Category Archives: Sentencing

Fines and fees, Sentencing

Case 000675

Posted on by Gary McCurdy

Error and/or relief

When resentencing defendant, the court reimposed the $400 restitution fine and a $400 suspended parole revocation fine originally imposed in 1999. The restitution fine must be vacated.

Holding:

Restitution fines more than 10 years old are not collectible and must be vacated. Resentencing does not restart the clock.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart 10-year clock], review granted Mar. 11, 2026, S295038 on a different issue

Appellate Principles, Sentencing

Case 000674

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on count 3 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. The statute is intended to ensure that the defendant is punished commensurate with his culpability. It expressly prohibits separate punishment for two crimes based on the same act, but has been interpreted to also preclude multiple punishment for two or more crimes occurring within the same course of conduct pursuant to a single intent.

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.

However, the temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. If the defendant entertained multiple criminal objectives which 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. Furthermore, multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.

Authority:

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

People v. Vargas (2014) 59 Cal.4th 635, 642

People v. Capistrano (2014) 59 Cal.4th 830, 885

People v. Rodriguez (2009) 47 Cal.4th 501, 507, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56 at pp. 103–104
People v. Jackson (2016) 1 Cal.5th 269, 354

People v. Porter (1987) 194 Cal.App.3d 34, 38

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

People v. Tom (2018) 22 Cal.App.5th 250, 260

People v. Lopez (2011) 198 Cal.App.4th 698, 717

People v. Felix (2001) 92 Cal.App.4th 905, 915

Second Holding:

Under the facts of this case, the court should have stayed the sentence on count 3. We may modify the judgment on review to reflect the sentence is stayed. In the absence of any other errors requiring remand, we exercise our discretion to do so.

Authority:

PEN 1260

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

People v. Flores (2022) 77 Cal.App.5th 420, 453 [we need not remand a matter when it would be an idle act wasteful of judicial resources]

Abstracts and Minutes, Sentencing

Case 000670

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of one count of felony vandalism and one count of misdemeanor vandalism. The court purported to sentence the defendant to a total of three years, with appellant ordered to serve 270 days in county jail and the balance of the three years time on mandatory supervision (a “split sentence”). This was error, because the concept of split sentence applies to felonies only, and the misdemeanor was not subject to mandatory supervision.

First Holding:

Under the Realignment Act, qualifying low-level felony offenders no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer. Pursuant to section 1170(h)(5)(B), the court has discretion to impose a hybrid sentence consisting of county jail followed by a period of mandatory supervision. This option is only available for felony convictions.

Authority:

PEN 1170(h)

People v. Scott (2014) 58 Cal.4th 1415, 1418-1419

People v. Catalan (2014) 228 Cal.App.4th 173, 178

Second Holding:

As reflected in the court’s oral pronouncement and the corresponding minute order, the court “split” the total three-year sentence for both counts, imposing 270 days of jail time and the balance as mandatory supervision.

While respondent points to the subsequent nunc pro tunc order purporting to place appellant on two years of formal probation, a nunc pro tunc order is generally limited to correcting clerical errors and cannot declare that something was done that was not done.

The record indicates that at least some portion of the court’s order imposing mandatory supervision applied to the misdemeanor conviction. As mandatory supervision under section 1170(h)(5)(B) is only applicable to felony convictions, we must remand for resentencing.

Authority:

PEN 1170(h)

People v. Borja (2002) 95 Cal.App.4th 481, 485

Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256

Appellate Principles, Sentencing, Sixth Amendment

Case 000669

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously stated that all of the aggravating factors had been found true by the jury. The only aggravating factor alleged, and found true by the jury was that the victims were particularly vulnerable. The sentence is reversed and the court is directed to consider the sentence in light of the only aggravating factor found true by the jury. Further, the court must consider the defendant’s ability to pay the restitution fines and ancillary fees.

First Holding:

In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.

Authority:

In re Reno (2012) 55 Cal.4th 428, 483

Second Holding:

Section 1170(b)(2) states that when imposing a sentence under a statute that allows for a low, middle, and high term, the court shall impose the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

The violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

People v. Lynch (2024)16 Cal.5th 730, 768

Chapman v. California (1967) 386 U.S. 18

Third Holding:

To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

The determination of whether the crime involved sophistication and planning rests on a vague and subjective standard. Accordingly, we cannot conclude beyond a reasonable doubt that the jury would have found true the two remaining aggravating factors upon which the court relied to conclude the upper term was justified.

We therefore reverse the sentence and remand for the trial court to hold a new sentencing hearing during which it shall only consider aggravating factors that were found true by the jury as part of its analysis of whether to impose an upper term sentence.

