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Abstracts and Minutes, Sentencing, Standard of review

Case 000812

Posted on by Gary McCurdy

Error and/or relief

Intro The defendant pled guilty to felon in possession of a firearm, and unlawfully carrying a firearm with intent to commit a felony. The trial court sentenced defendant to two years state prison on each count, with the terms to be run concurrently. The sentence violates Penal Code section 654, as both counts arise from the same act of possessing and carrying a firearm. On resentencing, the abstract of judgment needs to be corrected to reflect the actual oral pronouncement of judgment.
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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.

Authority:

PEN 654

Second Holding:

Both Count 1 and Count 2 are premised on the same act by defendant of owning, possessing, and carrying a firearm on or about [the date in question] and a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357

Third Holding:

Where, as here, the facts are undisputed, we review de novo the application of section 654 as a question of law.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 312

Fourth Holding:

The record is inadequate for us to determine which sentence the trial court would have stayed if it considered section 654, making section 1260 relief inappropriate. We will remand to the trial court so that it may exercise its discretion to determine which sentence to stay.

Authority:

PEN 1260

People v. Braxton (2004) 34 Cal.4th 798, 818–819 [A limited remand is appropriate under section 1260 for the exercise of any discretion that is vested by law in the trial court]

Fifth Holding:

Section 1260 provides in relevant part that the appellate court may reverse, affirm, or modify a judgment or order appealed from and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order. Although section 1260 provides this court with the broad ability to modify judgments or proceedings, we exercise this power sparingly for the trial court’s articulated discretion is, generally speaking, controlling.

Authority:

People v. Humphrey (1997) 58 Cal.App.4th 809, 813

Sixth Holding:

Where the reviewing court finds an error in the exercise of sentencing discretion, the ordinary remedy is to reverse and remand to the trial court for resentencing, during which the trial court will have a new opportunity to exercise its discretion. The law respects the substantial discretion vested in the trial court to determine the appropriate sentence in light of the facts and circumstances of the individual case. Modification of the judgment instead of remand for resentencing matters would be appropriate when a trial court’s intention is clear.

Authority:

People v. Dain (2025) 18 Cal.5th 246, 261

People v. Mendoza (2016) 5 Cal.App.5th 535, 539

Seventh Holding:

Although the previous version of section 654 provided that an act or omission shall be punished under the longest potential term of imprisonment, effective January 1, 2022, section 654 was revised to provide the trial court with discretion to impose and execute the sentence of either term. Thus, where section 654 applies, “after determining which sentence to execute, courts must impose a sentence on the other count to which Penal Code section 654 applies and then stay execution of that sentence.

[Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, restoring to the court the discretion to choose on which count punishment should be imposed and executed.]

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379-380

Eighth Holding:

In this instance, the record does not present any indication as to which sentence the trial court would have stayed if it had considered the effect of section 654. It is true, as the People note, that the [date of original sentence], minute order states “Principal Count Deemed to be Count 01.” The [date probation was revoked and sentence was executed] minute order states the same, as does the abstract of judgment. The reporter’s transcript, however, contains no record of such a designation of a principal count by the trial court. Where a conflict exists between the court’s oral pronouncement and the minute order or abstract of judgment, the oral pronouncement controls. Following resentencing, the abstract of judgment must be corrected to reflect the actual oral judgment.

Authority:

People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000811

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to order a stay-away order upon sentencing the defendant. Otherwise, we affirm the court’s sentencing choices.

First Holding:

Under section 136.2, when the court has a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur, the court is authorized to issue a restraining order. Orders made under section 136.2 are operative only during the pendency of criminal proceedings and as prejudgment orders. The only purpose of a section 136.2 protective order is to protect victims and witnesses in connection with the criminal proceeding in which the restraining order is issued in order to allow participation without fear of reprisal.

Authority:

PEN 136.2

People v. Scott (2012) 203 Cal.App.4th 1303, 1324–1325

People v. Ponce (2009) 173 Cal.App.4th 378, 383, 384 [Where the Legislature authorizes a specific variety of available procedures, the courts should use them and should normally refrain from exercising their inherent powers to invent alternatives.]

Second Holding:

We also observe that courts must, at the time of sentencing for certain crimes, consider issuing a protective order prohibiting a defendant from contacting a victim. None of these other statutes are applicable in this matter. The order issued against the defendant therefore transcended the authorization of section 136.2 and must be vacated.

Authority:

PEN 136.2(i)(1)

PEN 273.5

PEN 646.9(k)

People v. Stone (2004) 123 Cal.App.4th 153, 160
We review the trial court’s sentencing decisions for an abuse of discretion. Under this standard of review, the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

Authority:
People v. Sandoval (2007) 41 Cal.4th 825, 847

Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712

Third Holding:

To prove an abuse of discretion, the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 377 [a sentencing court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it]

Fourth Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant generally falls under one of the categories enumerated in the subdivision. Rather, the statute is clear that childhood trauma (or one of the other two categories in subdivision (b)(6)) must be a contributing factor to the offense in order to qualify for a presumption of the low term in sentencing. On this record, we cannot say that the court failed to consider section 1170(b)(6), or that its decision to impose the middle term notwithstanding the provision was so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988, 991 [In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.]

People v. Hilburn (2023) 93 Cal.App.5th 189, 204, fn. 6

People v. Ramirez (2021) 10 Cal.5th 983 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

People v. Carmony (2004) 33 Cal.4th 367, 377

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

Elements of crime

Case 000808

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of assault with a semiautomatic firearm and shooting at an occupied motor vehicle. The conviction for assault with a firearm must be reversed because it is a lesser included offense of assault with a semiautomatic firearm. We reverse the conviction for assault with a firearm.

First Holding:

Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. A defendant cannot be convicted of both an offense and a lesser included offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.

Authority:

People v. Jennings (2010) 50 Cal.4th 616, 667–668

People v. Martinez (2012) 208 Cal.App.4th 197, 199

People v. Moran (1970) 1 Cal.3d 755, 763

Second Holding:

Here, the greater offense, assault with semiautomatic firearm (sec. 245(b))includes all the elements of the lesser offense, assault with a firearm (sec. 245(a)(2)). Therefore, we reverse the conviction on count 4 for assault with a firearm.

Authority:

People v. Martinez (2012) 208 Cal.App.4th 197, [A semiautomatic firearm assault cannot be committed without also committing a firearm assault.]