Daily Archives: August 27, 2026

Fines and fees, Sentencing

Case 000690

Posted on by Gary McCurdy

Error and/or relief

The defendant cannot be convicted of both the robbery and the petty theft it resulted in, and the conviction and sentence for petty theft, along with associated fines and fees, must be reversed.

First Holding:

A defendant cannot be convicted of both robbery and petty theft based on the same conduct because theft is a lesser necessarily included offense of robbery.

Authority:

People v. Ortega (1998) 19 Cal.4th 686, 699

Second Holding:

While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct.

However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

Authority:

PEN 654

PEN 954

People v. Ortega (1998) 19 Cal.4th 686, 692

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. Sanders (2012) 55 Cal.4th 731, 736

Third Holding:

This is true even though the defendant first took items from the store and then took the same items from the loss prevention officer by force. The taking of the items from the loss prevention officer was the same as taking items from the store since the loss prevention officer was acting as an agent of the store.

Authority:

People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435

People v. Estes (1983) 147 Cal.App.3d 23, 29

Fourth Holding:

The People contend the defendant forfeited his right to raise this issue on appeal because he did not object to his separate convictions before the trial court. We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Fifth Holding:

Section 1465.8(a)(1) requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373(a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 and a $600 parole revocation restitution fine, which was suspended unless parole is revoked.

Because we reverse the conviction for petty theft, we remand the matter for the superior court to vacate any portion of the fines and fees imposed for petty theft.

Authority:

PEN 1202.5

PEN 1202.4

PEN 1465.8(a)(1)

GOV 70373

Abstracts and Minutes, Fines and fees

Case 000689

Posted on by Gary McCurdy

Error and/or relief

The restitution fine is more than 10 years old and must be vacated. The abstract of judgment does not correctly reflect the trial court’s oral pronouncement of judgment and must be corrected.

First Holding:

The abstract of judgment does not correctly reflect the trial court’s oral pronouncement of judgment. At resentencing, the trial court found defendant indigent and waived any non-mandatory fines and fees. Once the trial court found defendant indigent, the court operations and conviction assessments were no longer mandatory. They were, therefore, waived by the court.

The abstract of judgment nevertheless includes a court operations assessment (sec. 1465.8) totaling $560 and a conviction assessment (Gov. Code, sec. 70373) totaling $420. Because the abstract of judgment does not accurately reflect the court’s oral pronouncement of judgment, we will order it corrected.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 14-15

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

Second Holding:

The restitution fine was imposed more than 10 years ago and must be vacated.

Authority:

PEN 1465.9

Immigration, Plea bargains, Standard of review

Case 000688

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to vacate his conviction pursuant to section 1473.7. We reverse and remand with instructions for the trial court to enter an order granting the motion.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences.

Authority:

PEN 1473.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

In making this determination, we consider the totality of the circumstances. Those circumstances include the noncitizen’s ties to the United States, the importance the noncitizen placed on avoiding deportation, the noncitizen’s priorities in negotiating a plea bargain, and whether the noncitizen had reason to believe an immigration-neutral disposition was available.

However, this list is not exhaustive, and no single type of evidence is necessary for relief. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Third Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

While the judge who took the plea in 1995 declared her practice was to ensure defendants received sufficient immigration advisements, she mentions only possible consequences. She does not state she or the district attorney made the mandatory consequences explicit. Because the defendant’s plea predated Padilla, the requirement making this advisement mandatory for defense counsel did not yet exist. Without an explicit statement about the mandatory consequences, the immigration advisement was inadequate.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905–906 [where immigration consequences are clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Vivar (2021) 11 Cal.5th 510, 523 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient]

Fifth Holding:

To determine prejudice, we focus on whether there is a reasonable probability the defendant would have turned down the plea agreement had he understood the immigration consequences. [The court then described his ties to the United states.] We also determine whether there was reason for the defendant to believe an immigration-neutral disposition was possible. His attorney testified to several other crimes to which the defendant could have pleaded that would have been better for his immigration prospects. Although his exposure was eight years, his plea agreement was for less than a year of prison time. He may have needed to accept a longer prison time to obtain a lesser conviction, but he averred this willingness.

The sparse record we have does not provide reason to believe the prosecutor would have rejected such a proposal automatically. Moreover, though the trial court stated, and the prosecutor argues, it would have been irrational to roll the dice on a longer sentence with such an offer in hand, the Supreme Court of the United States has recognized that someone in the defendant’s position might indeed rationally make such a decision, as the defendant affirmed he would have.

Authority:

Lee v. United States (2017) 582 U.S. 357, 371

Abstracts and Minutes

Case 000687

Posted on by Gary McCurdy

Error and/or relief

At the sentencing hearing, the trial court found that the defendant did not have the ability to pay the Court Security Fee of $40 or the Criminal Conviction Fee of $30. But the court’s minute order and abstract of judgment both reflect that the trial court imposed a $40 court operations assessment (Pen. Code, sec. 1465.8) and a $30 criminal conviction assessment (Gov. Code, sec. 70373). The minute order and abstract of judgment must be amended to reflect the actual judgment.

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 authority to correct such clerical errors.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 387–389

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

Sentencing

Case 000686

Posted on by Gary McCurdy

Error and/or relief

It was error to impose sentence on both the murder and the burglary. Because the court has discretion to choose which sentence to execute and which to stay, the matter is remanded.

First Holding:

Section 654 precludes multiple punishments for an indivisible course of conduct. For example, when a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes. A claim of error under section 654 is nonwaivable.

Authority:

PEN 654

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130

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

Second Holding:

Here, murder was the felony underlying the prosecution’s burglary theory, so the trial court erred by imposing consecutive sentences for both crimes. Because the trial court has discretion to decide which sentence should be stayed, remand is required.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379