At the conclusion of the hearing under section 1172.75, the trial court miscalculated the credit for time served, and the abstract of judgment must be amended to reflect the correct credits.
The trial court is directed to amend the abstract of judgment to reflect the correct days of custody credit.
People v. Taylor (2004) 119 Cal.App.4th 628
People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8
The trial court should have stayed the sentence on one of the defendant’s convictions under section 654. Therefore, we modify his sentence to stay the sentence on that count. We also order the trial court to correct errors in the defendant’s abstract of judgment.
Section 654 provides that a defendant may be punished only once for an act or omission that is punishable in different ways by different provisions of law. The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission. However, because the statute is intended to ensure that a defendant is punished commensurate with his culpability, its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. Where the defendant committed more than one offense during a course of conduct deemed to be indivisible in time, the court looks to the defendant’s intent and objective to determine whether any of the offenses are subject to section 654. Whether section 654 applies to a given case is a question of fact for the trial court. In this case, based on statements made by the court on more than one occasion, the only reasonable conclusion is that the court determined the assault with a semiautomatic firearm in count 12 involved the same act or criminal objective as the robbery against the same victim in count 10.
PEN 654
People v. Mesa (2012) 54 Cal.4th 191, 193
People v. Harrison (1989) 48 Cal.3d 321, 335
People v. Jackson (2016) 1 Cal.5th 269, 354
The abstract contains several errors. It stated that the court imposed, but stayed under section 654, several firearm and bodily injury enhancements on nine of the counts. In fact, however, the court dismissed those enhancements under section 1385. The abstract states that the sentences on three of the counts were full consecutive terms. In fact, the court imposed a consecutive term of one-third the midterm on each, as required under section 1170.1(a). And the abstract states that the total time on attached pages was four years and four months, whereas the actual total on the attached pages is fourteen years. On remand, the trial court shall ensure the amended abstract of judgment does not contain these errors.
[Gary note: The court did not cite authority for correction of the abstract of judgment, likely because it recognized there will be a new abstract of judgment issued to reflect the effect of section 654 on one of two counts. Had the Court of Appeal chosen to specifically order correction of the existing abstract, it would have found authority under one or more of the cases I have set forth below.]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
The trial court erred by imposing sentence on the robberies which served as the predicate offenses for his murder conviction under the felony murder theory. We remand for full resentencing so the trial court may determine whether section 654 applies to all of the underlying robberies or to only one, and to correct other errors (if any) that the parties asserted in this appeal.
Section 654 provides that the same act or omission shall not be punished under more than one provision of law. Thus, where felony murder is the sole theory of murder under which the case was prosecuted, section 654 precludes imposition of separate terms for the predicate felonies for the theory of felony murder, for which defendant received his first degree murder sentence.
PEN 654
People v. Montes (2014) 58 Cal.4th 809, 898
An appellate court normally reviews the trial court’s factual determinations in applying section 654 for substantial evidence.
People v. Brents (2012) 53 Cal.4th 599, 618
People v. Jacobo (2019) 37 Cal.App.5th 32, 53-54
This is not exactly a win for the defendant, but it reinforces the proper application of section 654. In this instance, the trial court simply did not impose any sentence on a count that the court determined section 654 applied to. It resulted in reversal of the sentence, with a direction that the court impose a sentence on all counts, including the one to which section 654 applied, and stay execution as to that count. Interestingly, the abstract of judgment actually reflected that the court had imposed and stayed sentence under section 654. Reaffirming my supplication that we should always examine abstracts of judgment, as it truly is not uncommon for them to contain errors.
The abstract of judgment incorrectly states that the trial court imposed the upper term for count 2 and stayed the sentence under section 654. However, the court did not impose sentence for count 2 during the sentencing hearing. 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.
People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893
People v. El (2021) 65 Cal.App.5th 963, 967
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. Stated differently, section 654 prohibits multiple punishment for the same act or omission. When section 654 is applicable, the accepted procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.
PEN 654
People v. Correa (2012) 54 Cal.4th 331, 337
People v. Jones (2012) 54 Cal.4th 350, 353
People v. Duff (2010) 50 Cal.4th 787, 796 [when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence]
People v. Mani (2022) 74 Cal.App.5th 343, 380 [when section 654 applies, it is improper to impose no sentence or to stay imposition of the sentence]
People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [when section 654 applies, the trial court imposes an unauthorized sentence by failing to sentence defendant on all counts]
Because the sentence is unlawful, we remand the matter to the trial court for resentencing purposes. On remand a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.
