Tag Archives: Excessive punishment

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

Discretion, Due process, Duty of the court, Eighth Amendment, Elements of crime, Equal protection, Fines and fees, Sentencing

Case 001110

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.

The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.

Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.

First Holding:

Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.

Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.

Authority:

People v. Nava (2024) 107 Cal.App.5th 624, 628-629

Second Holding:

The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.

The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.

Authority:

People v. McAllister (2026) 122 Cal.App.5th 92, 96

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]

Third Holding:

 A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14

Fourth Holding:

A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.

Authority:

PEN 1202.4(c), (d)

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fifth Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

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

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

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

Abstracts and Minutes, Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case 001061

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment erroneously reflects a fine of $300 that was not imposed by the trial court. It must be corrected. Further, the matter must be remanded for the court to give the defendant the opportunity to challenge the imposition of any fine as constitutionally.

First Holding:

As a general rule, when there is a discrepancy between the oral pronouncement of judgment and the trial court’s records, 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. Farell (2002) 28 Cal.4th 381, 384, fn. 2.

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

Second Holding:

While this appeal was pending, the California Supreme Court addressed the means by which a criminal defendant may challenge various payments typically imposed at sentencing. Those payments fall into three broad categories: fines, ancillary costs, and victim restitution.

As to fines, Kopp did not find a due process requirement to hold an ability to pay hearing before imposing every punitive fine. Instead, Kopp clarified that an excessive fines analysis, which includes consideration of ability to pay, is the proper vehicle to challenge punitive fines” under either the federal or state Constitutions.

As to ancillary costs, Kopp clarified that an equal protection analysis is appropriate and held that equal protection principles require a court, upon request, to consider a defendant’s inability to pay before imposing a court operations assessment.

As to restitution, Kopp reiterated that crime victims have a right to secure restitution from the persons convicted of the crimes causing the losses they suffer.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 12, 23, fn. 17, 30

Third Holding:

Because the defendant did not have the benefit of Kopp’s reasoning and did not invoke the excessive fines clauses in the trial court, consistent with Kopp, we remand to give him the opportunity to assert the legal analyses applicable to such a challenge and argue how the particular facts of this case inform such an inquiry.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23

Appellate Principles, Effective assistance of counsel, Fines and fees, Sentencing, Standard of review

Case 001050

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed fines and ancillary costs without considering the defendant’s ability to pay. The ancillary fees imposed on the defendant are vacated, and this matter is remanded to the trial court with instructions to consider whether the defendant has the ability to pay the court operations assessment and the court facilities assessment imposed in his sentence.

First Holding:

We review the imposition of fines and assessments for abuse of discretion.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1043

Second Holding:

The respondent argues that the defendant forfeited the issue regarding his ability to pay because defense counsel did not object to the fines or assessments imposed. The defendant states that he personally objected that he was unable to pay, preserving the issue for appeal, or his counsel rendered ineffective assistance of counsel for failing to object.

In light of the ineffective assistance of counsel claim, we exercise our discretion to reach the merits of the defendant’s challenge.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

Third Holding:

Kopp divided court-ordered payments into three categories: fines, ancillary costs, and victim restitution.

Addressing fines, Kopp held that fines (including restitution fines under section 1202.4) are punitive in nature, that fines should be analyzed under the excessive fines clauses in the United States and California Constitutions, and that courts need not hold a hearing on a defendant’s ability to pay before imposing all fines.

By contrast, Kopp continued, ancillary costs (including court facilities fees under Government Code section 70373 and court operations fees under section 1465.8) are not punitive in nature, and equal protection principles require a rational basis for treating ancillary fees for indigent criminal defendants differently than indigent civil litigants. Finding no such basis, Kopp concluded that, when requested, trial courts must consider a defendant’s ability to pay ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 18-24, 25, 28, 30

Fourth Holding:

Points perfunctorily asserted in briefing on appeal without argument in support are not properly raised.

Authority:

People v. Williams (1997) 16 Cal.4th 153, 206