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Case Summaries

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Jury trial

Case 000697

Posted on by Gary McCurdy

Error and/or relief

The defendant was not advised of her right to a jury trial on the prosecution’s petition for extension of her commitment under a finding of not guilty by reason of insanity, and she did not personally waive that right. Therefore, her commitment must be reversed.

First Holding:

A defendant who is found not guilty by reason of insanity may be committed to a state hospital for a term equal to the maximum sentence the court could have imposed for the underlying offense. A person’s commitment may be extended beyond the maximum sentence, however, if certain procedures are followed.

When the petition to extend the commitment is filed, the court shall advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial. The court shall conduct a hearing on the petition for extended commitment. The trial shall be by jury unless waived by both the person and the prosecuting attorney.

Authority:

PEN 1026.5

Second Holding:

The statutory language is unambiguous–the person named in the petition has the right to a jury trial, and the trial shall be by jury unless the person named in the petition waives said right.

Authority:

People v. Tran (2015) 61 Cal.4th 1160, 1166

Third Holding:

In the present case, there is nothing in the record showing the trial court advised appellant of her right to a jury trial, obtained a personal waiver from her, or made an explicit finding of substantial evidence that she lacked the capacity to make a knowing and voluntary waiver. Instead, the court accepted defense counsel’s waiver of a jury trial without any advisements or personal waivers or findings. The record offers no explanation. Under these circumstances, there is no basis to infer appellant personally waived her right to a jury trial from the silent record. Therefore, the jury trial waiver is invalid.

Authority:

People v. Tran (2015) 61 Cal.4th 1160, 1168-1169

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

Abstracts and Minutes

Case 000695

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected in two respects: First, the abstract of judgment states the trial court imposed a five-year sentence for the section 12022(a)(1) firearm enhancement. But the jury was not asked to, and did not, find that the defendant was armed with a firearm in the commission of the robbery. Second, the abstract of judgment states the trial court imposed a five-year sentence for the count 2 robbery conviction. But at the oral pronouncement of sentence, the court doubled that term to 10 years because of the prior strike.

First Holding:

An appellate court has inherent power to correct clerical errors in its records to reflect the true facts, including the oral judgments of judicial officers. We agree such correction of the record is appropriate. The abstract of judgment must be amended to reflect a firearm enhancement was never imposed on the count 2 robbery and the sentence on that count is 10 years.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 186–187

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

Abstracts and Minutes

Case 000693

Posted on by Gary McCurdy

Error and/or relief

The sentencing minutes must be corrected to reflect the orally pronounced sentence.

First Holding:

The court imposed the middle term, to be served in the local jail. The trial court did not orally pronounce any restrictions on the defendant’s custodial sentence. On the trial court’s sentencing minutes, a box is checked next to the phrase “no early release of any type authorized,” and there are handwritten notations stating, “NO CPAC/NO WORK FURLOUGH.” [CPAC refers to the “County Parole and Alternative Custody Unit.”] The abstract of judgment does not reflect these restrictions.

In a criminal case, it is the oral pronouncement of sentence that constitutes the judgment. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. In the event of a discrepancy between the oral pronouncement of judgment and a minute order or an abstract of judgment, the oral pronouncement controls.

Authority:

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

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [The record of the oral pronouncement of the court controls over the clerk’s minute order]

Second Holding:

The reporter’s transcript of the sentencing hearing includes no explicit indication that the trial court was foreclosing the possibility of custody-alternative programs or early release. The clerk’s sentencing minutes imposing such restrictions therefore conflict with the trial court’s oral pronouncement of sentence. It follows that we must correct the discrepancy by ordering the trial court to modify the minute order.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 388 [striking sentencing conditions included in the clerk’s minutes that were not orally pronounced]

People v. Gobert (2023) 89 Cal.App.5th 676, 689