Tag Archives: Abstract of judgment or minute order

Abstracts and Minutes, Amelioration, Fines and fees, Sentencing

Case 000847

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court failed to award credit for the time the defendant served in custody. The court imposed a restitution fine that should have been vacated. The court imposed repealed fees. Remanded for the trial court to correct these errors, along with errors in the abstract of judgment.

First Holding:

Where 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.

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 credit must then be added to the abstract of judgment.

Here, the most recently amended abstract reflects no credit for time served. On remand, the trial court will need to recalculate the number of days the defendant spent in custody from the initial sentencing through the date of the resentencing and prepare an updated abstract of judgment.

The abstract of judgment must be corrected to reflect the correct date that the new sentence was pronounced at the resentencing hearing, not the date of the original sentencing.

Authority:

PEN 2900.1

PEN 2900.5

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

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

Second Holding:

The restitution fine imposed under section 1202.4 at the original sentencing in 2011 must be vacated. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

Third Holding:

The trial court was not authorized to impose fees under former Government Code section 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 The Legislature repealed that statute effective July 1, 2021.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. Accordingly, we vacate the main jail booking fee and the main jail classification fee imposed by the trial court.

Authority:

GOV 6111(a)

Fourth Holding:

We note a clerical error in the most recently amended abstract of judgment. The abstract includes a solitary numeral “1” in section 3 of the enhancements section. The numeral is listed without an identifying label and is not included in the aggregate sentence. Presumably, this numeral is left over from the prior prison term enhancement that was stricken by the trial court at resentencing and should be deleted. We will direct the trial court to correct the amended abstract of judgment by deleting this errant numeral.

(Gary note: The court did not cite any authority for its order directing correction of the abstract of judgment, but the law is clear that it has that authority. I have listed below some cases the court could have cited as authority.)

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, Amelioration, Sentencing, Standard of review

Case 000846

Posted on by Gary McCurdy

Error and/or relief

At the resentencing under section 1172.75, the court erred in failing to update the credit for time served. Remanded for the court to calculate the correct number of days and to correct the abstract of judgment that reflected the credit as of only the original sentence date.

First Holding:

The trial court incorrectly calculated his custody credit, and the abstract of judgment following the resentencing hearing does not reflect the actual days of custody credit as of the date of resentencing. We therefore remand the matter so the court may recalculate Smith’s actual days of custody credit and prepare an amended abstract of judgment.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Second Holding:

(Gary note: The appellate court otherwise affirmed the sentence imposed on resentencing, but announced principles worthy of mention here, though they did not support any relief on appeal for this defendant.)

We review the trial court’s sentencing decisions for an abuse of discretion. We interpret relevant statutes and review claims of ineffective assistance of counsel de novo.

Authority:

People v. Moseley (2024) 105 Cal.App.5th 870, 874

People v. Mayfield (1993) 5 Cal.4th 142, 199

People v. Terwilligar (2025) 109 Cal.App.5th 585, 595

Abstracts and Minutes, Sentencing, Standard of review

Case 000845

Posted on by Gary McCurdy

Error and/or relief

The trial court incorrectly imposed a consecutive subordinate term for the child abuse and a concurrent term for the false imprisonment because those counts were stayed under Penal Code section 654.

The abstract of judgment does not reflect the correct amount of the defendant’s local conduct credits. We therefore exercise our inherent authority to modify the judgment to correct these errors.

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

We view the evidence favorably to support the judgment and presume every factual finding that could reasonably be deduced from the evidence.

Authority:

People v. Roles (2020) 44 Cal.App.5th 935, 946–947

Third Holding:

Because the court stayed counts 3 and 5 under section 654, count 3 should not be a consecutive one-third term and count 5 should not be concurrent. Remand is not necessary to correct these matters. The trial court clearly intended to impose the midterm for all counts and enhancements, and to stay execution of the sentences in counts 3 and 5 and the enhancement attached to count 5. We will therefore exercise our authority to modify the judgment to correct the unauthorized sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

There were errors in the abstract of judgment, including the failure to mark that counts 3 and 5 were stayed under section 654, and reflected seven days credit for time served less than ordered by the court. We exercise our authority to correct this error as well

Authority:

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

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing

Case 000841

Posted on by Gary McCurdy

Error and/or relief

The Court of Appeal treated this appeal as a petition for writ of habeas corpus, and struck the enhancement for the now-invalid prison term enhancement.

