Daily Archives: September 15, 2026

Case 001004

Error and/or relief

On appeal following remand from the defendant’s first appeal, the trial court failed to impose sentence on several counts whose punishment it stayed under section 654. It failed to impose a fine on a fifth count, and it improperly reimposed several other fines.

First Holding:

The court’s failure to pronounce sentence on some of the counts constitutes an unauthorized sentence. When a trial court determines that section 654 applies, the court must impose sentence on every count but stay execution as necessary to implement section 654. This procedure also applies when one of the sentences pertains to a misdemeanor conviction.

Authority:

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

People v. Mani (2022) 74 Cal.App.5th 343, 380

Second Holding:

The defendant’s conviction under Vehicle Code section 23152(a) (driving under the influence) requires a fine, but the court failed to impose a fine.

Authority:

VEH 23536(a)

VEH 23600

People v. Anderson (2020) 9 Cal.5th 946, 962 [defining an unauthorized sentence as one that cannot lawfully be imposed under any circumstances in a particular case]

Third Holding:

Having concluded that the trial court’s failure to impose sentences and to impose a fine resulted in an unauthorized sentence, we also conclude that remand is required to correct the errors. In other cases, we have exercised our authority under section 1260 to modify judgments in sentencing matters where remand would be futile or unnecessary because the record clearly indicated how the trial court would exercise its sentencing discretion.

Here, however, the trial court did not impose sentences on counts two, four, seven, and nine or the firearm enhancement associated with count two, or impose a fine on count six, either at the original sentencing or at the section 1172.75 resentencing. Given the range of sentencing options for the omitted counts and enhancement and the permissible range of the fine on count six, the record does not clearly indicate what sentences or fine the court would have imposed. Accordingly, remand is required.

Authority:

People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896

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

Fourth Holding:

We disagree with the People that on remand, the defendant is entitled to a full resentencing. Section 1260 grants appellate courts the authority to order limited remands for further proceedings that may be appropriate under the circumstances. In resentencing the defendant in 2025, the trial court considered the relevant factors in formulating a sentence it deemed appropriate based on his culpability, criminal history, and his risk of future dangerousness.

The two limited tasks on remand (imposing and staying sentences on the omitted counts that the court had already indicated it intended to stay and imposing a fine on count six) will not alter the overall sentencing scheme the trial court deemed appropriate such that resentencing on all nine counts would be required.

For these reasons, we order a limited remand.

Authority:

PEN 1260

People v. Wilson (2024) 16 Cal.5th 874, 948-949

People v. Stevens (1988) 205 Cal.App.3d 1452, 1456 [Correcting a sentencing error by excising only the flawed component of the sentence from the aggregate term may be appropriate in some contexts where the interests of justice and judicial economy do not require a restructuring of the entire sentencing format]

Fifth Holding:

The court erred in reimposing and staying several fees, despite making an implied finding that the defendant did not have an ability to pay. Equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1).

Neither of the applicable statutes nor Kopp allows a trial court to impose then stay the court operations fee or the court facilities fee after it finds a defendant indigent. Once it found the defendant lacked the ability to pay, the court’s option was to not impose the fees.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Sixth Holding:

The statutes authorizing certain other fees that were previously imposed have since been repealed and are now unenforceable and uncollectible. Any portion of a judgment imposing those fees must be vacated.

Authority:

GOV 6111(a)

Case 001003

Error and/or relief

The verdict form contained a typographical error regarding the appropriate subdivision on the use of firearm enhancement. The reference to subdivision (d) in the verdict from is stricken. There are several errors in the abstract of judgment and minute order that require correction.

First Holding:

A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. Technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.

Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. Here, inclusion of subdivision (d) in addition to subdivision (a) was clearly a clerical error, and must be stricken from the judgment.

Authority:

People v. Jones (2014) 230 Cal.App.4th 373, 378–379

People v. Webster (1991) 54 Cal.3d 411, 447

People v. Camacho (2009) 171 Cal.App.4th 1269, 1273

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Second Holding:

The minute order fails to reflect that on motion by the prosecution the court dismissed the factors in aggravation. It must be corrected to reflect the dismissal. The abstract of judgment reflects that the defendant must pay [more than $10,000] to the Victim Compensation Board twice. The duplicate entry must be stricken from the abstract of judgment. There is an error on the abstract of judgment in reflect the determinate term where an indeterminate term has also been imposed, and the abstract of judgment must be corrected accordingly.

