Daily Archives: September 7, 2026

Abstracts and Minutes, Duty of the court, Sentencing

Case 000965

Posted on by Gary McCurdy

Error and/or relief

(Gary note: Alas, this is yet another “not a win.” But it is yet another instance of an error in the abstract of judgment.)

The defendant was resentenced under section 1172.75. The abstract of judgment does not accurately reflect the oral pronouncement and must be corrected. Further, the trial court failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing.

First Holding:

The amended abstract of judgment fails to reflect that the trial court sentenced the defendant to two consecutive 25-year to life terms for burglary and robbery, plus a three-year enhancement on the robbery count under section 12022.7, a stayed, three-year enhancement on the burglary count under section 12022.7, and concurrent five-year enhancements under section 667(a) on both the robbery and burglary counts. We will direct the trial court to correct this error.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.]

Second Holding:

The trial court also failed to recalculate the defendant’s actual custody credits from the date of his arrest to the date of resentencing. A court that modifies a defendant’s sentence must recalculate and credit against the modified sentence all actual time the defendant has already served, whether before or since he was originally committed and delivered to prison custody. The court must also calculate conduct credits for the period before the original sentencing hearing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 41 [under section 2900.1, the trial court, having modified defendant’s sentence, should have determined all actual days defendant had spent in custody and awarded such credits in the new abstract of judgment]

People v. Sek (2022) 74 Cal.App.5th 657, 673

Sentencing

Case 000964

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a win, but has section 654 principles of importance.)

There are some sentencing errors related to counts 2, 3 and 4. The court imposed one-third the midterm on each of counts 2 and 3, which it stayed under section 654, and it imposed a concurrent one-third the midterm on count 4.

It was error to impose and stay sentences under section 654 based on 1/3 the middle term, and it was error to impose a concurrent term at 1/3 the middle term.

First Holding:

If a court makes multiple terms concurrent, they must all be full terms, not one-third the midterm. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling.

Authority:

PEN 669

PEN 1170.1(a)

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

Second Holding:

Section 654 prohibits multiple punishment where the same act or omission or a course of conduct deemed to be indivisible in time results in multiple statutory violations. A trial court must determine whether to stay execution of a sentence under section 654, thereby avoiding multiple punishment, before deciding whether to impose concurrent or consecutive sentences.

If the court decides to stay a sentence, it must impose and stay execution of the sentence on that count with no determination made as to whether it is consecutive or concurrent. This is because a term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.

Authority:

Cal. Rules of Court, rule 4.424

People v. Harrison (1989) 48 Cal.3d 321, 335

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

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

Third Holding:

In addition, the one-third-the-midterm rule of section 1170.1(a) only applies to a consecutive sentence, not a sentence stayed under section 654. When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the defendant’s punishment is commensurate with his criminal liability if the stay is lifted.

Accordingly, the trial court must impose a full term on any count that it stays under section 654. If the count for which sentence is not stayed is reversed or otherwise undone, imposition of sentence on the stayed count is preserved.

Authority:

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

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Fourth Holding:

Here, the transcript of the sentencing hearing, the court’s sentencing minute order and the abstract of judgment reflect the court imposed unauthorized terms of one-third the midterm for counts 2, 3 and 4. Such unauthorized sentences are subject to correction on review.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1295

Gary Bonus Note:

(In the last sentence of what I have called First Holding, the court states that a concurrent term begins to run when it is imposed. But there is a special provision under Penal Code section 1203.2a (no parentheses there) that every attorney should practically memorize. It is limited to cases where a defendant has been placed on probation in one case, then later is committed to state prison on another case.  Section 1203.2a can provide a benefit.

(Read it carefully. It appears to require proper steps by the defendant, though Hoddinott seems to hold otherwise. Why take the chance? Just do it right, and you won’t risk the Supreme Court changing its mind, right?

(But if events happen as described in section 1203.2a, the court has a limited time during which it has jurisdiction to act on the probation case, and failure to act within the limited time deprives the court of all jurisdiction to act on the probation case.

(Assuming the court acts timely and revokes probation and imposes a concurrent sentence, it will be deemed to have started from either the date probation was granted or from the date he was received in prison on the new offense.  In other words, far earlier than the date the court imposes execution of sentence on the probation revocation.  Section 1203.2a is designed to serve as an incentive for defendants to take care of outstanding cases when they are sent to prison.

(Again, read it carefully, and guide your client into fulfilling all the steps that serve to invoke section 1203.2a. Of course, if the court chooses to impose the sentence consecutively (assuming a timely action), the consecutive term will be served in a normal fashion.

(But section 1203.2a carries the possibility that untimely action by the court will deprive it of jurisdiction OR that, if the court is so inclined, a concurrent sentence starts at a much earlier time than the order revoking probation and committing the defendant to prison.

(An excellent analysis appears in In re Hoddinott (1996) 12 Cal.4th 992. Section 1202.2a requires the probation officer to report to the court whenever it learns a probationer has been committed to state prison. If the prisoner makes a request in conformity with the opening paragraph of the section, or if the probation learns about the new commitment from some other source, the probation officer must notify the court within 30 days. And here is Hoddinott’s summary of what happens if the probation officer or the court does not act timely:

(“In summary, we hold section 1203.2a’s final paragraph describes two events that will oust the court of jurisdiction: the probation officer’s failure to report the commitment to the court (in accord with paragraph two’s requirements) and the court’s failure to impose sentence within the time periods specified in the third paragraph. The probation officer’s 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer’s subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing.”)

