Tag Archives: Abstract of judgment or minute order

Error and/or relief

The abstract of judgment must be corrected to reflect the correct section the defendant was convicted of.

Holding:

The abstract of judgment erroneously lists count 11 as subdivision (b)(2) rather than subdivision (a)(2) of section 136.1. We direct the clerk of the superior court to issue a corrected abstract.

(Gary note: The court did not cite any authority for the principle that the appellate court may order correction of the abstract of judgment, but there are many cases the court could have cited. I have set forth some for your convenience.)

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Error and/or relief

The abstract of judgment must be corrected in two respects: First, the abstract of judgment states the trial court imposed a five-year sentence for the section 12022(a)(1) firearm enhancement. But the jury was not asked to, and did not, find that the defendant was armed with a firearm in the commission of the robbery. Second, the abstract of judgment states the trial court imposed a five-year sentence for the count 2 robbery conviction. But at the oral pronouncement of sentence, the court doubled that term to 10 years because of the prior strike.

First Holding:

An appellate court has inherent power to correct clerical errors in its records to reflect the true facts, including the oral judgments of judicial officers. We agree such correction of the record is appropriate. The abstract of judgment must be amended to reflect a firearm enhancement was never imposed on the count 2 robbery and the sentence on that count is 10 years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 186–187

Error and/or relief

The sentencing minutes must be corrected to reflect the orally pronounced sentence.

First Holding:

The court imposed the middle term, to be served in the local jail. The trial court did not orally pronounce any restrictions on the defendant’s custodial sentence. On the trial court’s sentencing minutes, a box is checked next to the phrase “no early release of any type authorized,” and there are handwritten notations stating, “NO CPAC/NO WORK FURLOUGH.” [CPAC refers to the “County Parole and Alternative Custody Unit.”] The abstract of judgment does not reflect these restrictions.

In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. In the event of a discrepancy between the oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls.

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [The record of the oral pronouncement of the court controls over the clerk’s minute order]

Second Holding:

The reporter’s transcript of the sentencing hearing includes no explicit indication that the trial court was foreclosing the possibility of custody-alternative programs or early release. The clerk’s sentencing minutes imposing such restrictions therefore conflict with the trial court’s oral pronouncement of sentence. It follows that we must correct the discrepancy by ordering the trial court to modify the minute order.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 388 [striking sentencing conditions included in the clerk’s minutes that were not orally pronounced]

People v. Gobert (2023) 89 Cal.App.5th 676, 689

Error and/or relief

At the sentencing hearing, the trial court found that the defendant did not have the ability to pay the Court Security Fee of $40 or the Criminal Conviction Fee of $30. But the court’s minute order and abstract of judgment both reflect that the trial court imposed a $40 court operations assessment (Pen. Code, sec. 1465.8) and a $30 criminal conviction assessment (Gov. Code, sec. 70373). The minute order and abstract of judgment must be amended to reflect the actual judgment.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. We have the authority to correct such clerical errors.

Authority:

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

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