Tag Archives: Abstract of judgment or minute order

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000257

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.

First Holding:

Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367

Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1

People v. Warren (1940) 16 Cal.2d 103, 112

Second Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. The statute bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.

Authority:

People v. Cowan (2010) 50 Cal.4th 401, 498

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Third Holding:

Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 131

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).

Authority:

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

Sentencing

Case: 000256

Posted on by Gary McCurdy

Error and/or relief

After a jury convicted the defendant of one count of kidnapping to commit a sex offense and five counts of forcible rape, he was sentenced to 25-years-to-life on one of the forcible rape counts, plus concurrent life terms on the remaining counts. The trial court also dismissed all fines and fees, although the abstract of judgment shows imposition of two $200 restitution fines. The sentence on the kidnapping to commit a sex offense count should be stayed because that count and the forcible rape count constituted a single criminal act. The court must correct the abstract of judgment to reflect that no restitution fines were imposed.

First Holding:

Section 209(d) provides that a person may be charged with a violation of section 209(b) and section 667.61, but that a person may not be punished under section 209(b) and section 667.61 for the same act that constitutes a violation of both section 209(b) and section 667.61.

Authority:

PEN 209(d)

People v. Adams (2018) 28 Cal.App.5th 170

Second Holding:

Here, the defendant kidnapped the victim to commit a sex offense, and this act formed the basis for his convictions. Additionally, because the victim was not released until after she was dropped off near her relative’s house, there was only one kidnapping offense. Thus, there was a single common act, and the punishment on count 1 (kidnapping to commit a sex offense) must be stayed.

Authority:

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334 [The forcible detention of a victim is an element of kidnaping and as long as the detention continues, the crime continues]

Third Holding:

At the sentencing hearing the trial court expressly dismissed all fines and fees in the interest of justice. The abstract of judgment, however, reflects the imposition of a restitution fine in the amount of $200 under section 1202.4(b) and a suspended parole revocation restitution fine of $200 under section 1202.45. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. If the clerk includes fines in the court’s minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment.

Authority:

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

People v. El (2021) 65 Cal.App.5th 963, 967

Fourth Holding:

Respondent argues the restitution fines are mandatory, and the trial court must impose them unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. Respondent notes the trial court did not provide any compelling or extraordinary reasons on the record, and the only referenced reason was defendant’s inability to pay, which is not a compelling and extraordinary reason to not impose a restitution fine. Respondent requests we correct the abstract to impose the minimum restitution fines, or remand the matter to the court for the limited purpose of either imposing the fines or stating extraordinary and compelling reasons for not imposing the fines. We decline to do so. Because the district attorney failed to object to the court’s omission of a statement of extraordinary and compelling reasons, the waiver doctrine bars the People from obtaining the relief they seek on appeal. Thus, respondent cannot challenge the court’s failure to impose restitution fines in this appeal.

Authority:

PEN 1204.2

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

Abstracts and Minutes

Case: 000249

Posted on by Gary McCurdy

Error and/or relief

Various clerical errors in the minute order memorializing the defendant’s sentence and on the abstract of judgment need to be corrected. In counts 3 through 9, defendant was found guilty of sexual battery within the meaning of section 243.4(a). The abstract of judgment for the determinate sentence correctly identified the applicable statute as section 243.4(a) for counts 3 and 4, but it incorrectly identified the applicable statute as section 243.5(a) for counts 5 through 9. At the sentencing hearing, the trial court imposed a minimum restitution fine of $300 and a suspended parole revocation fine of $300. However, the relevant minute order and the abstract of judgment list each of these fines as $4,500. We find both fines were $300.

First Holding:

Courts may correct clerical errors at any time, and appellate courts have jurisdiction to order corrections of clerical errors contained in an abstract of judgment. The abstract of judgment will be corrected to reflect the correct statute.

Authority:

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

Second Holding:

When there is a discrepancy between an oral pronouncement of judgment and an abstract of judgment, the oral pronouncement controls. A court of appeal can order trial courts to amend a minute order and abstract of judgment to accurately reflect the trial courts oral pronouncement.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244 [abstract of judgment]

People v. Morales (2014) 224 Cal.App.4th 1587, 1594 [minute order]

People v. Clark (2021) 67 Cal.App.5th 248, 260-261

Abstracts and Minutes, Fines and fees

Case: 000236

Posted on by Gary McCurdy

Error and/or relief

The abstracts of judgment for all of the defendants reflect assessments that were not orally pronounced (in fact, the trial court had found that the defendants did not have the ability to pay the fees) and must be stricken. The People agree. We agree with the parties and will order those assessments stricken from the abstract of judgment.

Holding:

It is well settled that an abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, the court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.

Authority:

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

Abstracts and Minutes

Case: 000234

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that one of the counts was to be served concurrently rather than consecutively as the abstract currently show.

Holding:

The abstract of judgment must be corrected to reflect that one of the counts was to be served concurrently rather than consecutively as the abstract currently show.

[GARY NOTE: The opinion listed no authority for its order directing the correction of the abstract of judgment, likely because the legal principle is well-established and seems obvious. Other opinions have cited authority for the proposition that the appellate court itself has the power to correct the abstract of judgment. For convenience, and because my point in presenting unpublished cases in the first place is to provide education on principles that might not be obvious to find in published opinions that deal with new and nuanced problems, I have set forth some authority the appellate 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