For the equinophiles who claim there’s no such thing as two mini horses.
Nearly 100 down, no one knows how many to go. (I say “nearly” a hundred, because I did not post a summary for a few cases that I had initially numbered, primarily because I goofed in assigning a number to something unqualified for inclusion.) I’m now fully retired from CCAP, and I’d think I’d have more time to learn the few or many tricks I need to make this website more functional. But somehow I don’t feel like I have any more time than I had before I retired. Carving out the time seems a bit like bailing out the Merced River at the base of Vernal Falls. Something else immediately fills the spot vacated by the bucket of water.
So I’m still looking into how to add a meaningful search engine. I could break down and pay someone either to do it for me or to teach me. (You know the saying: “Teach a person to fish and that family will eat for the day; teach the person HOW to fish and suddenly the person will expand, engage in hostile takeovers of the entire regional fishery business, undersell competitors to drive them out of business, and then sell barely palatable osteichthyes at ridiculously high prices because it’s the only provider of fish and fish byproducts within hundreds of leagues.”)
But it’s a little like do-it-myself plumbing. I look at the problem for a few hours, then try to puzzle out a solution. What parts will I need, do I have the tools, do I know what I’m doing? Then I give it the old college try. Then I call a plumber.
For now, I’m going to ponder the website problem some more, figure that there is undoubtedly information online that would walk me through the exact steps, give it shot (probably only to learn that no, MY version of whatever is not quite the same as the version in the instructions, which makes all the difference in the world), and eventually come up with a solution (which may involve spending a little moolah for help from someone who actually does know what to do).
Along the way, though, I also recognized that I should probably reduce the number of cases per post. Depending on what I am able to do for a search feature. If a search for a term simply takes one to the post containing that term, one would have to do a long reading of the page to find the relevant case. (Using the web browser’s “find on page” feature would be useful, I suppose.) If I continue to try to put a single day’s relevant cases into one post, it quickly becomes a tome.
On the day I’m drafting this post, for example, I have downloaded 14 opinions that granted some form of relief to a defendant. If you’re reading a post of 14 cases on your smartphone while driving and suddenly slam on your brakes because you see a gendarme eyeing your miscreancy, you’ll likely lose your place on the page and have to scroll several times to get to where you left off. Can’t have that, now, can we?
So I’m considering breaking a post up into groups of no more than five or so cases per post. Or maybe just four. I have to give it more thought.
On the other hand, if the search feature takes the person right to the word in the article, voila! (I do not plan to install any search products–apparently called plug-ins or widgets–that also capture personal information from the user, so I may be stuck with something less glamorous than someone has already invented that does everything.)
Enough newsreel. Let’s look at coming attractions and then run the movie.
Summary of Summaries
We see again that abstracts of judgment and minutes must actually reflect the judgment.
There’s a pretty elaborate discussion on how to abide by PC 1385 when considering whether to lower a sentence.
What happens when a judge forgets to dismiss a count in keeping with the plea agreement?
What is the procedure when PC 654 (barring multiple punishment for a single act that can be and has been charged in different ways) applies?
The Movie
Case: 000101
The abstract of judgment must be modified to reflect the court’s oral pronouncement of judgment. The abstract of judgment as it relates to the sentence should be corrected to reflect that counts 2 and 4 were stayed.
Holding: When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties. [See] People v. Jones (2012) 54 Cal.4th 1, 89.
Case: 000102
In 2022, defendant was resentenced under Penal Code section 1172.75 and the trial court struck seven years from his determinate term. Defendant appeals, contending the trial court abused its discretion under section 1385 when declining to further reduce defendant’s sentence because the court found he currently posed a danger to public safety. We agree and accordingly vacate defendant’s sentence and remand for a full resentencing.
First Holding: Section 1385, subdivision (c)(1) states, in relevant part, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so.” Section 1385, subdivision (c)(2) provides: “In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. [See] PC 1385.
Second Holding: We review the trial court’s decision not to strike an enhancement under section 1385 for an abuse of discretion. An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it. [See] People v. Mendoza (2023) 88 Cal.App.5th 287, 298; In re White (2020) 9 Cal.5th 455, 470; People v. Gonzalez (2024) 103 Cal.App.5th 215.
Third Holding: The trial court abused its discretion because the plain words of section 1385 do not support the trial court’s singular focus on whether the defendant currently poses a danger and instead focuses on the danger associated with the dismissal of an enhancement. [See] People v. Williams (2018) 19 Cal.App.5th 1057; People v. Gonzalez (2024) 103 Cal.App.5th 215, 228-229.
Fourth Holding: Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward-looking inquiry. When determining whether resentencing poses an unreasonable risk of danger, the trial court must look to when a defendant would be released if the petition is granted and the defendant is resentenced. A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70s. [See] People v. Williams (2018) 19 Cal.App.5th 1057, 1063.
Case: 000103
Our independent review of the record discloses that the trial court inadvertently failed to dismiss one of the charged counts after accepting the defendant’s no contest plea to the remaining counts. We shall modify the judgment to reflect dismissal of that count.
First Holding: Because the court may not proceed as to the plea other than as specified in the approved plea, the court’s silence at the sentencing hearing regarding dismissal of a count was not an exercise of judicial discretion but rather a clerical error in the record of judgment. [See] PC 1192.5; In re Candelario (1970) 3 Cal.3d 702, 705; People v. Panizzon (1996) 13 Cal.4th 68, 80 [parties must abide by the terms of the plea agreement, including the dismissal of other counts].
Second Holding: The record of the oral pronouncement of the court controls over the clerk’s minute order, which may not modify the judgment it purports to digest. [See] People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185.
Case: 000104
We conclude the concurrent sentences on two counts constitute multiple punishment proscribed by section 654. Accordingly, we modify the judgment to stay the sentence on the second of those two counts.
First Holding: 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct. [See] PC 654; People v. Harrison (1989) 48 Cal.3d 321, 335.
Second Holding: 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 an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. [See] People v. Hester (2000) 22 Cal.4th 290, 295.
Third Holding: The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here. [See] People v. Jones (2012) 54 Cal.4th 350, 353.
Fourth Holding: An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed. An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances. [See] PC 1260; People v. Alford (2010) 180 Cal.App.4th 1463, 1473.
Case: 000105
The trial court should have stayed the sentence imposed on either of two counts, each of which was based on the same assault and committed with the same intent and objective.
First Holding: Penal Code section 654 prohibits punishment under more than one provision for any act or omission that is punishable in different ways by different provisions of law. This section applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one [See] People v. Corpening (2016) 2 Cal.5th 307, 309; People v. Perez (1979) 23 Cal.3d 545, 551.
Second Holding: Whether a defendant possessed a single intent and objective is a factual question subject to substantial evidence review on appeal. However, where the facts are undisputed, whether Penal Code section 654 precludes multiple punishment is a legal question, subject to de novo review. [See] People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5; People v. Moseley (2008) 164 Cal.App.4th 1598, 1603; People v. Goode (2015) 243 Cal.App.4th 484, 493; People v. Pitts (1990) 223 Cal.App.3d 1547, 1552, 1560 [multiple punishment precluded where mayhem and assault convictions were based on a course of conduct in which the defendant threw the victim down, punched her, took a box cutter that she tried to use to defend herself, and used the weapon to slash the victim].
Third Holding: A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [See] People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.