Tag Archives: Credit for time served

Amelioration, Duty of the court, Jury trial, Retroactivity, Sentencing, Sixth Amendment

Case 001151

Posted on by Gary McCurdy

Error and/or relief

The court made several sentencing errors. The strike based on a violation of section 186.22 requires examination whether the elements found true at the time of conviction meet the heightened requirements of the amendments under AB 333.

The court imposed the upper term on several counts despite there being no jury trial waiver nor stipulation by the defendant to the aggravating factors. Further, the court relied on factors in aggravation that were also the basis of enhancements, violating the prohibition against dual use.

The court erred in imposing two full terms consecutively for two counts, as consecutive determinate (subordinate) terms are limited to one-third the middle term.

The court miscalculated the credit for time served.

First Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of “benefit” to mean “to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a prior serious felony.

We remand to permit the prosecution the opportunity to establish that the prior conviction (from more than 15 years ago) constitutes a strike and a prior serious felony conviction under current law. conviction.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586–587

Second Holding:

Section 1170(b)(1) provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2). Under subdivision (b)(2), the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. A defendant is entitled to have a jury determine the facts justifying an upper term based on the “increasing seriousness” of a defendant’s prior convictions.

Authority:

PEN 1170(b)

Cal. Rules of Court, rule 4.421(b)(2)

People v. Wiley (2025) 17 Cal.5th 1069, 1078, 1085-1086 [increasing seriousness of a crime required a jury determination]

People v. Lynch (2024) 16 Cal.5th 730, 759–760

Third Holding:

The court erred in relying on two factors in aggravation that formed the basis of enhancements for which punishment was imposed. This was error because of the prohibition against the dual use of facts to impose an upper term sentence based on the facts of an enhancement.

Authority:

PEN 1170(b)(5)

People v. Scott (1994) 9 Cal.4th 331, 350

Fourth Holding:

The court imposed two consecutive 18-year terms for each of the attempted murder counts, which consisted of the upper term of nine years double for the prior strike. This was error. The trial court may the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court may impose only one-third of the middle term’for subordinate terms.

Authority:

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

Fifth Holding:

The court erred in its calculation of credit for time served, and on remand the court shall ensure that the abstract of judgment be amended to reflect the proper credits.

Authority:

PEN 2900.5

Abstracts and Minutes, Duty of the court, Fines and fees, Sentencing

Case 001148

Posted on by Gary McCurdy

Error and/or relief

The court improperly imposed a fine and penalty assessments of $3200 without specifying how that sum was reached. Remanded for the court to determine the fine under section 290.3. The court also failed to award sufficient credit for time served. And the court improperly issued a protective order pertaining to someone who was neither a victim of nor a witness to the crime.

First Holding:

The reporter’s transcript of the sentencing hearing shows that the trial court imposed a restitution fine of $1,000 and the $3,200 penalty assessment. The court did not explain how this penalty assessment had been calculated. A restitution fine is not subject to penalty assessments.

The probation report recommended that, under section 290.3, the defendnat be ordered to pay a fine of $3,200 including penalty assessment. The probation report did not explain how the figure of $3,200 had been reached.

The court’s minutes show a restitution fine of $1,000 and a fine of $3,200 pursuant to Section 290.3. The abstract of judgment states that appellant shall pay a $3200 fine pursuant to PC 290.3.

Under section 290.3(a) the maximum fine was $300 because this was appellant’s first conviction of an offense specified in section 290(c).

Authority:

PEN 1202.4(e)

PEN 290.3(a)

PEN 290(c)

Second Holding:

On a $300 fine imposed under section 290.3, the maximum penalty assessments total $930. The penalty assessments are:

(1) a 100 percent state penalty assessment under 1464(a)(1) equal to $300;

(2) a 70 percent additional penalty under Government Code section 76000(a)(1)) equal to $210;

(3) a 20 percent state surcharge under section 1465.7) equal to $60;

(4) a 50 percent state court construction penalty under Government Code section 70372 equal to $150;

(5) a 20 percent additional penalty for emergency medical services under Government Code section 76000.5 equal to $60;

(6) a 10 percent additional DNA penalty under Government Code section 76104.6(a)(1)) equal to $30; and

(7) a 40 percent additional state-only DNA penalty under Government Code section 76104.7(a) equal to $120.

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1457-1458 [the penalty assessments on a $300 fine imposed pursuant to section 290.3(a) should have totaled $930]

People v. Hamed (2013) 221 Cal.App.4th 928 [though in Hamed, the GOV 76104.7(a) assessment was at 30 percent, before the section was amended to increase it to 40%]

Third Holding:

The abstract of judgment should detail the amounts of and statutory basis for the base fine and each of the penalty assessments imposed. Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. If the abstract does not specify the amount of each fine, the Department of Corrections and Rehabilitation cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.

Accordingly, the matter must be remanded to the trial court for recalculation of the section 290.3(a) fine and penalty assessments.

(Gary note: The court also concluded that the defendant was entitled to be present at the hearing on the recalculation, to allow the defendant to present a challenge on his ability to pay. The court did not cite any specific authority for that directive, but I’m guessing it probably had a case like People v. Kopp (2025) 19 Cal.5th 1 in mind.)

