The defendant is entitled to correction of the abstract of judgment to reflect the credit for time served orally pronounced.
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.
People v. Mitchell (2001) 26 Cal.4th 181, 185-186
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.
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.
People v. Taylor (2004) 119 Cal.App.4th 628, 647
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.
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.
PEN 1385
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.
People v. Walker (2024) 16 Cal.5th 1024, 1038
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.
People v. Mendoza (2023) 88 Cal.App.5th 287, 298
People v. Gonzalez (2024) 103 Cal.App.5th 215, 225
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.
People v. Salazar (2023) 15 Cal.5th 416, 425
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.]
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 abstract of judgment must be corrected to reflect that the court orally waived all fines and fees at resentencing.
Because the trial court expressly stated its intent to waive all discretionary fines and fees, which includes restitution fines, we conclude the court did not impose restitution fines under section 1202.4 or parole revocation fines under section 1202.45. The abstract of judgment must be corrected to reflect the judgment orally imposed.
People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may order correction of abstracts of judgment that do not reflect the oral judgments of sentencing courts]
People v. Zackery (2007) 147 Cal.App.4th 380, 385 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls]
The restitution fine, although including a minimum fine, is discretionary in that it permits the trial court to decline to impose it for compelling and extraordinary reasons.
PEN 1202.4(b)
People v. Tillman (2000) 22 Cal.4th 300, 303
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.