Amelioration, Plea bargains, Sentencing, Sixth Amendment

Case 000963

Posted on by Gary McCurdy

Error and/or relief

Having been found in violation of probation and the previously imposed but suspended prison term having been ordered executed, the defendant is entitled to challenge the upper term that he agreed to in 2021 before section 1170 was amended to provide that the upper term may be imposed only on aggravating factor stipulated to or found true beyond a reasonable doubt by a jury.

If the prosecution or court are not satisfied with the resulting modification, the plea shall be set aside and the parties shall be restored to their status prior to the plea agreement.

First Holding:

Effective 1/1/2022, SB 567 amended section 1170 to make the middle term the presumptive sentence and permit a trial court to impose the upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt.

Authority:

PEN 1170

Second Holding:

In Mitchell, the California Supreme Court resolved the effect of section 1170(b) on negotiated dispositions, holding that SB 567’s amendments to the statute apply retroactively to sentences imposed pursuant to stipulated plea agreements in cases that were not final on appeal.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 737–738

Third Holding:

We therefore reverse the judgment because the facts relied on to justify the upper term were not stipulated to or proven beyond a reasonable doubt at a jury or court trial. The defendantl may reaffirm the bargain and waive the requirements now applicable under section 1170(b), or he may withdraw his plea and return the parties to a pre-plea posture, with the prosecutor bearing its burden of proof. What he may not do, however, is unilaterally obtain a reduction of his agreed-upon upper term sentence to the middle term.

Authority:

People v. Mitchell (2026) 19 Cal.5th 729, 735, 749

Gary note:

(The opinion made no mention of Penal Code section 1171, effective 1/1/2025, even though the Mitchell opinion made an observation in a footnote. There are several unpublished cases that have held that section 1171 will NOT result in a rescission of the plea agreement, in light of the language in 1171(c)(3) that says, “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” (You can search for the unpublished opinions I have posted, where I may have added additional commentary.  Maybe try the search term “1171” or “PEN 1171” with or without quotation marks.)

(On May 18, 2026, the Supreme Court decided People v. Mitchell (2026) 19 Cal.5th 729. It was an appeal directly from the original sentencing under section 1170, and did not arise out of a ruling on the application of any other ameliorative statutes. The question was “Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

(The court concluded that it does apply (section 1170 as amended by SB 567), but it remanded with the Stamps remedy–that if the defendant opts to claim the benefits of section 1170 and the resulting sentence is something the DA or the court are not happy with, the plea will be set aside and the parties restored to their pre-plea bargain status.

(But it contained a very important footnote:

(“Shortly before oral argument, counsel for Mitchell filed a letter with this court identifying section 1171 as a new authority. Section 1171, effective January 1, 2025 (Stats. 2024, ch. 964, § 2) sets forth procedures governing a “ ‘postconviction proceeding,’ ” which the statute defines as “a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.” (§ 1171, subd. (a).) At oral argument, counsel for Mitchell urged that this statutory definition broadly encompasses a remand to the trial court in the context of a direct appeal under the authority of section 1170(b) and Estrada. We decline to consider this argument because we have concluded that Mitchell is entitled to a remand under our established precedent in Stamps. We express no view on the applicability of section 1171 to this case or how it might affect the options described above. Mitchell may raise this issue in the Court of Appeal or the trial court in the first instance.”

(On remand, the Court of Appeal issued its new opinion–this time unpublished–in which it further remanded the case to the trial court for resolution in light of the Supreme Court decision. And in that unpublished opinion, it stated, “We now find that Mitchell’s section 1171 arguments should be resolved first by the trial court. Accordingly, we remand this action to that court for further proceedings consistent with Mitchell II [the Supreme Court decision]. On remand, Mitchell may raise her contentions regarding section 1171.”)

Appellate Principles, Defenses

Case 000962

Posted on by Gary McCurdy

Error and/or relief

One of the defendant’s counts must be vacated because it was time-barred.

First Holding:

There is a three-year statute of limitations for reckless indifference to an animal’s suffering.

Authority:

PEN 597(b) and (d)

PEN 801

Second Holding:

There is a relation-back provision, meaning a prosecutor could file charges late if they involved the same conduct alleged in charges that were timely filed. (Former sec. 803, subd. (b) [eff. Jan. 2018].) The relation-back provision suspends the running of the statute of limitation only for the conduct underlying a charged offense but does not stop the running of the statute of limitation on completely separate instances of criminal conduct.

In other words, the relation-back provision does not function as a categorical exception to the running of the applicable limitation period for the entire class of same or similar criminal acts allegedly committed by a defendant during the same time frame as an offense charged in a pending prosecution.

Authority:

People v. Terry (2005) 127 Cal.App.4th 750, 769

Third Holding:

The defendant requests that, on remand, he should be granted leave to file a motion for new trial on the grounds that the jury may have been influenced by the evidence presented on the time-barred-now-vacated count.

A motion for new trial must be made and determined before the making of an order granting probation. The defendant has been granted probation. The trial court lack jurisidiction to rule on a motion for new trial.

Authority:

People v. Martin (1963) 60 Cal.2d 615, 618

Abstracts and Minutes

Case 000961

Posted on by Gary McCurdy

Error and/or relief

the abstract of judgment must be corrected to conform to the trial court’s oral pronouncement striking the section 667.5, subdivision (b) prior, rather than stating, as it currently does, that the enhancement was stayed.

Holding:

The abstract of judgment must be corrected to conform to the oral judgment.

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [an appellate court may order correction of abstracts of judgment that do not accurately reflect the oral judgments of sentencing courts]