different ways by different provisions of law shall not be punished under more than one provision]

People v. Deloza (1998) 18 Cal.4th 585, 591

People v. Jones (2012) 54 Cal.4th 350, 357

Second Holding:

That the concurrent sentences imposed for counts 7 and 8 are served simultaneously with the sentence for count 6 is inconsequential. A concurrent sentence is still a punishment subject to section 654. In these circumstances, the trial court was required to impose one sentence and to stay the execution of the duplicative sentence.

Authority:

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

People v. Mani (2022) 74 Cal.App.5th 343, 380

Third Holding:

(Gary note: The opinion did not describe count 3 or what the oral pronouncement of sentence was for that count, but in the opinion’s disposition paragraph, the court included the following sentence: “The clerk of the superior court is also directed to correct the abstract of judgment to reflect the orally pronounced sentence on count 3.”

(That is the only reference to the abstract in the opinion. I include this as a “holding” because it represents yet another instance of where an abstract of judgment was apparently incorrect. The cases I have listed below are some of several cases that the court could have chosen to cite as authority for its order.

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, Appellate Principles, Sentencing

Case 000952

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in pronouncing judgment regarding custody credits. Though the court announced the actual and conduct amounts separately and correctly, the court announced an incorrect total of the two. We modify the judgment accordingly.

Holding:

the trial court awarded the defendant 98 days of actual credit and 98 days of conduct credit (sec. 4019), but made a mathematical error in announcing the defendant’s total credit as 180 days rather than 196 days. The abstract of judgment already reflects the proper total and need not be corrected, but we modify the judgment to reflect the correct total.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [judgment is the trial court’s oral pronouncement of judgment; an abstract of judgment is not the judgment of conviction and does not control if different from the trial court’s oral pronouncement of judgment]