Monthly Archives: September 2026

Sentencing, Standard of review

Case 000871

Posted on by Gary McCurdy

Error and/or relief

The court was not statutorily authorized to impose a section 12022.53(c) enhancement for a section 26100 offense (discharging a firearm from a motor vehicle). We remand the case to the trial court for resentencing.

First Holding:

We review the trial court’s sentencing decisions for abuse of discretion. In deciding whether the trial court has abused its discretion, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847

People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746

Second Holding:

Section 12022.53, in relevant part, sets forth escalating additional and consecutive penalties, beyond that imposed for a substantive crime, for the use of a firearm in the commission of specified felonies. Section 12022.53(c) mandates the imposition of a 20-year term for the personal and intentional discharge of a firearm in the commission of one of the section 12022.53(a) felonies, which does not include section 26100.

Imposition of that enhancement was an abuse of discretion, which resulted in an unauthorized sentence.

Authority:

PEN 12022.53

Third Holding:

The People suggest this court can modify the sentence and impose a lesser included section 12022.5(a) enhancement of 10 years. But section 12022.5(a) provides that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle. Thus, we remand the case to the trial court for resentencing.

Authority:

People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2

People v. Tirado (2022) 12 Cal.5th 688, 700, fn. 12

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