Tag Archives: Abstract of judgment or minute order

Abstracts and Minutes, Fines and fees

Case 000087

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to allow the trial court to amend the abstract of judgment to reflect that the $30 criminal conviction assessment (Gov. Code, sec. 70373), the $40 court operations assessment (Pen. Code, sec. 1465.8), the $300 restitution fine (Pen. Code, sec. 1202.4), and the $300 parole revocation restitution fine (Pen. Code, sec. 1202.45), were vacated.

Holding:

The court has inherent power to correct clerical errors in abstract of judgment.

Authority:

People v. Baker (2021) 10 Cal.5th 1044, 1109

Abstracts and Minutes, Fines and fees, Sentencing

Case 000083

Posted on by Gary McCurdy

Error and/or relief

The amount of the victim restitution order must be amended, the restitution collection fee must be stricken. And an error in the minute order must be corrected to reflect that two misdemeanors were dismissed.

First Holding:

Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant’s criminal conduct. Restitution is not intended to provide the victim with a windfall. Although the court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole, here the court awarded the victim what amounts to a windfall.

Authority:

People v. Nichols (2017) 8 Cal.App.5th 330, 342

People v. Baker (2005) 126 Cal.App.4th 463, 470

Second Holding:

The 10 percent restitution collection fee is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 625 [On September 18, 2020, the Governor signed AB 1869, which eliminated the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and eliminated all outstanding debt incurred as a result of the imposition of specified administrative fees.]

Third Holding:

The minute order fails to reflect that two misdemeanor counts were dismissed, and it must be corrected.

[Gary note: The court did not cite any authority for its order for correction, but there is plenty out there. I have set forth a few cases the court could have cited, 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

Abstracts and Minutes

Case 000079

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to correction of the abstract of judgment to reflect the credit for time served orally pronounced.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. The abstract of judgment must be corrected to reflet the credit for time served orally pronounced.

Authority:

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

Abstracts and Minutes

Case 000075

Posted on by Gary McCurdy

Error and/or relief

For the reasons set forth below, we affirm with instructions to modify the abstract of judgment. The trial court clerk shall prepare an amended abstract of judgment to reflect appellant’s conviction of second degree murder and forward a copy to the Department of Corrections and Rehabilitation. In all other aspects, the judgment is affirmed.

Holding:

The abstract of judgment incorrectly states that the conviction was for murder in the first degree, whereas it was actually for murder in the section degree. The People agree that an error in the classification of appellant’s conviction exists and that we have the authority to correct this error.

Authority:

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

 

Abstracts and Minutes, Discretion, Duty of the court, Sentencing, Standard of review

Case 00072

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing the great bodily injury enhancement on count 2 because it did not afford great weight to the mitigating circumstance of the defendant’s prior victimization. The trial court applied the wrong legal standard in declining to dismiss the great bodily injury enhancement. We therefore vacate the sentence and remand for resentencing. Also, the abstract of judgment incorrectly shows murder as in the first degree and must be corrected to show that the conviction was for murder in the second degree.

First Holding:

The trial court shall dismiss an enhancement if it is in the furtherance of justice to do so. In exercising its discretion in this regard, the court shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. One of the listed mitigating circumstances is the current offense is connected to prior victimization or childhood trauma.

Authority:

PEN 1385

Second Holding:

Absent a finding that dismissal would endanger public safety, a court must assign significant value to the enumerated mitigating circumstances when they are present. In practice, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1038

Third Holding:

We review a trial court’s decisions under section 1385 for abuse of discretion. As relevant here, an abuse of discretion arises if the trial court based its decision on an incorrect legal standard.

Authority:

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

Fourth Holding:

When, as here, a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 425

Fifth Holding:

The abstract of judgment incorrectly states that the defendant was convicted of first degree murder in count 1. When issuing a new abstract of judgment after resentencing, the trial court shall correctly identify the crime in count 1 as second degree murder. [Gary note: the court did not cite any authority for its order to correct the abstract of judgment, likely because it seems so obvious. But there is authority that the court could have cited, some of which I have listed below, even though not cited in the opinion.]

