Category Archives: Sentencing

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

Case 000998

Error and/or relief

We must reverse the defendant’s conviction under section 4501(a) because it duplicates his conviction under section 4500.

First Holding:

The defendant was convicted of section 4500 and 4501. In essence, section 4500 provides that any person serving a life sentence who, with malice aforethought, commits an assault with a deadly weapon or by means of force likely to produce great bodily injury is punishable by death or life without the possibility of parole. If the victim does not die within a year and a day, the punishment is life without the possibility of parole for nine years.

In essence, section 4501 provides that, except as provided in section 4500, a prisoner who commits an assault with a deadly weapon or by means of force likely to produce great bodily injury is punishable by two, four, or six years, to be served consecutively.

Authority:

PEN 4500

PEN 4501

Second Holding:

Section 954 allows prosecutors to charge different statements of the same offense, but does not allow a defendant to be convicted for multiple statements of the same offense. A defendant cannot be convicted of two offenses if one is necessarily included in the other or if the legislature intended to define a single offense that can be committed multiple ways–in other words, if the convictions are different statements of the same offense.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 648-650

Third Holding:

There are two tests to determine whether an uncharged offense is necessarily included within a charged offense: the “elements” test and the “accusatory pleading” test.

Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.

Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.

Authority:

People v. Reed (2006) 38 Cal.4th 1224, 1227–1228

Fourth Holding:

To determine if two convictions run afoul of section 954, we consider the elements as well as legislative intent. If one is a necessarily included offense of the other, they are not different offenses. Even if the elements differ, two offenses can be essentially the same if legislative intent shows this is so. We consider the text and structure of the statutes, the elements of the offenses, the punishments, the legislative history, and the historical context of the statutes’ enactment.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 637-638, 648

People v. Aguayo (2022) 13 Cal.5th 974, 982–983

Fifth Holding:

A defendant may be convicted only of section section 4501(a) or of section 4500, but not both for the same conduct. We direct the trial court to reverse the defendant’s conviction under section 4501(a) and to strike the sentence and any fees imposed in connection with that charge.

Authority:

People v. Nava (2007) 107 Cal.App.5th 624, 626

Case 000997

Error and/or relief

The approved plea agreement provided for dismissal of count II, but that count was not dismissed at sentencing. Further, the court failed to impose a suspended parole revocation fine matching the amount imposed as the restitution fine.

The judgment is modified to dismiss count II and impose a $300 parole revocation fine, which shall be suspended unless parole is revoked. As modified, the judgment is affirmed. The trial court is directed to amend the sentencing minute order to reflect this modification. However, because the abstract of judgment already reflects the $300 suspended parole revocation fine, no amendment of that document is necessary.

First Holding:

When a guilty or no contest plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.

Authority:

People v. Panizzon (1996) 13 Cal.4th 68, 80

Second Holding:

When the trial court imposes a sentence that includes a period of parole, and it also imposes a restitution fine, a matching suspended parole revocation fine must be imposed. Omission of a mandatory parole revocation fine is an unauthorized sentence that we can correct on appeal.

Authority:

PEN 1202.45

People v. Smith (2001) 24 Cal.4th 849, 853

Case 000995

Error and/or relief

This appeal is from the resentencing under section 1172.75. The restitution fine must be stricken, as now it was imposed more than 10 years ago. There are errors in the abstract of judgment that must be corrected.

First Holding:

The trial court originally imposed the restitution fine in August 2015. Since then, the Legislature amended section 1465.9 to provide that restitution fines under section 1202.4 are uncollectible and unenforceable after 10 years and that the part of the judgment imposing the fine must be vacated. While the court reimposed the $4,000 restitution fine less than 10 years after the original sentencing, 10 years have passed since the court originally imposed the $4,000 restitution fine, and thus the balance is now unenforceable and uncollectible. We will therefore strike the restitution fine.

Authority:

PEN 1465.9(d)

People v. Kopp (2025) 19 Cal.5th 1, 17

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted on a different issue Mar. 11, 2026, S295038

Second Holding:

The abstract lists the prior prison term enhancement as stayed, when in fact that enhancement was stricken by the trial court. In addition, the four-month sentence on count three is listed as concurrent when it should be listed as consecutive. We will therefore order amendment of the abstract to correct these errors

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral pronouncement of judgment ordinarily controls]

Case 000993

Error and/or relief

The trial court failed to properly advise the defendant of his right to a jury trial on certain aggravating factors, and that his admissions to those factors were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s sentence and remand the matter for a full resentencing.

Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through (5). During the admission colloquy, the trial court advised appellant that he only had the right to a court trial on the truth of the allegations. We agree with the defendant that this advisement was incorrect, and that the record does not establish that his admissions were knowing, intelligent, and voluntary.

The factors in question under rule 4.421(b) are, in essence:
(2) The defendant’s prior convictions are numerous and of increasing seriousness;
(3) The defendant has served prior terms in prison;
(4) The defendant was on probation or parole when he committed the alleged offenses; and
(5) The defendant’s prior performance on probation and parole was unsatisfactory.

First Holding:

A criminal defendant has the right to a jury trial on the facts underlying aggravating factors used to justify imposition of an upper term sentence under section 1170(b). That right is not merely a state law entitlement, but is constitutionally required for all aggravating facts.

Authority:

PEN 1170(b)

People v. Lynch (2024) 16 Cal.5th 730, 757

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Section 1170(b)(3) provides a limited exception for prior convictions, permitting the court to consider them based on a certified record of conviction without submitting the prior convictions to a jury.

Our Supreme Court has clarified, however, that the exception is narrowly limited to the bare fact of a prior conviction and its elements.

Applying this principle, Wiley held that jury findings were required for aggravating factors based on increasingly serious prior convictions and unsatisfactory prior performance on probation or parole.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Third Holding:

Because the Sixth Amendment affords a defendant the right to a jury trial on alleged aggravating factors, a valid admission to those factors requires the same advisements and waivers required for a stipulation to a prior conviction.

This includes advisement and waiver of the defendant’s Boykin-Tahl rights: the right to a jury trial, the right to confront adverse witnesses, and the privilege against self-incrimination.  A defendant must also be advised of the penal consequences of the admission.

If the trial court fails to properly advise the defendant of these rights or consequences, reversal is required unless the record affirmatively shows, under the totality of the circumstances, that the admission was knowing, intelligent, and voluntary.

Authority:

People v. Kinnear (2025) 116 Cal.App.5th 1116, 1127

People v. Mitchell (2026) 19 Cal.5th 729, 745–746

Boykin v. Alabama (1969) 395 U.S. 238

In re Tahl (1969) 1 Cal.3d 122

People v. Cross (2015) 61 Cal.4th 164, 170

People v. Mosby (2004) 33 Cal.4th 353, 361–365