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1459

People v. High (2004) 119 Cal.App.4th 1192, 1200

Fourth Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. In addition to actual credit, which accumulates from time spent in custody, detainees in local institutions are usually able to earn credit against their eventual sentence for good behavior and work performed. The parties agree that the credits awarded by the court were short by 3 days. On remand, the court should recalculate the presentence custody credits.

Authority:

People v. Crenshaw (2025) 116 Cal.App.5th 1169, 1181

Fifth Holding:

At the time of sentencing, the trial court issued a protective order directing appellant to not contact Person A.

Section 136.2 covers protective orders. Section 136.2(i)(1) provides that, if a defendant has been convicted of [the court describes the crime committed here], the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. Person A was not a victim of the [specified crime].

Section 136.2(i)(2) authorizes the issuance of an order restraining the defendant from any contact with a percipient witness to the crime if it can be established by clear and convincing evidence that the witness has been harassed by the defendant. Person A was not a percipient witness to the crime.

Thus, we direct the trial court to strike the protective order as to Person A.

Authority:

PEN 136.2

Sixth Holding:

The defendant did not object to the no-contact order. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Abstracts and Minutes, Duty of the court, Eighth Amendment, Equal protection, Fines and fees, Gary Musings, Sentencing

Case 001128

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the credit for time served. Although the court acknowledged that section 654 applied, it erroneously imposed concurrent sentences rather than staying any. The minute order mentions only that the two counts were stayed, and does not reflect the order for concurrent sentences. The abstract of judgment indicates that the counts were both stayed and to be served concurrently. Remanded for correction of these errors.

First Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

People v. Mullins (2018) 19 Cal.App.5th 594, 612

Second Holding:

Sentences must be stayed to the extent that section 654 prohibits multiple punishment.

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. Section 654 bars multiple punishment for offenses arising out of a single occurrence where all the offenses were incident to one objective.

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.

In such circumstances, the court must impose but stay execution of sentence on all of the convictions arising out of the course of conduct except for one. It has long been established that the imposition of concurrent sentences is precluded by section 654 because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

(Gary Musing, 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, returning to the court the discretion to choose on which count punishment should be imposed and executed.

(There is likely language in one or more of the cases cited below that were decided during the time frame requiring imposition of sentence on the count carrying the longest term. Don’t be misled by that, as the law has changed, restoring the court’s discretion to choose among the counts.)

Authority:

PEN 654

People v. Jones (2012) 54 Cal.4th 350, 353

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

People v. Latimer (1993) 5 Cal.4th 1203, 1208

People v. McCoy (2012) 208 Cal.App.4th 1333, 1338

People v. Miller (1977) 18 Cal.3d 873, 887, abrogated on other grounds as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8;

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413

Third Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. This includes partial days. Because an abstract of judgment represents the process and authority for carrying the judgment and sentence into effect, it is paramount that the abstract reflects the appropriate sentence and credits.

Authority:

PEN 2900.5

People v. Bravo (1990) 219 Cal.App.3d 729, 735

People v. King (1992) 3 Cal.App.4th 882, 886

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

Fourth Holding:

At sentencing, the court imposed a $300 restitution fine, pursuant to section 1202.4(b), which it stayed. It also imposed and suspended a parole revocation restitution fine under section 1202.45. The abstract of judgment, however, erroneously lists the fines as $900. It also fails to state the restitution fine is stayed. We therefore order the errors in the amount of the restitution fines be corrected.

Authority:

People v. Lipscomb (2022) 87 Cal.App.5th 9, 22 [a court may only impose one restitution fine per case, so it is error to impose a restitution fine as to each count]

Fifth Holding:

The court also imposed ancillary assessments. We remand to give the defendant an opportunity to demonstrate whether he has the ability to pay, under equal protection principles, inasmuch as the court has the authority to waive such fees entirely in civil matters.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 9, 30

Sixth Holding:

Due process does not require an ability to pay hearing before imposing every punitive fine. Instead, the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines. Four factors are relevant to determining whether a fine is unconstitutionally excessive: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay.

Authority:

U.S. Const., Eighth Amendment

Cal. Const., art. I, sec. 17

People v. Kopp (2025) 19 Cal.5th 1, 11 & fn. 6, 23

United States v. Bajakajian (1998) 524 U.S. 321, 327–328

People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728

Sentencing

Case 001119

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one more day of credit for time served.

Holding:

A defendant convicted of a felony or misdemeanor shall be credited for all days in custody. Days in custody include the day of arrest through and including the day of sentencing.

(Gary note: I suspect that this error crops up when the person calculating the days in custody simply subtracts the date of arrest from the date of sentencing. For example, supposed a defendant is arrested on January 1 and is sentenced on January 30. Subtracting the date of arrest from the sentencing date yields 30 days (31-1=30).

(But days in custody are to be calculated on a counting basis, not on a “find the difference between two dates” subtraction basis. Since the credit for time served includes the date of arrest and the date of sentencing, counting Jan 1 through Jan 31 yields 31 days credit for actual days in custody.)

Authority:

PEN 2900.5(a)

People v. Buckhalter (2001) 26 Cal.4th 20, 30

People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48

Duty of the court, Sentencing

Case 001114

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court failed to recalculate the defendant’s credit for time served. The matter is remanded for that purpose.

Holding:

The trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37

People v. Rojas (2023) 95 Cal.App.5th 48, 55 [We accordingly remand so the trial court may calculate the correct credits and prepare a new abstract of judgment]