Tag Archives: Sentencing

Elements of crime, Sentencing, Statutory interpretation

Case 001016

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to issue protective orders, because the defendant was not convicted of a qualifying offense, and the person for whose benefit order was issued was not a victim of the defendant’s crime.

First Holding:

Section 136.2(i)(1) provides authority for the imposition of postconviction protective orders where a defendant is convicted of a qualifying domestic violence offense.

Authority:

PEN 136.2(i)(1)

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Second Holding:

Domestic violence is abuse committed against, among other categories of victims, a person with whom the defendant had a dating relationship. Domestic violence is abuse perpetrated against (a) a spouse or former spouse[; (b) a cohabitant or former cohabitant; (c) a person with whom the respondent is having or has had a dating or engagement relationship; (d) a person with whom the respondent has had a child; (e) [a] child of a party; or (f) any other person related by consanguinity or affinity within the second degree.

“Abuse” is the intentional or reckless causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. Section 136(3) defines “victim” as any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state or any other statute or of the United States is being or has been perpetrated or attempted to be perpetrated.

Thus, a postconviction protective order under section 136.2(i)(1) is authorized if: (1) the defendant has been convicted of one (or more) of the statutorily enumerated crimes; and (2) the protected person qualifies as a victim of said crime(s).

Authority:

PEN 13700

FAM 6211

People v. Walts (2025) 112 Cal.App.5th 127, 139

People v. Lopez (2022) 75 Cal.App.5th 227, 237

Third Holding:

Courts do not have inherent authority to issue a criminal protective order absent a statute authorizing such an order.

Authority:

People v. Corrales (2020) 46 Cal.App.5th 283, 286-287

Fourth Holding:

The defendant was not convicted of a domestic violence or other offense that authorized the court to issue a protective order under section 136.2(i)(1). His conviction did not justify a protective order. Nor was the protected person a victim of his crime.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901 [where the defendant’s convictions are not domestic violence offenses, the court does not have statutory authority to impose a postconviction protective order, and it must be stricken]

People v. Pena (2025) 113 Cal.App.5th 640, 648 [the Legislature amended section 136.2(i)(1), in 2018 to specify that a victim is only a victim of the crime the defendant was convicted of committing]

People v. Walts (2025) 112 Cal.App.5th 127, 143 [if there is no reason to believe that an enumerated section 136.2(i)(1) offense for which the defendant was convicted is being or has been perpetrated or attempted to be perpetrated against a particular person, that person is not a victim and may not seek, or be named as protected party by, a protective order under section 136.2(i)(1)]

Equal protection, Fines and fees, Sentencing

Case 001015

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to stay the court facilities assessment and a court operations assessment based on defendant’s inability to pay. We vacate those orders.

Holding:

If a defendant requests such consideration, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1), or a court facilities assessment under Government Code section 70373(a)(1).

Here, however, the trial court at resentencing purported to impose but stay the assessments based on inability to pay, rather than waive them.

Because there appears to be no basis to justify denying criminal defendants a waiver of certain ancillary costs when civil litigants may receive such a waiver, we will modify the judgment to strike the imposed but stayed court facilities assessment and court operations assessment.

Authority:

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

Abstracts and Minutes, Sentencing, Statutory interpretation

Case 001014

Posted on by Gary McCurdy

Error and/or relief

Credit for time served should have been recalculated on resentencing following remand in an earlier appeal. There are errors in the abstract of judgment that require correction. We affirm that the defendant’s conduct credit is limited to 15%, even though the court struck the punishment for the enhancements responsible for making the felonies violent felonies.

First Holding:

Any portion of a sentence that a defendant has begun serving based on a judgment that is modified during the imprisonment term must be credited against any sentence the defendant later receives for the same acts.

The sentencing court must recalculate and, in the abstract of judgment, credit against the modified sentence the actual days spent in custody up to that date, plus the conduct credits accrued before the original sentencing.

The California Department of Corrections and Rehabilitation then calculates conduct credit for prison time after the original sentencing applying laws specific to persons serving terms in prison.

Authority:

PEN 2900.1

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 33

Second Holding:

Even though on resentencing the court struck the punishment for the enhancements that made the counts of conviction violent felonies as defined in section 667.5(c), the defendant’s conduct credit is still limited to 15% under section 2933.1, which limits conduct credit to 15% to “anyone who is convicted of a felony offense listed in subdivision (c) of section 667.5.”

Authority:

PEN 2933.1

Third Holding:

The definition of the term “convicted” in section 2933.1 is a question of statutory interpretation, which we review de novo.

Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statute’s words and give them a plain and commonsense meaning. We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.

If the statutory language is susceptible of more than one reasonable interpretation, we may look to extrinsic aids, including the statute’s ostensible purpose, the legislative history, public policy, administrative interpretation, and the pertinent statutory scheme. We will adopt the construction that is more favorable to the defendant but still aligns with the statutory purpose where the language of the statute is ambiguous.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141

People v. Murphy (2001) 25 Cal.4th 136, 142

In re M.M. (2012) 54 Cal.4th 530, 536

In re DeLong (2001) 93 Cal.App.4th 562, 568

People v. Manzo (2012) 53 Cal.4th 880, 889

Fourth Holding:

Section 2933.1 does not itself define “convicted,” and the term does not have a uniform meaning in California. It may include the corresponding judgment or refer solely to a verdict or guilty plea—in other words, to the adjudication of guilt. Section 2933.1(b) states the 15 percent limitation applies regardless of under which law the defendant is “sentenced.”

