Category Archives: Sentencing

Duty of the court, Gary Musings, Sentencing

Case 001127

Posted on by Gary McCurdy

Error and/or relief

Whether or not the court had the right to issue a protective order during the proceedings prior to entry of judgment, the court failed to terminate the protective order following the judgment. Remanded for that purpose.

First Holding:

The trial court issued a pretrial criminal protective order on behalf of the victim after the defendant entered his plea. The trial court did not make any findings on the record but ordered no contact with the victim and a 100-yard stay away order There were no objections from counsel. According to the criminal protect order, the orders remain in effect until further court order.

The court had no authority to issue a protective order under section 136.2(a) after sentencing, and it did not issue one. But the order that it made after the guilty plea stated it was to remain in effect until further order of the court, which the court never made. We therefore remand to the trial court to issue a proper notice of termination of protective order so that proper authorities will know that the order has expired.

Authority:

People v. Lopez (2022) 75 Cal.App.5th 227, 236

Second Holding:

Section 136.2 is limited to the pendency of a criminal action because section 136.2 is aimed at protecting only victims or witnesses.

Authority:

PEN 136.2(a)

People v. Selga (2008) 162 Cal.App.4th 113, 118

People v. Stone (2004) 123 Cal.App.4th 153, 159 superseded in statute as stated in Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 960, related to the issuance of restraining orders in domestic violence cases

(Gary Musings:

(This case had an interesting twist. The attorney filed a brief under People v. Wende (1979) 25 Cal.3d 436. A Wende brief is filed when appointed counsel determines that there are no arguable issues to raise in the appeal. After setting forth the statements of the case and facts sufficient to guide the Court of Appeal, the brief asks the appellate court to independently review the entire record to determine whether there are issues that counsel should brief. The defendant is given an opportunity to submit a supplemental brief in which the defendant argues whatever the defendant believes to be an issue.

(The Wende brief process is available only in appointed appeals, and applies only to the first appeal of right–essentially to the direct appeal from the conviction initiated within the timeframe for the filing of a notice of appeal following entry of judgment. Wende was California’s ultimate answer to the U.S. Supreme Court’s decision in Anders v. California (1967) 386 U.S. 738. In essence, I assume there was concern that appointed counsel may have less incentive to go the whole mile for the client.

(Keep in mind we’re talking about conditions more than 60 years ago, around the time Gideon v. Wainwright (1963) 372 U.S. 335 extended the Sixth Amendment right to counsel to the states under the Fourteenth Amendment. While I am certain that there were many attorneys who diligently sacrificed many hours for their indigent client, I also assume that there must have been concern that maybe not all attorneys put in as much effort on appointed cases as they would for their wealthy clients. The independent review of the record by the court was designed to protect the indigent defendants from inadequate effort.

(There’s probably much more to it than I stated, and perhaps I even have missed the mark on why Anders came about. But regardless of what was written, I suspect there was some wink wink nod nod behind the scenes recognizing that some cases demonstrated a tad bit of underrepresentation. Maybe I’m wrong. It doesn’t change the quirk in this case, however.

(By the way, the same concern–whatever it might have been–does not arise with retained counsel. Presumably retained attorneys have a financial incentive to do as much as they possibly can for their clients.

(All that is background–accurate or not–for the twist in this case. The defendant’s supplemental brief essentially was a challenge to his guilty plea. Thus, a certificate of probable cause would normally be required, under section 1237.5 and Rules of Court, rule 8.304(b). Had appointed counsel attempted to raise the arguments the defendant raised on his own, the court would not have been permitted to address the issues, because there is no latitude when an issue requires a certificate of probable cause and one has not been issued.

(But in this case, the court concluded that Wende requires it to conduct a full review of the record and to address with reasons all of the issues presented by the defendant in a supplemental brief. Specifically, in People v. Kelly (2006) 40 Cal.4th 106, the Supreme Court imposed a judicial principle that when an indigent defendant submits a supplemental brief following counsel’s filing of a Wende brief, the appellate court must address all of the issues raised and state reasons for its conclusions on their merits.

