Category Archives: Sentencing

Abstracts and Minutes, Pleading, Sentencing

Case 000062

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

Evidence, Sentencing, Sufficiency of and substantial evidence

Case 000061

Posted on by Gary McCurdy

Error and/or relief

We vacate the robbery-murder special circumstance finding for lack of sufficient evidence. We otherwise affirm the judgment.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. These same standards apply to challenges to the evidence underlying a true finding on a special circumstance.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 804

Second Holding:

The only admissible evidence that the four defendants agreed to rob the victim is the second codefendant’s testimony to that effect. And the only admissible evidence that a robbery actually occurred comes from that second codefendant’s testimony that some of the codefendants eventually took the victim’s wallet from him, scanned it for valuables, and kept it. However, it is well-settled that because of the reliability questions posed by accomplice testimony, such testimony by itself is insufficient as a matter of law to support a conviction.

Authority:

People v. Romero and Self (2015) 62 Cal.4th 1, 32

Third Holding:

The only other evidence of a conspiracy to robbery are those of a third and fourth codefendants made during a Perkins operation. Such evidence cannot corroborate the second codefendant’s testimony, because the required corroboration must come from a source other than another accomplice.

Authority:

People v. Price (1991) 1 Cal.4th 324, 444, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161

Fourth Holding:

In a “Perkins operation,” a suspect is placed in a cell with an undercover law enforcement agent, and their conversation is audio recorded.

Authority:

Illinois v. Perkins (1990) 496 U.S. 292

Sentencing

Case 000060

Posted on by Gary McCurdy

Error and/or relief

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.

First Holding:

The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months.

Authority:

Pen. Code, sec. 1170.1(a)

People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months]

Second Holding:

The court may correct unauthorized sentence at any time. [GARY NOTE: This holding may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review at least the three cases that I cite below Scott–not cited in this unpublished opinion–and the cases they cite if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Singleton (2025) 113 Cal.App.5th 783

People v. Boyd (2024) 103 Cal.App. 56

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

Third Holding:

Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [on the principle that the oral pronouncement normally controls]

Sentencing

Case 000058

Posted on by Gary McCurdy

Error and/or relief

The fines and fees not mentioned in the trial court’s oral imposition of sentence are improper and must be stricken.

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

[Cf.] People v. Cleveland (2004) 32 Cal.4th 704, 768

Second Holding:

When a trial court does not orally impose discretionary restitution and parole revocation fines under sections 1202.4 and 1202.45 and the prosecution does not object, as here, the prosecution forfeits any objection on appeal and the fines or fees must be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

Third Holding:

When a defendant has been convicted of certain listed offenses, including any crime that requires sex offender registration pursuant to section 290(c) at the time of sentencing the trial court shall consider issuing an order restraining the defendant from any contact with a victim of the crime. It was error to include Jane Doe in the protective order because she was not a victim of the crime, and even as a witness there was no indication that the defendant had made threats toward her within the meaning of section 136.2(i)(2).

Authority:

PEN 136.2(i)(1)

PEN 136.2(i)(2)

People v. Walts (2025) 112 Cal.App.5th 127, 143 [The amendment to section 136.2(i)(1) reflects that the Legislature intended that protective orders should only be available for any person who is a victim of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted]

Fourth Holding:

The defendant should have objected to the protective order in trial court, thus forfeiting the issue, but we will nonetheless consider his argument to the extent that it raises a question of law.

Authority:

People v. Walts (2025) 112 Cal.App.5th 127, 140

Fifth Holding:

We review the trial court’s result, not its rationale.

Authority:

People v. Zapien (1993) 4 Cal.4th 929, 976

Amelioration, Sentencing

Case 000057

Posted on by Gary McCurdy

Error and/or relief

Rhodius resolved a split of authority among the Courts of Appeal regarding resentencing eligibility when a defendant’s sentence for a prior prison enhancement was stayed and never executed. Rhodius held that defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75. Pursuant to Rhodius, the court therefore reversed the trial court’s order denying defendant a resentencing hearing, and remanded for the trial court to hold that hearing.

Holding:

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050