Daily Archives: November 2, 2026

Appellate Principles, Sentencing

Case 001145

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing a post-sentencing protective order and in doubling the middle term when the strike had been dismissed as part of the plea agreement.

First Holding:

A court may issue a protective order to protect a witness or victim during the pendency of a criminal case. Generally, protective orders issued under section 136.2 are limited in duration and may not extend beyond the court’s jurisdiction. It was therefore error for the court to impose a protective order to extend past sentencing.

Authority:

PEN 136.2

People v. Ponce (2009) 173 Cal.App.4th 378, 382

Second Holding:

The issue of the propriety of the issuance of a protect order may be raised on appeal despite a lack of objection.

(Gary note: The court cited Ponce, but did not elaborate on its holding. I have set forth the Ponce actual holding.)

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381 (As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a three-year protective order during sentencing, we will consider Ponce’s claim on the merits.)

Third Holding:

It was error to impose a second-strike punishment, because the defendant did not admit the prior strike. The strike prior allegation was dismissed when the defendant was sentenced.

(Gary note: The court did not cite any authority for this holding, most likely because it is so obvious. I have listed the two statutes pertaining to the Three Strikes law for your convenience.

(Section 667 was amended by the Legislature in 1994 to add the Strikes alternative sentencing scheme in addition to the already-existing section 664(a) enhancement on serious felony convictions for each prior conviction of a serious felony brought and tried separately.

(Section 1170.12 was added by initiative (Proposition 184) later in 1994. Somewhat confusingly, perhaps, both statutes co-exist. Both were amended in 2012 by Proposition 36.)

Authority:

PEN 667(b)-(j)

PEN 1170.12

Abstracts and Minutes, Amelioration, Sentencing

Case 001144

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court did not orally reimpose the $10,000 originally imposed more than 10 years earlier. The abstract of judgment, however, reflects the $10,000 fine previously entered. The abstract of judgment must be corrected.

First Holding:

A written recording of a judgment, such as a minute order or abstract of judgment, may not modify the judgment, and where there is a discrepancy between the oral pronouncement of judgment and a written record, the oral pronouncement controls.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 389

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Second Holding:

A restitution fine older than 10 years must be vacated, and no unpaid balance may be collected.

(Gary note: I “made up” that second holding, although it is a correct statement of the law. Appellate counsel raised the argument, but the appellate court concluded that it did not need to reach the issue. For whatever reason, the trial court did not reimpose a restitution fine at all. Thus, the sole problem was the incorrect abstract of judgment. Nonetheless, I thought it might be useful to remind readers of section 1465.9.)

Authority:

PEN 1465.9(d)