Daily Archives: September 3, 2026

Elements of crime, Sentencing

Case 000870

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the term for conspiracy to commit murder.

Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of the 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 has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. In particular, a defendant may not be punished for both murder and conspiracy to commit murder. Thus, the sentence on the conspiracy count must be stayed.

Authority:

PEN 654

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042

People v. Hernandez (2003) 30 Cal.4th 835, 866

People v. Vu (2006) 143 Cal.App.4th 1009, 1032–1033

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

Abstracts and Minutes, Sentencing

Case 000869

Posted on by Gary McCurdy

Error and/or relief

We remand to the trial court for resentencing to determine the fines and fees and order them on the record.

First Holding:

The probation report recommended a $10,000 restitution fine, a $10,000 parole revocation fine, and an $80 court security fee. The sentencing minute order and the abstract of judgment reflect these amounts. But the transcript does not reflect that the court ordered appellant to pay these fines and fees. The trial court is responsible for determining the fines and fees and its oral pronouncement controls over any inconsistent minute order.

Authority:

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

Second Holding:

No parole revocation fine shall be imposed if the defendant is sentenced to life without parole.

Authority:

PEN 1202.45

People v. Jenkins (2006) 140 Cal.App.4th 805, 819

Abstracts and Minutes

Case 000868

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not reflect the oral pronouncement of judgment and must be corrected.

Holding:

When there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. Courts have the inherent power to correct clerical errors in their records at any time.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.

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

Sentencing

Case 000867

Posted on by Gary McCurdy

Error and/or relief

Two of the three identical special circumstances of multiple murder on the three counts of murder must be vacated.

First Holding:

When a defendant kills multiple people, the prosecution should allege only one multiple-murder special circumstance. Here, the prosecution alleged three multiple-murder special circumstances, one as to each count of murder, and the jury accordingly returned three true findings on that allegation. The Supreme Court has consistently found that an error of this nature is harmless, however, and the remedy is to simply strike the superfluous findings. We do so here.

Authority:

People v. Jones (1991) 53 Cal.3d 1115, 1148-1149

Second Holding:

When a defendant has been convicted of more than one count of murder in the same proceeding, he may be sentenced to a consecutive term of LWOP as to each count.

Authority:

PEN 190.2(a)(3)

People v. Garnica (1994) 29 Cal.App.4th 1558, 1562–1564

Discretion, Duty of counsel, Duty of the court, Juveniles

Case 000866

Posted on by Gary McCurdy

Error and/or relief

The minor received insufficient notice of his eligibility for a deferred entry of judgment (DEJ), and the trial court failed to conduct a DEJ suitability hearing. We conditionally reverse the juvenile court’s jurisdictional and dispositional orders and remand the matter to the juvenile court for further proceedings.

First Holding:

Welfare and Institutions Code section 790(a) provides that whenever a case is before the juvenile court for a determination of whether a minor is a person described in section 602 because of the commission of a felony offense, the minor may be eligible for DEJ when the following conditions are met: (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. (3) The minor has not previously been committed to the custody of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (4) The minor’s record does not indicate that probation has ever been revoked without being completed. (5) The minor is at least 14 years of age at the time of the hearing. (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. (7) The offense charged is not [one of several listed sexual offenses].

Authority:

WIC 790(a)

Second Holding:

Under section 790(b), the prosecuting attorney must review the file to determine whether or not paragraphs (1) to (7), inclusive, of subdivision (a) apply.

If the minor is found eligible for deferred entry of judgment, the prosecuting attorney must file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and must make this information available to the minor and their attorney.

Authority:

WIC 790(b)

In re C.W. (2012) 208 Cal.App.4th 654, 659 (C.W.)

Third Holding:

The Rules of Court require the court to notify the minor’s custodial parent, guardian, or foster parent at least 24 hours before the appearance hearing.

Authority:

Cal. Rules of Court, rule 5.800(c)

In re Trenton D. (2015) 242 Cal.App.4th 1319, 1324 [finding no indication that a proper notice was properly served and noting rule 5.800(c)’s service requirements]

Fourth Holding:

While a juvenile court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make the final determination regarding education, treatment, and rehabilitation.

The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made.

Authority:

In re Luis B. (2006) 142 Cal.App.4th 1117, 1123

In re D.L. (2012) 206 Cal.App.4th 1240, 1243–1244