(In this case, the Court of Appeal concluded that the lack of a certificate of probable cause was not a bar to its review of the issues raised by the defendant himself in a supplemental brief, in compliance with Wende and Kelly.

(Keep in mind that this is NOT a published opinion, and thus cannot be cited to compel an appellate court to ignore the absence of a certificate of probable cause when reviewing a defendant’s post-Wende supplemental brief. But Wende and Kelly were published opinions, and there’s no reason that I am aware of that counsel could not urge the court to grant a petition for rehearing if the court declined to address the defendant’s supplemental brief issues because of a lack of a certificate of probable cause.)

Authority (the middle two only in Gary Musings):

People v. Wende (1979) 25 Cal.3d 436

Gideon v. Wainwright (1963) 372 U.S. 335

Anders v. California (1967) 386 U.S. 738

People v. Kelly (2006) 40 Cal.4th 106

Sentencing

Case 001121

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing the defendant to concurrent terms, because section 654 permits punishment on only one of them. The sentence on one of them must be imposed then stayed.

Holding:

Under section 654(a), an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one. If section 654(a) prohibits multiple punishment, the court must stay execution of the affected sentence. Both counts applied to the same act by the defendant, driving while under the influence of alcohol.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 337

People v. Alford (2010) 180 Cal.App.4th 1463, 1473-1474

Duty of the court, Jurisdiction, Pleading, Sentencing

Case 001120

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion for a Franklin hearing.

First Holding:

Franklin held that youth offenders must have an opportunity to put on the record information relevant to any eventual Penal Code section 3051 youth offender parole hearing.

Authority:

People v. Franklin (2016) 63 Cal.4th 261

In re Cook (2019) 7 Cal.5th 439

Second Holding:

The defendant committed his crime several decades earlier, when he was 21. After the defendant was sentenced, section 3051 became effective in 2014. Section 3051(b) requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th, or 25th year of a youth offender’s incarceration.

The date of the hearing depends on the youth offender’s controlling offense, defined as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment. The section applies to offenders like the defendant who committed their controlling offense when they were 25 years old or younger.

Authority:

PEN 3051

People v. Franklin (2016) 63 Cal.4th 261, 277

Third Holding:

After section 3051’s passage, Franklin held that the section contemplated that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate consideration by the board. Under section 3051(f)(2), persons with information about youth offender may submit statements for review by board. Assembling such mitigating information will typically be more easily done at or near the time of the juvenile’s offense.

Authority:

PEN 3051(f)(2)

People v. Franklin (2016) 63 Cal.4th 261, 283

Fourth Holding:

Cook held that youth offenders whose convictions are final may move in the trial court for a Franklin hearing under section 1203.01. Section 1203.01 provides that postjudgment, a trial court may generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation.

Authority:

In re Cook (2019) 7 Cal.5th 439

Fifth Holding:

The trial court erred in concluding it did not have jurisdiction to act because the filing of a notice of appeal on an earlier motion for discovery deprived the trial court of jurisdiction to proceed.

Generally, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until it determines the appeal and issues the remittitur, thereby divesting the trial court of jurisdiction over anything affecting the judgment.

However, appellate jurisdiction does not divest the trial court of all power to act. Perfection of an appeal stays proceedings in the trial court only of matters embraced in the matter being appealed. The trial court otherwise may act on any matter embraced in the action and not affected by the judgment or order on appeal.

Authority:

CCP 916

People v. Flores (2003) 30 Cal.4th 1059, 1064

Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089

Sixth Holding:

The Franklin motion was unaffected by and unrelated to the order on appeal. That is, the appeal pending when the defendant filed his Franklin motion concerned a motion for postconviction discovery. In contrast, proceedings under Franklin constitute a remedy of evidence preservation.