(Gary note: The court cited no authority for its orders directing the corrections, except for Wright, which it cited to demonstrate how the abstract should have been prepared. I have include some cases that the court could have drawn from as authority, had it felt it necessary.)

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is indeterminate, in section six, the determinate form CR-290 must show no time]

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

Case 001002

Error and/or relief

The court failed to recalculate the defendant’s credit for time served on resentencing under section 1172.75.

Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 20, 29, 37, 41

Case 001001

Error and/or relief

(Gary note: This is not a win, but it contains of discussion on what excess credit for time served can apply to in the context of fines or fees.)

Penal Code section 2900.5 does not apply to restitution fines or nonpunitive assessments.

First Holding:

At the conclusion of the defendant’s proceedings, his credit for time served exceeded the total prison commitment that was imposed. His contention that section 2900.5 requires that his excess credits be applied against the ordered restitution fine and ancillary fees raises a matter of statutory interpretation requiring this court to exercise de novo review.

Authority:

People v. Carranza (2016) 6 Cal.App.5th Supp. 17, 23.

Second Holding:

Section 2900.5(a) provides that all presentence custody credit awarded to a defendant shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence.

If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the base fine.

Authority:

PEN 2900.5

Third Holding:

Section 2900.5 has undergone several changes, and prior to 2014 included restitution fines as subject to offset by excess days. Since 2017, the relevant language now requires that credit be applied to “any base fine,” with penalties and assessments imposed on the base fine to be reduced by the percentage the base fine has been satisfied. Excess credits cannot be applied to reduce restitution fines. Section 2900.5 does not apply to restitution fines, nor does it apply to nonpunitive assessments, such as the court operations assessment and the criminal conviction assessment imposed in this case.

Authority:

PEN 2900.5

People v. Petri (2020) 45 Cal.App.5th 82, 92-93

People v. Pinon (2016) 6 Cal.App.5th 956, 967, fn. 7

People v. Rojas (2023) 95 Cal.App.5th 48, 56

 

Case 001000

Error and/or relief

The sentence on the defendant’s misdemeanor counts should have been stayed under section 654 as part of the same conduct as the felony.

First Holding:

Under rule 4.412(b), a defendant is estopped from challenging his or her sentence based on section 654’s prohibition of double punishment where the defendant agreed to a specified term in prison or county jail and is sentenced to that term or a shorter one. Rule 4.412(b) codifies one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed.

But in this case, the defendant did not expressly agree to any sentencing irregularity in exchange for a benefit. The record shows that it was an open plea, meaning that no promises were made as to his sentence. The defendant agreed that he could be sentenced to up to four years in one case and six years in the other, but those terms represented the maximum permitted for the offenses regardless of any plea agreementg. He faced anything up to and including the maximum term allowed.

Authority:

PEN 654

Cal. Rules of Court, rule 4.412(b)

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

People v. Velasquez (1999) 69 Cal.App.4th 503

People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 574–575

People v. Williams (1998) 17 Cal.4th 148, 156

People v. Henderson (2021) 67 Cal.App.5th 785, 788 [an open plea is one under which there is no promise about the nature or duration of the defendant’s sentence]

Second Holding (and Gary Musings):

In Jones, the defendant agreed to plead no contest to all charges and admit the enhancement allegations in exchange for a lid below the maximum term in sentencing. The lid was not the maximum exposure Jones would otherwise face absent the plea agreement. Rather, it restricted the sentence the trial court could impose but to a term less than Jones’s maximum exposure. It was not an open plea.

In Cole, the defendant pleaded guilty on the condition that his sentence would not exceed 25 years to life, whereas he was exposed to a term of 75 years to life but for the agreed lid. It, too, was not an open plea.

Thus, in Jones and Cole, the estoppel principle described in Hester applied, because the defendants were not permitted to complain on appeal about sentences that were limited by the terms of their pleas to something lower than the maximum that could have been imposed in the absence of their agreements.

That is not the case here, as the agreement did not specify a lid. There was simply a recognition of the maximum possible sentence that could be imposed for each count, regardless of any agreement.

(Gary note: In Jones and Cole, as stated in Jones, had they a problem with their sentences, they should have attempted to withdraw their pleas in the trial court when the sentences were imposed. Though not expressed, implicit in the court’s reliance on Cole and Jones as examples where estoppel applies is the recognition that an appeal from a denied motion to withdraw a plea requires a certificate of probable cause. For a pretty good discussion of certificates of probable cause, I have included Buttram in the Authority listed below, but it was not cited by or discussed in the opinion.

