Daily Archives: September 7, 2026

Abstracts and Minutes, Duty of the court, Sentencing

Case 000950

Posted on by Gary McCurdy

Error and/or relief

(Gary note: this is not necessarily a win, but I included it because it contains authority that might be useful at some point, if it works to the benefit of the defendant. In this instance, the court remanded for a full resentencing, which could be beneficial to the defendant, because the trial court should be able to consider his progress since the initial sentencing. Assuming there has been progress.

(Keep in mind the original section 1170(d)–which is not related to this case at all–that allowed a judge to recall a sentence at any time during the first 120 days after commitment. I think the concept was that maybe a judge could be persuaded to soften a bit once the defendant has some real time under his belt. Now, of course, the appropriate section has been redesigned and renumbered to 1170.1, which is not at issue in this case, either. But my point is that the defendant might be able to convince the judge to soften from the original sentence. On the other hand, the judge might simply add the full sentence allowed for the misdemeanor and run it consecutively. So, ….)

The trial court neglected to sentence the defendant on count 7, misdemeanor possession of a controlled substance. The failure to pronounce sentence on this count was error and that the appropriate remedy is remand for a full resentencing.

First Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

PEN 12

PEN 1202

PEN 1445

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122

People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642

People v. Morrow (1969) 275 Cal.App.2d 507, 514.)

People v. Codinha (2023) 92 Cal.App.5th 976, 994

In re Sandel (1966) 64 Cal.2d 412, 415

Second Holding:

The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand.

Authority:

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

People v. Benton (1979) 100 Cal.App.3d 92, 102 [failure to either strike or impose enhancement was analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence that can be corrected by remand on the defendant’s appeal]

Third Holding:

Even if the minute order or the abstract of judgment did reflect a sentence on count 7, failure to pronounce sentence orally renders the sentence unauthorized.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [the record of the oral pronouncement of the court controls over the clerk’s minute order]

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement and controls over minutes and abstract of judgment]

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

Fourth Holding:

Under these circumstances, we agree with the parties that the proper remedy is a remand for full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431 [remand is the default unless there is a clear indication from the sentencing court that it would be idle to do so]

People v. Codinha (2023) 92 Cal.App.5th 976, 994–995

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257–1258 [finding full resentencing appropriate given the interlocking nature and inherently integrated nature of felony sentencing for a multiple-count conviction]

Fifth Holding:

Remand is appropriate for the additional reason that the trial court should decide whether section 654 applies to count 7 in the first instance.

(Gary note: The court did not mention it, because it really wasn’t even an issue raised and this mention was strictly in a footnote, but under section 654, the trial court could choose EITHER affected count to sentence the defendant under. So if the misdemeanor and a felony were subject to a single sentence under section 654, the court could impose the misdemeanor sentence and stay the felony sentence. Could happen.)

Authority:

People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4 [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]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [concluding in part that the need to apply section 654 warrants a full resentencing]

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Abstracts and Minutes

Case 000948

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment does not reflect the in-custody credits announced by the court during the resentencing hearing. Specifically, the court ordered the abstract of judgment to reflect, not only the presentence credits but also the actual days in prison, which were calculated as [X] days [more than 32 years]. It must be corrected.

Holding:

The failure to include the credit for time served pronounced in the oral judgment is clerical error. Courts may correct clerical errors at any time.

Authority:

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

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Amelioration, Retroactivity, Sentencing

Case 000946

Posted on by Gary McCurdy

Error and/or relief

The true findings on the two prior strike allegations must be vacated because of changes under AB 333. The matter is remanded for retrial on those allegations to determine whether the prior convictions still qualify as strikes or serious felonies under the current law.

First Holding:

AB 333 (2021-2022 Reg. Sess.) amended section 186.22 by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that, with regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28).

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

People v. Fletcher (2025) 18 Cal.5th 576, 58

Second Holding:

The record here shows defendant’s two pre-2018 convictions included gang enhancements, but provides no information regarding the evidence used to obtain the convictions or the defendant’s underlying conduct. Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement.

The current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. There is no indication that the prior conviction was obtained under AB 333’s more stringent requirements, and the abstract of judgment does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt.

The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 606-607

Third Holding:

The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. If appellant is not timely retried regarding the prior strikes or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing.

Authority:

PEN 1382(a)(2)

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

People v. Watts (2006) 131 Cal.App.4th 589, 597-598