Also, Franklin proceedings are unrelated to the validity of the defendant’s sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process disturbs the finality of state convictions. Thus, the Franklin hearing the defendant requested was not embraced in the order on appeal and therefore the trial court had jurisdiction to hear his motion.

Authority:

In re Cook (2019) 7 Cal.5th 439, 446-447, 451

People v. Lizarraga (2020) 56 Cal.App.5th 201, 207 [Franklin hearing does not expose a defendant to increase or decrease in sentence]

Seventh Holding:

The court erred in denying the motion as not being in compliance with Cook. The defendant’s motion was sufficient to initiate Franklin proceedings. The requirements for a Franklin motion are minimal, and the motion need not describe in detail the evidence the youth offender seeks to preserve. Instead, where a motion includes relevant criminal case information and legal authority and establishes eligibility for a youth offender parole hearing, the motion should be granted.

Here, the defendant’s motion cited section 1203.01 and 3051 and Cook in his motion. He stated his qualifying age, the original case number. He identified the controlling offense of murder, requested counsel, said he had never had a Frankling hearing, and asked for an opportunity to make a record of his characteristics as a youth offender. Based on this information, the trial court should have granted the defendant’s motion to initiate Franklin proceedings.

We express no opinion on whether the trial court must hold a formal Franklin hearing.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150, 152 [legally sufficient Franklin motion only requires defendant be given opportunity to place additional evidence in record]

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 893–894 [trial court erred by denying Franklin motion that identified original case, relevant law, defendant’s age, sentence, and relief requested]

In re Cook (2019) 7 Cal.5th 439, 446-447, 459 [court has discretion to determine how to conduct process efficiently]

Sentencing

Case 001119

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one more day of credit for time served.

Holding:

A defendant convicted of a felony or misdemeanor shall be credited for all days in custody. Days in custody include the day of arrest through and including the day of sentencing.

(Gary note: I suspect that this error crops up when the person calculating the days in custody simply subtracts the date of arrest from the date of sentencing. For example, supposed a defendant is arrested on January 1 and is sentenced on January 30. Subtracting the date of arrest from the sentencing date yields 30 days (31-1=30).

(But days in custody are to be calculated on a counting basis, not on a “find the difference between two dates” subtraction basis. Since the credit for time served includes the date of arrest and the date of sentencing, counting Jan 1 through Jan 31 yields 31 days credit for actual days in custody.)

Authority:

PEN 2900.5(a)

People v. Buckhalter (2001) 26 Cal.4th 20, 30

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Abstracts and Minutes, Fines and fees, Sentencing

Case 001118

Posted on by Gary McCurdy

Error and/or relief

There are several errors in the abstract of judgment that require correction.

First Holding:

A $300 restitution fine that was not orally imposed appears in the abstract of judgment. Where the oral pronouncement of judgment and the abstract of judgment conflict, the oral pronouncement controls. Accordingly, we direct the trial court to issue a corrected abstract of judgment striking the $300 restitution fine.

Authority:

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

People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416

Second Holding:

Further, the defendant was convicted of an offense that carries a life term plus a firearm enhancement that carries 25 years to life. The court pronounced and the abstract reflects a sentence of 32 years to life: ostensibly seven years to life on the conviction and 25 years to life on the enhancement.

But while a sentence to a life term requires at least seven years in custody before parole elibility, the “seven years” is not part of the sentence. Accordingly, we modify the sentence and direct the court to issue a corrected abstract of judgment.

Authority:

People v. Wong (2018) 27 Cal.App.5th 972, 977, fn. 4

Third Holding:

By failing to object at the time of the order, the defendant forfeited his argument that it was improper to delegate authority to the probation officer to determine the amount of restitution.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15 [When a defendant does not object to allowing the probation officer to determine the amount of restitution, the propriety of such an order has been waived for appellate purposes.]