We presume the Legislature did not intend the term “convicted” to refer to a defendant’s “sentence” given its use of the two terms within the same statutory scheme. The court in Pacheco similarly held that striking the punishment associated with an enhancement does not defeat the finding of the truth of the allegation such that the defendant would still be a person “convicted of” a violent felony and subject to the 15 percent limit under section 2933.1. It is the conviction, and not the punishment, that is determinative.

Authority:

People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033

People v. Smith (2024) 100 Cal.App.5th 741, 760

In re Pacheco (2007) 155 Cal.App.4th 1439, 1444-1445

Fifth Holding:

Dismissing or striking an earlier conviction under section 1385 impacts sentencing, but in this case the allegations were not struck or dismissed. Only the punishment was struck.

Authority:

People v. Burke (1956) 47 Cal.2d 45

Sixth Holding:

The minute order and abstract of judgment must be corrected to reflect the court’s oral pronouncement of judgment and the concurrent term imposed for reckless driving. The minute order and abstract of judgment do not reflect the trial court staying the term on count 6 in its original judgment, and should also reflect a two-year concurrent term on count 36. 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

Seventh Holding:

The abstract reflects a concurrent one-third the middle term sentence for one of the counts. Concurrent sentences are calculated by using their full terms, not the one-third middle term formula for consecutive sentences. The minute order and abstract of judgment must therefore be corrected to impose a two-year concurrent sentence on count 36.

Authority:

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

Abstracts and Minutes, Jurisdiction, Probation Parole PRCS, Sentencing

Case 001013

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in revoking the defendant’s probation after the period of probation had expired, because it no longer had jurisdiction once the probation period expired.

First Holding:

A trial court, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years.

Revocation is a two-step process. First, when presented with probable cause of a violation, a court may summarily revoke supervision and issue a bench warrant for the defendant’s arrest.

Second, the defendant is entitled to a formal hearing at which the prosecution must prove the violation and a disposition may be made. If the violation is found true, the court may, among other options, terminate supervision and order incarceration in jail, or it may reinstate supervision and modify the conditions, such as by imposing a period of jail incarceration.

Authority:

PEN 1203.1(a)

People v. Braud (2020) 56 Cal.App.5th 962, 966

Second Holding:

The revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, while the trial court has the power to extend the probationary term, tolling at the summary revocation stage does not automatically extend the probationary period but rather preserves the court’s jurisdiction to proceed to the second step, a formal hearing to decide whether there has been a violation during the probation period, after the probation period has expired.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 504)

People v. Braud (2020) 56 Cal.App.5th 962, 968

Third Holding:

The defendant was placed on two years probation. The parties disagree on whether probation expired in April or had been extended to a late August date. Although a minute order of a hearing held on a date in late August stated that it was revoked on a specific date a few weeks before the hearing, the court never stated that probation was revoked at a hearing.

A trial court’s oral pronouncements control over a subsequently entered minute order. Moreover, the minutes from that earlier hearing do not say probation was revoked. There was no reporter at that earlier hearing. Thus, the record does not support the assertion that probation was revoked at that early August hearing.

Instead, the record does reflect that the court purported to revoke probation two months later, in October. But whether probation was set to expire in April (as the defendant claimed) or in August (as the prosecution claimed), both dates had passed before the October hearing.

As the probation expiration date had passed (whether in April or August), the court no longer had jurisdiction to decide whether the defendant had violated probation.

Authority:

People v. Sanchez (2019) 38 Cal.App.5th 907, 918–919

People v. Braud (2020) 56 Cal.App.5th 962, 968


(Gary note: I recognize that this summary is inartfully worded, a product of my attempt to anonymize the participants. During the defendant’s probation, it was revoked and reinstated a number of times. At some point–whether April or August–probation expired during a period when there was no order revoking probation, summary or otherwise. Had the court timely summarily revoked probation before its term expired, it would have had jurisdiction over the case even after the term expired. By not putting the probation into a “revocation” mode, probation simply terminated when the expiration date arrived. At that point, the court lost jurisdiction to conduct revocation proceedings.)

Plea bargains, Sentencing

Case 001012

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously composed the defendant’s eight-year prison sentence.

First Holding:

The parties agree that the trial court erred in imposing the defendant’s eight-year term as a three-year term under Vehicle Code section 10851, doubled pursuant to the Three Strikes law, plus a two-year enhancement pursuant to section 666.5. Section 666.5 is not an enhancement. It is an alternative sentencing scheme. The sentencing triad for section 666.5 is two, three, and four years.