People v. Mani (2022) 74 Cal.App.5th 343, 381
In re Mattison (2025) 115 Cal.App.5th 1062, 1067
We affirm the order denying resentencing under section 1172.6, but direct the trial court to prepare a corrected abstract of judgment, because the credit for time served was miscalculated.
Both the date of arrest and the sentencing should be included in credit calculations
People v. Bravo (1990) 219 Cal.App.3d 729, 735
The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.
People v. Chilleli (2014) 225 Cal.App.4th 581, 591
The defendant is entitled to a full resentencing because Penal Code section 1172.75 applies to enhancements imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. We reverse and remand for the trial court to conduct a full resentencing. the trial court erred when it failed to recalculate his presentence custody credit
Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses. Two years later, the Legislature made the change retroactive. In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to Penal Code section 667.5(b) is legally invalid. In the same provision, the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes’ such an enhancement.
PEN 1172.75
PEN 667.5
Penal Code section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.
People v. Rhodius (2025) 17 Cal.5th 1050
Defendant’s actual presentence custody credits must be recalculated at this resentencing.
People v. Sek (2022) 74 Cal.App.5th 657, 673
People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37
This was a People’s appeal from the trial court’s grant of a motion under section 995 to set aside counts and enhancements in the information that the magistrate found insufficient evidence to support at the preliminary hearing. Grant of section 995 motion affirmed.
[GARY NOTE: This opinion went into depth analyzing the sufficiency of evidence on the question of gang common benefit and whether the members collectively engaged in the pattern of criminal gang activity that the statute requires. It discussed several published cases as example that guided its decision. I have not included the discussion or the cases cited, as that depth is beyond the scope of this blog. I’m happy to provide the full opinion to any attorney who asks me for it.]Under section 995, an information will be set aside if the defendant was committed without reasonable or probable cause. To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. Reasonable or probable cause’ means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. Probable cause signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. The showing required at this stage is exceedingly low, and an information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged.
Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271 [a defendant may utilize section 995 to strike invalid enhancement allegations]
People v. Chapple (2006) 138 Cal.App.4th 540, 545
People v. Mower (2002) 28 Cal.4th 457, 473
People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 276
People v. Garcia (2018) 29 Cal.App.5th 864, 870–871
When we review a section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate. We must draw all reasonable inferences in favor of the information and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that a reasonable person could harbor a strong suspicion of the defendant’s guilt.
People v. San Nicolas (2004) 34 Cal.4th 614, 654 [reviewing denial of sec. 995 motion made after magistrate struck special circumstance allegation]
Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072
As here with respect to the gang evidence presented by the prosecution, where the facts are undisputed, the determination of probable cause constitutes a legal conclusion which is subject to independent review on appeal.
People v. Superior Court (Farley) (2024) 100 Cal.App.5th 315, 326
People v. Scully (2021) 11 Cal.5th 542, 582 [independent standard of review applies when magistrate determines that the People did not put forth sufficient evidence to support the charges]
Not every crime committed by gang members is related to a gang. Concerned with lax interpretations of the prior gang law that allowed for overly expansive application of gang enhancements, the Legislature amended section 186.22 effective January 1, 2022. The amendments to section 186.22 narrowed the definition of a criminal street gang and increased the prosecution’s burden of proof by altering the definition of a criminal street gang and instituting new requirements to prove that a criminal street gang engaged in a pattern of criminal gang activity.
People v. Albillar (2010) 51 Cal.4th 47, 60
People v. Cooper (2023) 14 Cal.5th 735, 744
People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6
For the reasons stated in this opinion, we conclude that there was insufficient evidence that a reasonable person could harbor a strong suspicion that gang’s predicate offenses were either committed for the gang’s common benefit or that the gang members collectively engaged in a pattern of criminal gang activity as defined under section 186.22. Finding insufficient evidence that the gang meets the definition of a criminal street gang under section 186.22, we discern no error in the trial court’s partial grant of the section 995 motion as to the gang enhancements and gang related firearm enhancements as to all defendants.
Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072
On resentencing following remand from the prior appeal, the court failed to recaculate the credit for time served.
When a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.
People v. Buckhalter (2001) 26 Cal.4th 20, 29
The trial court must calculate the credits. It is not the proper function of the Court of Appeal to engage in this business of correction of clerical errors in the computation of credits.
People v. Fares (1993) 16 Cal.App.4th 954, 959
The abstract of judgment contained numerous errors and must be corrected. In addition, the judge did not specify which fines and fees he was not going to impose, and the judge failed to impose certain fees that are mandatory. Remanded for the judge to orally ponounce the fines and fees it intends to impose.
The judgment against a defendant in a felony case must be pronounced by the court with the defendant, or an attorney for the defendant, present. Fines and fees, as part of the judgment, must be orally pronounced and cannot be simply added to the judgment later outside defendant’s presence. Where there is a discrepancy between the oral pronouncement and the abstract of judgment, the oral pronouncement controls.
PEN 1191
PEN 1193
People v. Zackery (2007) 147 Cal.App.4th 380, 388-389
People v. Mesa (1975) 14 Cal.3d 466, 471
The case must be remanded for the juvenile court to declare the four offenses misdemeanors or felonies as required by Welfare and Institutions Code section 702.
Crimes punishable as either a misdemeanor or a felony at the discretion of the sentencing court are known as wobblers.
In re F.M. (2023) 14 Cal.5th 701, 704
If a minor commits a wobbler, the court shall declare the offense to be a misdemeanor or felony. The juvenile court must make this declaration at a hearing so the record expressly reflects the court was “‘aware of, and exercised its discretion’” to treat the offense as either a misdemeanor or a felony.
WIC 702
In re F.M. (2023) 14 Cal.5th 701, 705
Neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court. Absent a juvenile court’s express declaration, or other record evidence establishing, it was aware of and exercised its discretion, the matter must be remanded for the requisite declaration to be made.
In re Manzy W. (1997) 14 Cal.4th 1199, 1208-1209
Fourth Holding:
A claim of section 702 error is not forfeited by the defense’s failure to object in the juvenile court.
In re F.M. (2023) 14 Cal.5th 701, 710-711
We generally review sentencing decisions for abuse of discretion. A court abuses its discretion when its decision is arbitrary or capricious or exceeds the bounds of reason under the circumstances. A failure to exercise discretion also may constitute an abuse of discretion.
People v. Sandoval (2007) 41 Cal.4th 825, 847-848
People v. Carbajal (1995) 10 Cal.4th 1114, 1121
The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654. It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.
Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.
PEN 666.5
People v. Neal (1993) 19 Cal.App.4th 1114, 1120
The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.
PEN 1018
People v. Hofferber (1977) 70 Cal.App.3d 265, 268
The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.
In re Merrick V. (2004) 122 Cal.App.4th 235, 249
A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.
PEN 654
PEN 954
People v. Reed (2006) 38 Cal.4th 1224, 1226−1227
People v. Jones (2012) 54 Cal.4th 350, 353
The matter was remanded back to this course following an earlier appeal, for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261. We once again affirmed the judgment, but remanded the matter to the trial court with instructions to determine whether petitioner was entitled to a Franklin hearing. Petitioner’s appeal was not final until 2017, after Proposition 57 went into effect on November 9, 2016. Thus, his sentence was nonfinal for purposes of Prop. 57’s application. As such, pursuant to Padilla, he is entitled to a transfer hearing
Prop. 57 affords the right to a juvenile transfer hearing to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted. Prop. 57 applies to a sentence that was imposed prior to Prop. 57 but later vacated through a subsequent habeas proceeding. Here, petitioner’s case was directly filed in adult court before Prop. 57 was enacted, but his sentence was vacated through a habeas corpus petition subsequent to the effective date. Thus, his sentence was nonfinal for purposes of Prop. 57’s application. As such, pursuant to Padilla, he is entitled to a transfer hearing. Respondent concedes this position. Thus, it is appropriate to grant the requested relief.
People v. Superior Court of Riverside County (Lara) (2018) 4 Cal.5th 299, 304
People v. Padilla (2022) 13 Cal.5th 152, 159