Habeas was necessary because the defendant’s name did not appear on a list prepared and maintained by the California Department of Corrections and Rehabilitation (CDCR), so the defendant was not eligible to apply for resentencing under section 1172.75.

The court granted the writ, directing that the prior prison term enhancement be stricken, and also ordered correction of an error contained in the abstract of judgment.

First Holding:

Section 1172.75, effective in 2022, provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid.

The statute also establishes a process for recalling sentences that include now-invalid prior prison term enhancements and resentencing affected defendants. It requires the Secretary of the CDCR and the county correctional administrator of each county to identify those persons in their custody currently serving a term for a judgment that includes an enhancement described in section 1172.75(a) and to provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.

Upon receiving this information, the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in section 1172.75(a). If the judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75

Second Holding:

Any review and verification by the court in advance of resentencing is only triggered by receipt of the necessary information from the CDCR Secretary or a county correctional administrator, not by any individual defendant.

Section 1172.75 does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.

While defendant’s petition is not sufficient to authorize the trial court to act pursuant to section 1172.75, jurisdiction can be found if the CDCR provided the court with a list identifying defendant while his petition was pending.

In this case, the CDCR never identified defendant to the trial court as someone eligibile for section 1172.75 resentencing, and the trial court did not have jurisdiction to resentence the defendant under section 1172.75. Therefore, the trial court’s resentencing and related abstract of judgment and minute order are void.

Authority:

People v. Burgess (2022) 86 Cal.App.5th 375, 384

People v. Cota (2023) 97 Cal.App.5th 318, 332 [trial court is statutorily authorized to act once trial court receives defendant’s identification information from CDCR]

People v. Escobedo (2023) 95 Cal.App.5th 440, 447–448

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Chavez (2018) 4 Cal.5th 771, 780

Third Holding:

On appeal from a void judgment or order, we must reverse the trial court’s void acts because simply dismissing the appeal would leave intact the void judgment.

Authority:

People v. Gray (2024) 101 Cal.App.5th 148, 170

People v. Alanis (2008) 158 Cal.App.4th 1467, 1477, fn. 5

Fourth Holding:

Where, as here, execution of sentence has commenced and the judgment is final, the trial court is generally deprived of jurisdiction to resentence a criminal defendant.  To obtain resentencing on a final judgment, a defendant generally must file a petition for writ of habeas corpus (see ) or proceed by way of a special statutory procedure (e.g., §§ 1170.18, 1170.91, 1172.1, 1172.2, 1172.6, 1172.7, 1172.75). 

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 339

People v. Karaman (1992) 4 Cal.4th 335, 344

Dix v. Superior Court (1991) 53 Cal.3d 442, 455

People v. Hernandez (2019) 34 Cal.App.5th 323, 326

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1118

Fifth Holding:

A trial court may recall and resentence a defendant on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, provided the new sentence, if any, is no greater than the initial sentence.

A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.

Authority:

PEN 1172.1(a)(1)

Sixth Holding:

A defendant may, however, invite the court to exercise its discretion under section 1172.1.

However, appellate courts have uniformly held that a trial court’s summary decision not to take up a defendant’s invitation under section 1172.1 is not an appealable order and that any such appeal fails to confer jurisdiction to the Court of Appeal.

There is no indication in the record that the trial court intended to grant defendant’s invitation to recall and resentence him pursuant to section 1172.1.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 375

People v. Brinson (2025) 112 Cal.App.5th 1040, 1047

People v. Roy (2025) 110 Cal.App.5th 991, 1001

People v. Faustinos (2025) 109 Cal.App.5th 687, 695–696

People v. Hodge (2024) 107 Cal.App.5th 985, 996

Seventh Holding:

The record does reflect that a prior prison term enhancement was imposed illegally (because it was imposed AFTER the statute was amended declaring such prior prison term enhancements to be invalid).

Both parties have requested that we treat defendant’s appeal as a petition for writ of habeas corpus with respect to the sentence he is still serving, and we exercise that discretion.

