Category Archives: Sentencing

Abstracts and Minutes, Effective assistance of counsel, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000810

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 654 by imposing consecutive prison terms for the vandalism and burglary convictions because they arose from the same course of conduct. The vandalism consisted of using a drill drill and crowbar to take the door off its hinges to gain entry as part of the burglary.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. Thus, the statute bars multiple punishments for a single act that violates more than one criminal statute, and for multiple acts where those acts comprise an indivisible course of conduct incidental to a single criminal objective and intent.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1208

Neal v. State of California (1960) 55 Cal.2d 11, 19

Second Holding:

When multiple offenses are committed during a course of criminal conduct deemed indivisible, the offenses are treated as only one punishable act. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once.

If, however, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Beamon (1973) 8 Cal.3d 625, 637, 639

Third Holding:

Whether the defendant harbored separate objectives during a course of criminal conduct is primarily a question of fact for the trial court. We review a challenge under section 654 for substantial evidence to support the trial court’s determination. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Coleman (1989) 48 Cal.3d 112, 162

People v. Avalos (1996) 47 Cal.App.4th 1569, 1583

People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

However, a decision supported by a mere scintilla of evidence need not be affirmed on appeal. Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding. The ultimate test is whether a reasonable trier of fact would make the challenged ruling considering the whole record.

Authority:

In re James R. (2009) 176 Cal.App.4th 129, 135

Fifth Holding:

The failure of defense counsel to object to the court’s decision not to stay the punishment does not forfeit. the issue. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. This is because a sentence that is not authorized by law exceeds the jurisdiction of the court.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 550, fn. 3

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Sixth Holding:

There was no evidence that the defendant harbored separated objectives.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335 [We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.]

Seventh Holding:

The abstract of judgment must be corrected because it fails to reflect the oral pronouncement of judgment in several respects. In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Abstracts and Minutes, Sentencing

Case 000809

Posted on by Gary McCurdy

Error and/or relief

The court miscalculated the credit for time served and gave the defendant one less than he earned. That abstract of judgment msut be corrected as well.

Holding:

The trial court awarded defendant 278 days of actual custody credit and 278 days of conduct credit, for a total of 556 days. However, defendant was arrested on February 21, 2024 and sentenced on November 25, 2024. The court therefore should have awarded him 279 days of actual custody credit, and 278 days of conduct credit, for a total of 557 days of presentence custody credit. The minute order and abstract of judgment both credit defendant 279 actual days and 278 conduct days but nevertheless record 556 as the total number of days. Accordingly, we will order the judgment modified to reflect the correct number of total credit days.

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1457

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

Abstracts and Minutes, Sentencing

Case 000806

Posted on by Gary McCurdy

Error and/or relief

The minute orders must be corrected to reflect that the court orally ordered 32 months as the term of probation, not the 36 months recorded in the minute order.

Holding:

The trial court must pronounce judgment in open court and on the record. The trial court is generally required to include all aspects of a judgment in its oral pronouncement of judgment. Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error. The abstract of judgment does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. We may correct a court’s written order or judgment that does not accurately reflect its oral pronouncement

Authority:

PEN 1193

PEN 1202

People v. McGahuey (1981) 121 Cal.App.3d 524, 530

People v. Leon (2020) 8 Cal.5th 831, 855

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

People v. Mesa (1975) 14 Cal.3d 466, 471

Abstracts and Minutes, Sentencing

Case 000805

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the oral pronouncement of judgment.

Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. Generally, the oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. We therefore “remand the matter to the trial court to delineate any fines and fees imposed, and their statutory bases.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Duty of the court, Plea bargains, Sentencing

Case 000804

Posted on by Gary McCurdy

Error and/or relief

When the defendant pleaded guilty, the agreement was that he would be placed on probation, and if he violated probation and it was revoked, he would be sentenced to prison for three years. It was error on revocation of probation for the court to sentence him to four years.