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

Abstracts and Minutes, Gary Musings

The Abstract Is Concrete

Posted on by Gary McCurdy

Some Words About Abstracts Of Judgment And Minute Orders

I run across many, many cases where the abstracts of judgment and minute orders are incorrect in ways that could harm the defendants’ interests. CDCR and parole authorities are going to accept what they see on the abstract of judgment as a true and accurate account. Errors might affect an inmate’s housing and job assignments and may even result in denial of the proper calculation for good behavior and work credits, not to mention result in depletion of inmate funds for the repaying of debts no longer or never owed.  And the abstract of judgment is part of the record of conviction, which may be relied on when the prosecution decides to seek enhancements to the range available on the current offense because the defendant has been convicted of certain types of crimes in the past.  As well as when the court or jury decides whether the allegation is true.

I personally believe attorneys should obtain a copy of the abstract of judgment and minute orders–because minute orders, too, have been seen to contain errors, and they, too, can be used to guide the decisions that affect inmates–and check out their accuracy immediately. Where wrong, it should be brought to the attention of the proper person or court to get the correction.  

I do recognize that the paperwork is prepared after the sentencing hearing, so obtaining it would require a little post-judgment effort.  But errors are not uncommon.  As of the writing of this post, I have collected and summarized just under 860 unpublished opinions that have provided some sort of relief to the defendant.  In nearly 140 of those, the abstract or minute order contained information that not only was incorrect, it made the defendant’s plight appear worse than it was.  Reflecting fines due that in fact the court waived.  Misstating the crime as kidnapping when it was actually false imprisonment.  Adding years to the sentence over what was imposed.  Shorting the amount of credit for time served ordered by the court.

I’m not suggesting these errors were intentional.  They are simply a result of human error in a situation where the clerk must process tons of paperwork, often by marking a checkbox, invariably several hours or maybe days after the event took place, mixed in with several other similar events conducted on the same day.  I also recognize that the 860 “victory” cases represent roughly 38% of the total criminal cases I have looked at as of this writing, but that still reflects that about 6% of the criminal cases have abstracts of judgment or minute orders that were incorrect in a way that adversely impacted the defendant.

As an example of how something can go terribly wrong, suppose a defendant was convicted years ago of violating Penal Code section 245, which (at the time in my hypothetical) could be violated by assaulting a person EITHER by use of a deadly weapon OR by means likely to cause great bodily harm, because the then-wording of section 245 started out, “an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury,” rather than having the two methods separated in different parts of the section as the section now reads.

Decades later, the defendant commits a robbery, only his second offense ever. If the abstract of judgment erroneously indicates that his prior violation of section 245 was by use of a deadly weapon–rather than by means of force, as it actually was (in my hypothetical)–it would appear that the defendant would have a strike, resulting in a doubled sentence. Or if the defendant’s record was a bit worse and that old conviction is seen to count toward a total of two prior strikes, he’s possibly looking at a minimum of 25 years to life, depending on the nature of the new offense. All because of an incorrect abstract of judgment “proving” that he had that as a strike. Isn’t avoiding that risk worth securing a correct abstract of judgment and related minute orders? Okay, I see I’ve bent the planks in my soapbox, so I’ll dismount, for now.

Stop the Presses! Back up on the soapbox! Since the original drafting of this  a few months ago (when I was prototyping the website on my own while the real deal was being constructed by my pro), I ran across an unpublished case (Case 000300, so it will be a while before you see that summary) where the abstract of judgment incorrectly stated the defendant had been convicted of a serious or violent felony! The appellate court has ordered its correction, but my, my! That mistake might have resulted in all sorts of problems should the defendant ever be convicted of yet another crime in the future. Sure, I’m certain there are those who think people get what they deserve and shouldn’t complain when their poor judgment results in worse punishment than the law permits. That’s not how I feel, however. There’s enough injustice out there already, and the Legislature has spoken on what the punishment may be. There’s no call for someone to be subjected to beyond what the law permits. Okay, I’m done for now. I’ve worn out the soapbox so much it couldn’t qualify for a derby.  Back to summarizing.

