Category Archives: Sentencing

Duty of the court, Sentencing

Case 000696

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by refusing to recalculate the defendant’s credit for time served on resentencing, instead deferring to the Department of Corrections and Rehabilitation to make the calculation. The trial court was responsible for making this calculation.

First Holding:

Penal Code section 1237.1 requires that errors in the award of presentence custody credits be addressed to the sentencing court, even when the matter is pending on appeal. An erroneous credit calculation is an act in excess of the sentencing court’s jurisdiction and may be corrected by that court whenever brought to its attention.

Authority:

PEN 1237.1

People v. Wrice (1995) 38 Cal.App.4th 767, 770

People v. Jack (1989) 213 Cal.App.3d 913, 917

Second Holding:

The sentencing court must grant a defendant actual time credits both for the day of arrest and the day of sentencing. The defendant was originally sentenced on in 2022 and was credited with 476 presentence custody credits. He was resentenced in 2025 with the same number of credits.

Where, as here, a prison term already in progress is modified, the resentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served. There are [nearly 900] days between and including the original sentencing date and the resentencing date. Therefore, the defendant is entitled to actual credits of [more than 1350] days. The trial court was responsible for making this calculation.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

People v. Salgado (2022) 82 Cal.App.5th 376, 381

Sentencing

Case 000694

Posted on by Gary McCurdy

Error and/or relief

Where the defendant was convicted of being a felon in possession of a firearm and felony possession of ammunition, the court should have stayed the sentence on one of the counts under section 654.

First Holding:

Section 654(a), provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. This section precludes multiple punishment for a single act or omission, or an indivisible course of conduct. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Deloza (1998) 18 Cal.4th 585, 591

Neal v. State (1960) 55 Cal.2d 11, 20, disapproved on another point in People v. Correa (2012) 54 Cal.4th 331, 334

Second Holding:

Where, as here, all of the ammunition is loaded into the firearm, an indivisible course of conduct is present and section 654 precludes multiple punishment.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

People v. Sok (2010) 181 Cal.App.4th 88, 100

Probation Parole PRCS, Sentencing

Case 000692

Posted on by Gary McCurdy

Error and/or relief

The condition of probation requiring the minor to “report to your probation officer as directed and follow his or her orders” is unconstitutionally vague and overbroad and must be modified.

First Holding:

We review constitutional challenges to probation conditions de novo.

Authority:

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Second Holding:

A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

Third Holding:

Courts may not delegate to probation officers the authority to set probation conditions. A probation officer has wide discretion to enforce court-ordered conditions and to give directives to a probationer, if those directives are reasonably related to previously imposed terms. The condition as drafted does not clearly demarcate the scope of the probation officer’s wide discretion to enforce the court’s conditions. To remove any ambiguity on this point, we will direct that the condition be modified to read “Report to [the probation officer] as directed and follow his/her orders related to the probation conditions imposed by the court.”

Authority:

In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373

People v. Smith (2022) 79 Cal.App.5th 897, 902 [While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.]

Fines and fees, Sentencing

Case 000690

Posted on by Gary McCurdy

Error and/or relief

The defendant cannot be convicted of both the robbery and the petty theft it resulted in, and the conviction and sentence for petty theft, along with associated fines and fees, must be reversed.

First Holding:

A defendant cannot be convicted of both robbery and petty theft based on the same conduct because theft is a lesser necessarily included offense of robbery.

Authority:

People v. Ortega (1998) 19 Cal.4th 686, 699

Second Holding:

While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct.

However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

Authority:

PEN 654

PEN 954

People v. Ortega (1998) 19 Cal.4th 686, 692

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. Sanders (2012) 55 Cal.4th 731, 736

Third Holding:

This is true even though the defendant first took items from the store and then took the same items from the loss prevention officer by force. The taking of the items from the loss prevention officer was the same as taking items from the store since the loss prevention officer was acting as an agent of the store.

Authority:

People v. Villa (2007) 157 Cal.App.4th 1429, 1434–1435

People v. Estes (1983) 147 Cal.App.3d 23, 29

Fourth Holding:

The People contend the defendant forfeited his right to raise this issue on appeal because he did not object to his separate convictions before the trial court. We consider the merits of the argument because a defendant may challenge an unauthorized sentence even if he or she failed to object below.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Fifth Holding:

Section 1465.8(a)(1) requires a court to impose a $40 court operations assessment for every conviction of a criminal offense. Similarly, Government Code section 70373(a)(1), requires a $30 conviction assessment for each misdemeanor or felony conviction. The court also imposed a fine of $41 under section 1202.5 along with a restitution fine of $600 and a $600 parole revocation restitution fine, which was suspended unless parole is revoked.

Because we reverse the conviction for petty theft, we remand the matter for the superior court to vacate any portion of the fines and fees imposed for petty theft.

Authority:

PEN 1202.5

PEN 1202.4

PEN 1465.8(a)(1)

GOV 70373

Sentencing

Case 000686

Posted on by Gary McCurdy

Error and/or relief

It was error to impose sentence on both the murder and the burglary. Because the court has discretion to choose which sentence to execute and which to stay, the matter is remanded.

First Holding:

Section 654 precludes multiple punishments for an indivisible course of conduct. For example, when a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes. A claim of error under section 654 is nonwaivable.

Authority:

PEN 654

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130

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

Second Holding:

Here, murder was the felony underlying the prosecution’s burglary theory, so the trial court erred by imposing consecutive sentences for both crimes. Because the trial court has discretion to decide which sentence should be stayed, remand is required.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 379