Accordingly, for the sake of judicial economy, we shall deem defendant’s appeal, in part, a petition for writ of habeas corpus and order that the abstract of judgment be modified to strike defendant’s former section 667.5 enhancement.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4

Eighth Holding:

The abstract of judgment erroneously reflects that the firearm enhancement is attached to count II instead of count I, which it was actually attached to. Having reviewed the record on appeal, we shall order the abstract of judgment corrected.

Authority:

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

Abstracts and Minutes, Sentencing

Case 000840

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, the superior court awarded the incorrect number of days of credit.

Though the abstract of judgment lists the correct number of days, it does not correctly reflect the controlling oral pronouncement of judgment. The court must amend the final abstract of judgment after correcting the calculation of credit for time served.

First Holding:

At the conclusion of the resentencing hearing, the superior court awarded actual days that only reflected the number of actual days from the original sentencing date to the resentencing date. It did not include the number of days of original presentence actual credit. Additionally, the court did not indicate the original presentence local conduct credit.

On remand, the resentencing court must recalculate the actual time served to include the original presentence actual days in custody and the number of days in custody from the original sentencing to the resentencing.

The court must also indicate the presentence local conduct credit.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Second Holding:

The most recent abstract of judgment reflects the original presentence credit, as well as the credit awarded at the resentencing. But the oral pronouncement controls when a discrepancy exists between it and the abstract of judgment. We direct the superior court to amend the final abstract of judgment upon correcting the errors we have described.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]

Abstracts and Minutes

Case 000839

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that the defendant was convicted of attempted murder, and not of attempted willful, deliberate, and premeditated murder as the abstract erroneously reflects. The abstract must be corrected.

Holding:

The abstract of judgment must be corrected to accurately reflect the crime of which the defendant was convicted.

(Gary note: The court cited no authority for the order for correction, but there are many cases it could have cited. I have set forth some 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

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

Case 000838

Posted on by Gary McCurdy

Error and/or relief

Because the court did not follow the required procedures for adjudicating the petition brought under section 1170.91, we reverse and remand for further proceedings. We also direct the superior court to correct a clerical error in the abstract of judgment.

First Holding:

We interpret the requirements of section 1170.91 de novo.

Authority:

People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 237

Second Holding:

Section 1170.91(b)(1) provides that a person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service was not considered as a factor in mitigation at the time of sentencing.

Authority:

PEN 1170.91

Third Holding:

If the trial court finds the defendant satisfies the criteria for relief, the court may, in the interest of justice, do either of the following: (1) reduce the defendant’s term of imprisonment by modifying the sentence; or (2) vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecution.

Authority:

PEN 1170.91(b)(3)(A)–(B)

Fourth Holding:

Upon receiving a section 1170.91 petition for resentencing, the trial court must hold a public hearing to determine whether the defendant satisfies the statutory criteria for relief. The prosecution, the defense, and any victim must be given at least 15 days’ notice of the hearing. At that hearing, the prosecution shall have an opportunity to be heard on the defendant’s eligibility and suitability for resentencing. The trial court erred by denying the defendant’s petition for resentencing without holding a properly noticed public hearing as required by section 1170.91(b)(3).

Authority:

PEN 1170.91(b)(3)

People v. Bonilla-Bray (2020) 49 Cal.App.5th 234, 239

Fifth Holding:

Though the original version of section 1170.91 limited its application to those serving a determinate sentence, the Legislature amended the section in 2022 to remove the limitation.

Authority:

People v. Sherman (2023) 91 Cal.App.5th 325, 330 [In 2022, the Legislature amended

again. The 2022 amendment expanded subdivisions (a) and (b) to include those serving indeterminate sentences]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1154 [same]

Sixth Holding:

There is a clerical error in the abstract of judgment. It states that the defendant was convicted of grand theft of a vehicle pursuant to section 487h(a), when in fact he was convicted of the lesser included offense of unlawful driving of a vehicle pursuant to Vehicle Code section 10851(a).

If not already done, the abstract of judgment must be amended to correct this error.

Authority:

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

Abstracts and Minutes

Case 000836

Posted on by Gary McCurdy

Error and/or relief

There were errors in the abstract of judgment that require correction.

First Holding:

The abstract of judgment does not correctly reflect the orally pronounced judgment and must be corrected.

