Category Archives: Sentencing

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

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

Abstracts and Minutes, Fines and fees, Sentencing

Case 000865

Posted on by Gary McCurdy

Error and/or relief

We order correction of the abstract of judgment, which incorrectly lists the fines and fees imposed in this case as stayed, not waived, contrary to the trial court’s oral pronouncement.

Holding:

We order correction of the abstract of judgment, which incorrectly lists the fines and fees imposed in this case as stayed, not waived, contrary to the trial court’s oral pronouncement.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court may correct a clerical error in an abstract of judgment at any time]

Abstracts and Minutes, Fines and fees, Sentencing

Case 000864Abstract of judgment or minute order, Fines and fees, Restitution fine, Sentencing,

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the restitution fine must be stricken because it is more than 10 years old.

Further, the abstract of judgment must be correct to reflect that the sentence was 68 years to life, not the 69 years to life shown in the abstract.

First Holding:

AB 1186 (2023-2024 Reg. Sess.) amended section 1465.9 to add subdivision (d), which provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

By its plain terms, the subdivision applies retroactively to make any unpaid portion of the restitution fine unenforceable and uncollectible upon the expiration of the 10-year time period, and also mandates that any portion of a judgment imposing such a fine be vacated. We will modify the judgment to vacate the restitution fine.

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626 [ameliorative changes of AB 1869 (2019-2020 Reg. Sess.), which enacted section 1465.9, applied retroactively; the subdivisions enacted by that bill have materially identical language to subdivision (d)]

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted (on a different issues) Mar. 11, 2026, S295038 [vacating restitution fine older than 10 years where the fine was reimposed at resentencing]

Second Holding:

The abstract of judgment does not accurately reflect the oral pronouncement of judgment. The trial court imposed an indeterminate term of 68 years to life for count 1. But the abstract of judgment incorrectly shows an indeterminate term of 69 years to life.

Because we will direct the trial court to prepare an amended abstract of judgment reflecting the modified judgment, we will also direct that the amended abstract of judgment accurately reflect the term imposed for count 1.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385 [the oral pronouncement of judgment controls where there is a discrepancy between it and the abstract of judgment]

Appellate Principles, Discretion, Duty of the court, Plea bargains, Sentencing

Case 000863

Posted on by Gary McCurdy

Error and/or relief

We modify the sentence by vacating the trial court’s stay of punishment for the firearm enhancement and instead strike the punishment.

First Holding:

After taking the defendant’s admission to the firearm enhancement, the trial court did not impose additional punishment for it. Instead, the trial court incorrectly imposed and stayed the low term of three years for the firearm enhancement. Generally, a court has no discretion to stay an enhancement.

The court must either impose or strike the enhancement. Under section 1385(b)(1), the court may also strike the punishment, instead of the enhancement itself. The trial court’s stay of the enhancement resulted in an unauthorized sentence.

Authority:

PEN 1385(b)(1)

People v. Haykel (2002) 96 Cal.App.4th 146, 151

People v. Lopez (2004) 119 Cal.App.4th 355, 364-365

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123

People v. Bradley (1998) 64 Cal.App.4th 386, 391

Second Holding:

A resentencing hearing is unnecessary because the correction does not require resolving a factual dispute or exercising discretion. The trial court did not intend to dismiss the firearm enhancement because an admission to it was required by the plea agreement. Nor did the trial court intend to impose additional punishment for the firearm enhancement.

The record clearly supports the court’s intention to strike the punishment for the enhancement had it known a stay was not possible. We accordingly modify the sentence by vacating the trial court’s order that imposed and stayed the three-year term for the firearm enhancement as to count 1. We further modify the sentence to comply with the terms of the plea agreement by striking the punishment for the firearm enhancement pursuant to section 1385(b)(1).

Authority:

PEN 1260

People v. Vieira (2005) 35 Cal.4th 264, 294

People v. Alford (2010) 180 Cal.App.4th 1463, 1473