(If your client wishes to appeal after entering a plea agreement of any sort, you need to research whether a certificate of probable cause is required. If there is any chance at all that the appeal would undermine any of the terms of the plea agreement, a certificate is likely required. A common myth is that a certificate is not required to appeal any errors alleged to have occurred after the plea. Don’t fall for it. Instead, the focus is on the plea agreement itself. And the requirement of a certificate of probable cause is separate from the doctrine of estoppel addressed in this opinion. In Jones, there was no disagreement that omission of the application of section 654 created an unauthorized sentence. The obstacle was that the defendant was estopped from raising the issue because of his agreement.

(Although they’re all important, one must-read case is People v. Panizzon (1996) 13 Cal.4th 68, which I’ve listed below but was not cited by the court here. The defendant pleaded guilty with an agreement on the sentence. Unbeknownst to him at the time of his own sentencing, his co-defendants apparently received significantly lower sentences. He appealed, claiming his sentence was disproportionate. Because he had not sought and been issued a certificate of probable cause, the Supreme Court concluded his appeal should have been dismissed. His challenge to his sentence, even on constitutional grounds, was a challenge to his plea, and thus a certificate was required.

(Also note that, under section 1237.5(a), a certificate of probable cause can be issued only where the application for a certificate shows “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.”

(Although it is described as a certificate of probable cause, “it is not the trial court’s responsibility to determine if there was error in the proceedings. The trial court’s sole objective is to eliminate those appeals having no possible legal basis by refusing to issue a certificate of probable cause. See People v. Holland (1978) 23 Cal.3d 77, 84, quoting People v. Warburton (1970) 7 Cal.App.3d 815, 819. Holland also reminds us (in footnote 6) that a petition for writ of mandate is the means by which one may challenge a denial of an application for certificate of probable cause. Neither Holland nor Warburton were cited in the opinion, because a certificate of probable cause was not even an issue in the case.

(Until 2022, if it appeared to the clerk of the superior court that a notice of appeal from a guilty plea required a certificate of probable cause, the clerk would mark the notice received but inoperable. To get past that hurdle, the notice would have to reflect that it is a challenge to the sentence and was not a challenge to the plea (or that it was an appeal from a guilty plea after a denial of a motion to suppress evidence on search and seizure grounds under section 1538.5. Rule 8.304(b) was amended effective 1/1/22, and now provides that “If the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies a certificate of probable cause, the appeal will be limited to issues that do not require a certificate of probable cause.” That was a vast improvement, from our defense perspective, because at least the notice of appeal initiated an appeal, albeit only on grounds not requiring a certificate.

(All of this Gary note is triggered by the court’s comment in Jones, cited by this court as distinguishable, that a defendant facing a 654 problem on an agreed-upon sentence must deal with it at the trial court level by moving to withdraw his or her plea timely. So this Gary note is really dealing with sub-sub-nonissues that I think you should nonetheless be aware of. Think of this lengthy aside as getting more for your money. Money? We ain’t got no money! We don’t need no money. You don’t have to show me any stinking money. Oops, sorry, got carried away a bit there.)

Authority:

People v. Jones (2013) 217 Cal.App.4th 735, 739

People v. Cole (2001) 88 Cal.App.4th 850, 856-858

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

People v. Buttram (2003) 30 Cal.4th 773,

People v. Panizzon (1996) 13 Cal.4th 68

People v. Holland (1978) 23 Cal.3d 77, 84

People v. Warburton (1970) 7 Cal.App.3d 815, 819

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. 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, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation 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

People v. Assad (2010) 189 Cal.App.4th 187, 200

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005

Fourth Holding:

As there was no discussion at sentencing of section 654, we must affirm the sentence if an implied finding that section 654 does not apply is supported by substantial evidence. The record demonstrate that the defendant committed the offenses the misdemeanor cases with the objective to steal the contents of his victims’ vehicles. There is no evidence to support a finding that he formed a separate intent and objective for each offense for which he was sentenced. Accordingly, the sentences on the misdemeanor counts must be stayed.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 730–731

People v. Coleman (1989) 48 Cal.3d 112, 162

Fifth Holding:

Separate restitution fines may be imposed for each case that are not consolidated, even if resolved jointly by plea bargain. Defendants who commit multiple crimes, and are consequently before the court in multiple cases when their pleas are taken, are properly subject to multiple fines. This straightforward application of the requirement that fines be imposed in every case serves the purpose of the state Restitution Fund, as well as the rehabilitative and deterrent functions of restitution fines.

Authority:

People v. Soria (2010) 48 Cal.4th 58, 64-66