(Gary note: The court did not cite authority for its order for correction of the abstract, but there are many cases it could have cited. I have listed some 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 000834

Posted on by Gary McCurdy

Error and/or relief

Although the jury convicted the defendant of shooting at an occupied motor vehicle for count 4, the determinate abstract of judgment incorrectly states he was convicted of shooting at a dwelling on this count. The trial court must modify the abstract of judgment to correctly reflect the defendant’s conviction on count 4 for shooting at an occupied motor vehicle.

Holding:

We may correct clerical errors in the abstract of judgment at any time on our own motion or upon the application of the parties.

Authority:

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

Abstracts and Minutes, Sentencing

Case 000832

Posted on by Gary McCurdy

Error and/or relief

There are several errors in the minute order that must be corrected.

Holding:

The minute order incorrectly states that the defendant pleaded no contest to a violation of Health and Safety Code section 11378. In fact, the defendant admitted this prior conviction, but she pleaded no contest to a violation of Penal Code section 29800(a)(1). The minute order further states that felony probation was denied when, in fact, the trial court placed the defendant on felony probation. We order the minute order to be corrected.

Authority:

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 954

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

Case 000831

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have recalculated the defendant’s custody credits. Further, the abstract of judgment erroneously indicates that the court reimposed the restitution fine and suspended it. In fact, the court did not reimpose the fine, and thus this is clerical error that must be corrected.

First Holding:

The abstract of judgment erroneously includes a restitution fine. Section 1465.9(d) provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

In fact, the trial court did not reimpose the restitution fine, so this appears to have been a clerical error. Therefore, we remand so the court may correct the abstract of judgment.

(Gary note: The court did not cite any authority for its order directing correction, but there are many cases the court could have relied on. I have set forth several below the Penal Code section in the Authority section below.)

Authority:

PEN 1465.9(d)

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

Second Holding:

There was an error in calculating the defendant’s days of custody credit. Remanded for the court to calculate the correct number of days.

(Gary note: Again, the court cited no authority for this obvious solution, so I have set forth a few below.)

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 33–34

People v. Dean (2024) 99 Cal.App.5th 391, 396–397

Abstracts and Minutes, Defenses, Sentencing, Sixth Amendment

Case 000827

Posted on by Gary McCurdy

Error and/or relief

The Three Strikes sentence is unauthorized because the prior strike allegation was never admitted or found true by the jury or court.

First Holding:

A defendant has a statutory right to a jury trial on the issue of whether he suffered an alleged prior conviction. He may waive that right and submit to a court trial or admit the truth of the prior conviction allegation. Here, there is nothing in the record showing there was any trial on the prior strike. After returning their verdicts on the substantive offenses, the jurors were discharged without considering the strike.

Authority:

PEN 1025(b)

PEN 1158

People v. Epps (2001) 25 Cal.4th 19, 25

Second Holding:

Had the matter been brought to the attention of the court, the court could have convened a new jury to try the prior conviction allegation.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 595–596 [when the court improvidently discharged the jurors before they decided prior conviction allegations, and the defense failed to timely object, double jeopardy did not bar trial of the allegations before a new jury]

Third Holding:

There are cases in which the reviewing court has determined the trial court impliedly found true an enhancement allegation by imposing the enhancement at sentencing. But in such cases, the trial court was at least presented evidence supporting the allegation.

The same is not true here. While the prosecutor at one point represented that he had the certified 969b packet for the prior, there is no indication he presented those documents, or any other evidence, to the court.

And although the minute order of sentencing reflects a true finding by the court on the prior strike, we cannot rely on those entries because there is no oral record of the court making those findings.

Authority:

People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17

People v. Chambers (2002) 104 Cal.App.4th 1047

People v. Zackery (2007) 147 Cal.App.4th 380, 385–386

Fourth Holding:

There is no constitutional or procedural bar precluding the prosecution from retrying a prior strike allegation following appellate reversal for insufficient evidence.

Authority:

People v. Barragan (2004) 32 Cal.4th 236, 239 [constitutional requirement of fundamental fairness, equitable principles of res judicata and law of the case, and relevant statutory provisions do not bar retrial of prior strike allegation]

People v. Monge (1997) 16 Cal.4th 826, 829 [state and federal prohibitions against double jeopardy do not bar retrial of a prior conviction allegation in a noncapital case]

Monge v. California (1998) 524 U.S. 721