 

Abstracts and Minutes, Appellate Principles

Case 000067

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment requires correction to show that the enhancement was stricken and the determinate sentences were stayed under Penal Code section 654.

First Holding:

Where there is a discrepancy between the oral pronouncement of sentence and the minute order or abstract of judgment, the oral pronouncement controls.

Authority:

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

Second Holding:

A series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. Here, however, we have rejected all but one of her claims of error. As a result, there are not multiple errors to accumulate.

Authority:

People v. Hill (1998) 17 Cal.4th 800, 844

People v. Weaver (2012) 53 Cal.4th 1056, 1077

Abstracts and Minutes, Sentencing

Case 000062

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

Sentencing

Case 000060

Posted on by Gary McCurdy

Error and/or relief

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.

First Holding:

The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months.

Authority:

Pen. Code, sec. 1170.1(a)

People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months]

Second Holding:

The court may correct unauthorized sentence at any time. [GARY NOTE: This holding may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review at least the three cases that I cite below Scott–not cited in this unpublished opinion–and the cases they cite if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Singleton (2025) 113 Cal.App.5th 783

People v. Boyd (2024) 103 Cal.App. 56

People v. Codinha (2023) 92 Cal.App.5th 976

Third Holding:

Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [on the principle that the oral pronouncement normally controls]

Sentencing

Case 000058

Posted on by Gary McCurdy

Error and/or relief

The fines and fees not mentioned in the trial court’s oral imposition of sentence are improper and must be stricken.

First 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.

Authority:

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

[Cf.] People v. Cleveland (2004) 32 Cal.4th 704, 768

Second Holding:

When a trial court does not orally impose discretionary restitution and parole revocation fines under sections 1202.4 and 1202.45 and the prosecution does not object, as here, the prosecution forfeits any objection on appeal and the fines or fees must be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

Third Holding:

When a defendant has been convicted of certain listed offenses, including any crime that requires sex offender registration pursuant to section 290(c) at the time of sentencing the trial court shall consider issuing an order restraining the defendant from any contact with a victim of the crime. It was error to include Jane Doe in the protective order because she was not a victim of the crime, and even as a witness there was no indication that the defendant had made threats toward her within the meaning of section 136.2(i)(2).

Authority:

PEN 136.2(i)(1)

PEN 136.2(i)(2)

People v. Walts (2025) 112 Cal.App.5th 127, 143 [The amendment to section 136.2(i)(1) reflects that the Legislature intended that protective orders should only be available for any person who is a victim of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted]

Fourth Holding:

The defendant should have objected to the protective order in trial court, thus forfeiting the issue, but we will nonetheless consider his argument to the extent that it raises a question of law.

Authority:

People v. Walts (2025) 112 Cal.App.5th 127, 140

Fifth Holding:

We review the trial court’s result, not its rationale.

Authority:

People v. Zapien (1993) 4 Cal.4th 929, 976

Abstracts and Minutes

Case 000044

Posted on by Gary McCurdy

Error and/or relief

The appellate court corrected the sentence to the correct term (16 months not 2 years), running some counts concurrent per the trial court order rather than consecutive per the abstract of judgment, and corrected the abstract to include several fees and fines that were imposed.

First Holding:

The abstract and minute order must be corrected to reflect that the “one third of the midterm” pronounced by the judge should have been 16 months, not two years, because the middle term for the offense is four years, not six years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

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

Second Holding:

Because the minute order incorrectly states that the sentences were to run consecutively, rather than concurrently as actually ordered by the court, the minute order must be corrected, as the oral pronouncement controls. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.

Authority:

People v. Price (2004) 120 Cal.App.4th 224, 242

Third Holding:

The appellate court may correct the amount imposed by the superior court for specified assessments whose amounts are mandatory.

Authority:

People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530 [Because the seven additional assessments, surcharge, and penalties are mandatory, their omission may be corrected for the first time on appeal]