First Holding:

The process of plea negotiation contemplates an agreement negotiated by the People and the defendant and approved by the court. Pursuant to this procedure the defendant agrees to plead guilty or no contest in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged.

This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment, by the People’s acceptance of a plea to a lesser offense than that charged, either in degree or kind, or by the prosecutor’s dismissal of one or more counts of a multi-count indictment or information.

Judicial approval is an essential condition precedent to the effectiveness of the bargain worked out by the defense and prosecution. But implicit in all of this is a process of bargaining between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 929–930

People v. Prudholme (2023) 14 Cal.5th 961, 970

Second Holding:

The prosecutor is the only party authorized to negotiate on behalf of the state, and the trial court cannot substitute itself in place of the prosecutor. Such judicial activity would contravene express statutory provisions requiring the prosecutor’s consent to the proposed disposition, would detract from the judge’s ability to remain detached and neutral in evaluating the voluntariness of the plea and the fairness of the bargain to society as well as to the defendant, and would present a substantial danger of unintentional coercion of defendants who may be intimidated by the judge’s participation in the matter.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 930

Third Holding:

Because a negotiated plea agreement is a form of contract, it is interpreted according to general contract principles. Acceptance of the agreement binds the court and the parties to the agreement. [When a guilty or nolo contendere 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. Segura (2008) 44 Cal.4th 921, 930-931

Fourth Holding:

Although a plea agreement does not divest the court of its inherent sentencing discretion, a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain.

A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound. Should the court consider the plea bargain to be unacceptable, its remedy is to reject it, not to violate it, either directly or indirectly. Once the court has accepted the terms of the negotiated plea, it lacks jurisdiction to alter the terms of a plea bargain so that it becomes more favorable to a defendant unless, of course, the parties agree.

For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, but it cannot change that bargain or agreement without the consent of both parties.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 931

Fifth Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

Authority:

PEN 1192.5(b)

Sixth Holding:

Thus, a court may not modify the terms of a plea agreement while otherwise leaving the agreement intact, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved. When a court accepts a plea bargain, it must impose a sentence within the limits of that bargain.

Authority:

People v. Brooks (2020) 58 Cal.App.5th 1099, 1107

People v. Segura (2008) 44 Cal.4th 921, 931

People v. Cunningham (1996) 49 Cal.App.4th 1044, 1047

Seventh Holding:

It is well settled that a criminal defendant cannot argue for the first time on appeal that the trial court aggravated a sentence based on items contained in a probation report that were erroneous or otherwise flawed. The defendant did not object to the recommendation in the probation report that he be sentenced to four years, nor did he object when the court imposed that term.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351–352

People v. Victorian (1992) 2 Cal.App.4th 954, 958

Eighth Holding:

Defendant raises the alternate argument that the trial attorney was prejudicially ineffective for failing to object to the trial court’s imposition of the four-year term. To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced.

Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different. To prevail on a claim of ineffective assistance on appeal the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.

Authority:

People v. Cash (2002) 28 Cal.4th 703, 734

Ninth Holding:

In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.

Authority:

People v. Jones (2003) 29 Cal.4th 1229, 1254

Tenth Holding:

It appears that between the time of the plea agreement in 2022 and the revocation proceedings in 2025, the trial court and the parties were unaware of the terms and conditions of the plea agreement, that the court did not withdraw its approval of the plea agreement, the plea agreement was never modified, and the probation report’s recommendation of the upper term violated the terms and conditions of the plea agreement as agreed to by the prosecution and defendant in 2022.

Instead, it appears the probation officer unilaterally recommended the upper term of four years without consideration of the plea agreement for the midterm of three years.

Defendant is not seeking a sentence outside the terms of the plea agreement but seeking to enforce the plea agreement. When a guilty 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.

Therefore, we direct modification of the abstract of judgment to reflect the sentence agreed to by the parties and approved by the trial court in 2022—that defendant should be sentenced to the midterm of three years.

Authority:

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