Tag Archives: Sentencing

Elements of crime, Sentencing, Statutory interpretation

Case 001150

Posted on by Gary McCurdy

Error and/or relief

The court had no jurisdiction to issue a post-sentence protective order on a person who was neither a victim nor a percipient witness.

First Holding:

Although the defendant did not object to the protective orders, sentences entered in excess of a trial court’s jurisdiction may be challenged for the first time on appeal. We therefore address the defendant’s objection to the protective orders issued under section 136.2.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

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

Second Holding:

Section 136.2 does not authorize post-sentence protective orders based on his conviction for assault with a deadly weapon. Section 136.2(a) provides that, upon a good cause belief that a victim or witness was harmed, intimidated, or dissuaded, a court with jurisdiction over a criminal matter may issue an order restraining the defendant from, among other things, communicating with a specified witness or a victim except through an attorney under reasonable restrictions that the court may impose.

Section 136.2(i) also provides that when a criminal defendant has been convicted of certain specified offenses, at the time of sentencing a trial court shall consider issuing an order restraining the defendant from any contact with a victim that may extend up to 10 years. Subdivision (i)(2) also permits similar orders concerning percipient witnesses that have been harassed.

Authority:

PEN 136.2

Third Holding:

Prior to 2011, section 136.2 permitted protective orders only during the pendency of the criminal proceedings and did not authorize such orders after the defendant was sentenced.

Authority:

People v. Stone (2004) 123 Cal.App.4th 153, 159

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

People v. Selga (2008) 162 Cal.App.4th 113, 118

Fourth Holding:

The legislative history reveals that the Legislature added subdivision (i) to section 136.2 in express reliance on the decisions holding that subdivision (a) does not authorize post-sentencing restraining orders. Thus, it is clear that the Legislature understood that subdivision (a) of section 136.2 does not authorize post-sentence protective orders and that the section authorizes such orders only under subdivision (i).

Authority:

Sen. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) Feb. 18, 2011, p. 6

Assem. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) as amended May 2, 2011, p. 2

Fifth Holding:

Section 136.2(i) authorizes post-sentence protective orders when a criminal defendant has been convicted of a crime involving domestic violence, as defined in section 13700 or in section 6211 of the Family Code; a violation of section 236.1(a), (b), or (c) prohibiting human trafficking; section 261; section 261.5; former section 262; section 266h(a); section 266i(a); a violation of section 186.22; or a crime that requires the defendant to register pursuant to section 290(c).

The defendant’s conviction does not fall within any of those categories, and the protective order was unauthorized. The protective orders against the defendant are stricken.

Authority:

PEN 136.2(i)

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

Fines and fees, Sentencing

Case 001147

Posted on by Gary McCurdy

Error and/or relief

The court erred in following the probation officer’s report and setting the restitution fine under section 1202.4(b) and the corresponding parole revocation restitution fine (under 1202.45) in the amount of $25,000. We modify the restitution fine and the parole revocation fine to the maximum permitted by law, $10,000.

First Holding:

Section 1202.4(b) states that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. If the person is convicted of a felony, the fine shall not be less than $300 and not more than $10,000 Thus, the maximum restitution fine that may be imposed in a criminal prosecution is $10,000, regardless of the number of victims or counts involved.

Authority:

PEN 1202.4(b)

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534

Second Holding:

The parole revocation restitution fine in section 1202.45(a) is required to be in the same amount as that imposed pursuant to section 1202.4(b).

Authority:

PEN 1202.45(a)

People v. Smith (2001) 24 Cal.4th 849, 853 [Under section 1202.45, a trial court has no choice and must impose a parole revocation restitution fine equal to the restitution fine whenever the sentence includes a period of parole.]

Sentencing

Case 001146

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to resentence the defendant as a third strike offender, because the prior convictions counted as strikes were all based on a single act against multiple victims, and must count as only a single strike, subjecting the defendant to only as a second-strike offender.

Holding:

Shaw held a defendant who commits a single criminal act that harms multiple victims earns one strike for purposes of Three Strikes sentencing, not multiple. In this case, the defendant’s five prior convictions arose from a single act of threatening five hostages with a [specified weapon]. All but one of the defendant’s strikes should be dismissed, and the court should resentence him as a second-strike offender.

Authority:

People v. Shaw (2025) 18 Cal.5th 1089, 1103 [the rule that a trial court is required to dismiss a strike when two of a defendant’s prior strikes are the result of the same act applies in cases in which the defendant’s single act harmed multiple victims]

Appellate Principles, Sentencing

Case 001145

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing a post-sentencing protective order and in doubling the middle term when the strike had been dismissed as part of the plea agreement.

First Holding:

A court may issue a protective order to protect a witness or victim during the pendency of a criminal case. Generally, protective orders issued under section 136.2 are limited in duration and may not extend beyond the court’s jurisdiction. It was therefore error for the court to impose a protective order to extend past sentencing.

Authority:

PEN 136.2

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

Second Holding:

The issue of the propriety of the issuance of a protect order may be raised on appeal despite a lack of objection.

(Gary note: The court cited Ponce, but did not elaborate on its holding. I have set forth the Ponce actual holding.)

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381 (As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) 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 three-year protective order during sentencing, we will consider Ponce’s claim on the merits.)

Third Holding:

It was error to impose a second-strike punishment, because the defendant did not admit the prior strike. The strike prior allegation was dismissed when the defendant was sentenced.

(Gary note: The court did not cite any authority for this holding, most likely because it is so obvious. I have listed the two statutes pertaining to the Three Strikes law for your convenience.

(Section 667 was amended by the Legislature in 1994 to add the Strikes alternative sentencing scheme in addition to the already-existing section 664(a) enhancement on serious felony convictions for each prior conviction of a serious felony brought and tried separately.

(Section 1170.12 was added by initiative (Proposition 184) later in 1994. Somewhat confusingly, perhaps, both statutes co-exist. Both were amended in 2012 by Proposition 36.)

Authority:

PEN 667(b)-(j)

PEN 1170.12