Tag Archives: Abstract of judgment or minute order

Abstracts and Minutes

Case: 000212

Posted on by Gary McCurdy

Error and/or relief

The trial court is directed to prepare a corrected abstract of judgment to reflect that the defendant received two consecutive five-year enhancements for prior serious felony convictions under section 667(a)(1), rather than one 10-year enhancement. The trial court is further directed to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Holding:

The abstract of judgment erroneously reflects that the defendant received one 10-year enhancement under section 667(a)(1) for a prior serious felony conviction. We accordingly direct the trial court to prepare a corrected abstract reflecting that the trial court imposed two consecutive five-year serious felony enhancements.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-187

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000208

Posted on by Gary McCurdy

Error and/or relief

The trial court resentenced defendant the defendant pursuant to Penal Code section 1172.75. The court failed to award credit for the time the defendant served in custody. The court imposed repealed fees. The resentencing minute order should be clarified to reflect the proper order in which the defendant must serve the terms comprising his sentence. The matter is remanded to the trial court with directions to recalculate defendant’s custody credits and to prepare a corrected abstract of judgment and minute order as indicated in this opinion and forward a certified copy of the corrected abstract and minute order to the Department of Corrections and Rehabilitation.

First Holding:

Were a defendant has served any portion of his 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 he may receive upon a new commitment for the same criminal act or acts. This means a court resentencing a defendant must credit the defendant with all actual days he had spent in custody, whether in jail or prison, up to that time. The updated total of credits must then be added to the abstract of judgment.

Authority:

PC 2900.1

PC 2900.5

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

People v. Phoenix (2014) 231 Cal.App.4th 1119, 1125, 1129-1130

Couzens et al., Sentencing California Crimes (The Rutter Group Aug. 2025 update) secs. 15:15, 15:20, 15:24, 26:6

Second Holding:

The trial court was not authorized to impose fees under former Government Code section 29550.2. (Former Gov. Code, sec. 29550.2.) The Legislature repealed that statute effective July 1, 2021. (Stats. 2020, ch. 92, sec. 25.) Even if Government Code section 29550.2 were still in effect, the Legislature has declared such fees unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. (Gov. Code, sec. 6111(a).) Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Third Holding:

Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first. The minute order for the resentencing hearing states that the determinate is to be served consecutive to the indeterminate sentence. The minute order must be corrected.

[Gary note: The court did not cite any authority for its order to correct the minute order. But there is much authority allowing a court to correct errors in abstracts of judgments and minute orders. I have set forth a few below.]

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: 000195

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that the defendant has not been convicted of a serious or violent felony.

Holding:

As counsel notes, the abstract of judgment incorrectly reflects that the defendant was convicted of a serious or violent felony. No such conviction appears in the record. The trial court shall prepare a corrected abstract of judgment not indicating the defendant was convicted of a serious or violent felony.

[Gary note: The court included no citation of authority, but the law is clear that an incorrect abstract of judgment must be corrected to reflect the actual judgment. I have included some cases the court could have cited.]

Authority:

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

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

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

People v. Caudillo (1980) 101 Cal.App.3d 122, 126

 

Abstracts and Minutes, Duty of the court, Fines and fees

Case: 000192

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains a clerical error regarding the imposed fines. The defendant was sentenced to an indeterminate sentence on some counts and a determinate sentence of others. Two different forms are used–one is the abstract for the indeterminate sentence, the other for the determinate sentence. Though the court imposed only one restitution fine and one parole revocation restitution fine, both fines appear on both forms. While not necessarily improper, it can lead to an ambiguity. In an abundance of caution, and because we agree the duplicate reference could possibly lead to confusion, we direct the clerk of the court issue an amended determinate abstract of judgment, leaving the restitution fine and parole revocation restitution fine reflected only on the indeterminate abstract of judgment, form CR-292.

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. The abstract of judgment is not the judgment of conviction and it cannot add to or modify the judgment which it purports to digest or summarize. Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction can order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts.

Authority:

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

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

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

People v. Caudillo (1980) 101 Cal.App.3d 122, 126

Second Holding:

A trial court must accurately set forth all fines and fees in the abstract of judgment.

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200 [If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency]

Third Holding:

The court has authority to order correction of abstracts of judgment to avoid ambiguity.

Authority:

People v. Frey (1989) 209 Cal.App.3d 139, 142 [finding ambiguity between the court’s order and the statement on the abstract of judgment form required correction]

Abstracts and Minutes, Sentencing

Case: 000190

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment should be corrected to reflect the court reduced his mandatory assessments due to his inability to pay. We direct the trial court to correct its resentencing minute order and to amend the abstract of judgment.

First Holding:

A trial court must accurately set forth all fines and fees in the abstract of judgment.

Authority:

People v. High (2004) 119 Cal.App.4th 1192, 1200 [If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency]

Second 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 inherent power to correct clerical errors so as to make records such as abstracts of judgment or minute orders conform to the trial court’s oral pronouncement. Thus, we are directing the court to amend the abstract of judgment to conform to its oral pronouncement of judgment.

Authority:

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

In re Candelario (1970) 3 Cal.3d 702, 705