Error and/or relief
The abstract of judgment must be corrected to reflect the credit for time served. Although the court acknowledged that section 654 applied, it erroneously imposed concurrent sentences rather than staying any. The minute order mentions only that the two counts were stayed, and does not reflect the order for concurrent sentences. The abstract of judgment indicates that the counts were both stayed and to be served concurrently. Remanded for correction of these errors.
First Holding:
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.
Authority:
People v. Zackery (2007) 147 Cal.App.4th 380, 385
People v. Mullins (2018) 19 Cal.App.5th 594, 612
Second Holding:
Sentences must be stayed to the extent that section 654 prohibits multiple punishment.
An act or omission that is punishable in different ways by different provisions of 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. Section 654 bars multiple punishment for offenses arising out of a single occurrence where all the offenses were incident to one objective.
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.
In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for one. It has long been established that the imposition of concurrent sentences is precluded by section 654 because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.
(Gary Musing, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term.
(Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, returning to the court the discretion to choose on which count punishment should be imposed and executed.
(There is likely language in one or more of the cases cited below that were decided during the time frame requiring imposition of sentence on the count carrying the longest term. Don’t be misled by that, as the law has changed, restoring the court’s discretion to choose among the counts.)
Authority:
PEN 654
People v. Jones (2012) 54 Cal.4th 350, 353
People v. Deloza (1998) 18 Cal.4th 585, 591
People v. Latimer (1993) 5 Cal.4th 1203, 1208
People v. McCoy (2012) 208 Cal.App.4th 1333, 1338
People v. Miller (1977) 18 Cal.3d 873, 887, abrogated on other grounds as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8;
People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413
Third Holding:
A sentencing court must award credits for all days in custody up to and including the day of sentencing. This includes partial days. Because an abstract of judgment represents the process and authority for carrying the judgment and sentence into effect, it is paramount that the abstract reflects the appropriate sentence and credits.
Authority:
PEN 2900.5
People v. Bravo (1990) 219 Cal.App.3d 729, 735
People v. King (1992) 3 Cal.App.4th 882, 886
People v. Mitchell (2001) 26 Cal.4th 181, 185
Fourth Holding:
At sentencing, the court imposed a $300 restitution fine, pursuant to section 1202.4(b), which it stayed. It also imposed and suspended a parole revocation restitution fine under section 1202.45. The abstract of judgment, however, erroneously lists the fines as $900. It also fails to state the restitution fine is stayed. We therefore order the errors in the amount of the restitution fines be corrected.
Authority:
People v. Lipscomb (2022) 87 Cal.App.5th 9, 22 [a court may only impose one restitution fine per case, so it is error to impose a restitution fine as to each count]
Fifth Holding:
The court also imposed ancillary assessments. We remand to give the defendant an opportunity to demonstrate whether he has the ability to pay, under equal protection principles, inasmuch as the court has the authority to waive such fees entirely in civil matters.
Authority:
People v. Kopp (2025) 19 Cal.5th 1, 9, 30
Sixth Holding:
Due process does not require an ability to pay hearing before imposing every punitive fine. Instead, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. Four factors are relevant to determining whether a fine is unconstitutionally excessive: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.
Authority:
U.S. Const., Eighth Amendment
Cal. Const., art. I, sec. 17
People v. Kopp (2025) 19 Cal.5th 1, 11 & fn. 6, 23
United States v. Bajakajian (1998) 524 U.S. 321, 327–328
People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728