Authority:

People v. Lynch (2024)16 Cal.5th 730, 775

Fourth Holding:

Where a trial court imposes fines exceeding the statutory minimum of $300 under section 1202.4(b), and section 1202.45, it must consider the defendant’s ability to pay. Before imposing ancillary costs pursuant to section 1465.8(a)(1) and Government Code section 70373, equal protection principles require the trial court to, on defendant’s request, consider a defendant’s inability to pay such costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 30

Abstracts and Minutes, Appellate Principles, Discretion, Sentencing

Case 000668

Posted on by Gary McCurdy

Error and/or relief

It is unclear whether the court intended to impose as the base term the low term of 16 months or the middle term of two years, we remand for the court to clarify its intended sentence, as well as to correct a clerical error in the abstract of judgment.

First Holding:

At the sentencing hearing, the court stated it was imposing the low term, two years in prison. It doubled that term as it was a two-strikes sentence, and added three years for an injury enhancement, and stated the total sentence was seven years. The low term for the crime, however, carries a triad of 16 months, 2 years, or 3 years. Thus, the low term is 16 months, and two years is the middle term.

The matter must be remanded for the court to clarify whether it intended to impose the low term (in which case the sentence must be recalculated) or the middle term (in which case the sentence will remain the same as orally pronounced as two years doubled plus three years for the enhancement for a total of seven years).

We stress that, if the court indeed intended to impose the seven-year total sentence based on the middle term of two years, doing so was not an abuse of the court’s discretion considering the relevant sentencing factors considered by the court on the record. A sentence based on the low term of 16 months would also not be an abuse of the court’s sentencing discretion.

Authority:

People v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1226 [trial court does not abuse its discretion by imposing the presumptive middle term rather than the low term where the court sets forth on the record the facts and reasons for choosing the sentence imposed at time of sentencing, and that decision does not fall outside the bounds of reason under applicable law and relevant facts]

Second Holding:

Though the conviction was by plea, no certificate of cause is required for the defendant to raise his challenges to the sentence in this case. Section 1237.5 provides a defendant may not appeal from a guilty or no contest plea without a certificate of probable cause for an appeal based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. Even without a certificate of probable cause, a defendant may nonetheless appeal issues related to post-plea matters, such as the sentence, that do not challenge the plea’s validity.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 694

Third Holding:

However, even when a defendant purports to challenge only the sentence imposed, a certificate is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement, as such a claim is, in substance, a challenge to the validity of the plea. Thus, where a defendant enters a negotiated plea in which the parties agree the court will impose a specific, agreed-upon sentence, any challenge to that sentence is a challenge to the validity of the plea and requires a certificate of probable cause.

(Gary note: This is a direct appeal from the original sentencing. It should not be confused with an appeal from a resentencing under one of the recent ameliorative provisions, such as 1172.75. Where it is an appeal from such a resentencing, it is important to review section 1171, effective 1/1/2025, which states in subdivision (c)(3) that “Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.” I have not seen any instances in which there was discussion of the need for a certificate of probable cause in appeals from decisions in the ameliorative provisions context, but section 1171(c)(3) seems to me to specifically address (and countermand) those aspects of the Stamps decision regarding setting aside the plea.

(I would argue that Stamps also would not be authority to require a certificate of probable cause to appeal a ruling on the application of ameliorative provisions where there was a stipulated sentence, given the legislation that, in essence, not only doesn’t challenge the plea agreement, it specifically states that application of the ameliorative provisions will not result in the setting aside of the plea itself. As I said, I have not noticed the question of certificates of probable cause in appeals from hearings involving ameliorative sections such as–but not limited to–1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. See my comment in case 000532 for a more extensive discussion on section 1171, including the observation that the Supreme Court transferred a case with a Stamps issue back to the Court of Appeal with instructions to consider the impact of the then-recently added section 1171.)

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 694

People v. Hurlic (2018) 25 Cal.App.5th 50, 55

People v. Panizzon (1996) 13 Cal.4th 68, 79

Fourth Holding:

By contrast, a certificate of probable cause is not required to challenge the exercise of individualized sentencing discretion within an agreed maximum sentence, absent contrary provisions in the plea agreement, as long as the defendant is not challenging the trial court’s authority to impose a sentence within a negotiated lid or maximum.

Authority:

People v. Buttram (2003) 30 Cal.4th 773, 790

People v. Shelton (2006) 37 Cal.4th 759, 763

Fifth Holding:

No certificate of probable cause is needed to challenge a court’s failure to strike a prior strike where striking a strike would still result in a sentence that falls within the range contemplated by the plea.

Authority:

People v. Cole (2001) 88 Cal.App.4th 850, 872

People v. Buttram (2003) 30 Cal.4th 773, 790-791, 777, 786-787

Sixth Holding:

The abstract must also be corrected to remove the notation “YTL” (for “years to life”), as no indeterminate life term was imposed in this case.

(Gary note: The court listed no authority for that correction, but there is plenty it could have relied on, some of which I list below.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

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

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2