Authority:

PEN 666.5

People v. Lee (2017) 16 Cal.App.5th 861, 869

Second Holding:

The parties and the trial court intended and agreed that the defendant would be sentenced to the upper term of four years pursuant to section 666.5, doubled to eight years pursuant to the Three Strikes law if he failed to comply with the conditions of the plea agreement. Because the court made a judicial error in rendering the judgment and not a clerical error, we remand the matter to the trial court to resentence the defendant pursuant to the plea agreement.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 63

Abstracts and Minutes, Amelioration, Appellate Principles, Sentencing, Standard of review

Case 001011

Posted on by Gary McCurdy

Error and/or relief

The court erred in ruling that the defendant was ineligible for resentencing under section 1172.75 because the abstract of judgment did not reflect any now-invalid prior prison term enhancements. The abstract of judgment was in error.

First Holding:

Before 2020, the Penal Code instructed criminal sentencing courts to impose a one-year term for each prior separate prison term or county jail term’ the defendant had previously served for a felony. Effective January 1, 2020, the Legislature eliminated one-year prior prison term enhancements except in cases involving prior terms for sexually violent offenses.

In 2021 the Legislature enacted section 1172.75, which “made the change retroactive. Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Authority:

PEN 667.5(b)

People v. Rhodius (2025) 17 Cal.5th 1050, 1053-1054

Second Holding:

In section 1172.75(b), the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes such an enhancement. Section 1172.75(b) requires the California Department of Corrections and Rehabilitations to identify for the sentencing courts all persons currently serving a term for a judgment that includes an enhancement described in subdivision (a).

Further, if a sentencing court verifies that a defendant was sentenced under an invalid enhancement, the court shall recall the sentence and resentence the defendant.

Authority:

PEN 1172.75(b) and (c)

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

Third Holding:

Where section 1172.75 applies, it requires full resentencing. Section 1172.75(d)(1) states that the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety, and further, resentencing shall not result in a longer sentence than the one originally imposed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1067

People v. Garcia (2024) 101 Cal.App.5th 848, 855 [By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.]

Fourth Holding:

We generally review a trial court’s decision under section 1172.75 for an abuse of discretion. Under an abuse of discretion standard, we review the trial court’s findings of fact for substantial evidence, consider whether the court’s rulings of law are correct, and determine whether the court’s application of the law to the facts is arbitrary or capricious. However, where the appeal from a resentencing order raises a question of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856, 857

People v. Espino (2024) 104 Cal.App.5th 188, 194 [reviewing de novo whether the word imposed as used in 1172.75 applies to cases where execution of a prior prison term enhancement was stayed], affirmed (2026) 20 Cal.5th 57

Fifth Holding:

The trial court’s oral pronouncement of judgment controls over a conflicting abstract of judgment. In this instance, the prior convictions were never stricken, and thus should have been reflected in the abstract of judgment. The defendant was eligible for resentencing under section 1172.75.

Authority:

People v. Whalum (2020) 50 Cal.App.5th 1, 15 [Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.]

People v. Leon (2020) 8 Cal.5th 831, 855 [Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error.]

Amelioration, Discretion, Sentencing, Standard of review

Case 001010

Posted on by Gary McCurdy

Error and/or relief

In resentencing the defendant, the court abused its discretion in not giving proper consideration to whether to strike prior strike convictions. Remanded for proper consideration.

First Holding:

Under section 1172.1, a trial court may recall and resentence “at any time” upon the recommendation of the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

Effective January 1, 2024, a trial court may recall a sentence and resentence a defendant on its own motion “at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law.

Once a trial court decides to recall and resentence, it may either reduce the sentence by modification or vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading.

In resentencing the defendant in the same manner as if they had not previously been sentenced, the resentencing court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, and whether those circumstances were a contributing factor in the commission of the offense.

Authority:

PEN 1172.1

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.

Section 1385(c)(2) further provides that, in exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. Accordingly, if the court finds that dismissal of an enhancement would endanger public safety, then the court need not consider the listed mitigating circumstances.

Authority:

PEN 1385

People v. Mendoza (2023) 88 Cal.App.5th 287, 296

Third Holding:

A court’s decision not to strike a prior serious felony enhancement is reviewed for abuse of discretion.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 585

People v. Jefferson (2016) 1 Cal.App.5th 235, 242–243 [a trial court’s exercise of discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice]

Fourth Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.

In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024,1029

Fifth Holding:

A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. In exercising its discretion, the court may give no weight whatsoever to factors extrinsic to the Three Strikes scheme.

Instead, preponderant weight must be accorded to factors intrinsic to the scheme, such the nature and circumstances of the defendant’s present felonies and the prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. In considering these intrinsic factors the court must determine whether the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.

While the purpose of the Three Strikes law was to ensure longer prison sentences, the “overarching consideration” and “underlying purpose” in striking prior conviction allegations is the avoidance of unjust sentences.

Authority:

PEN 1385(a)

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531

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

People v. Garcia (1999) 20 Cal.4th 490, 498–500

Sixth Holding:

Abuse of discretion in failing to strike a prior conviction occurs in limited circumstances: where the trial court is not aware of its discretion; where the trial court considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.

A reviewing court’s disagreement with the trial court’s weighing of proper factors (as distinct from the trial court’s reliance on improper factors in the weighing process) does not constitute an abuse of discretion.

We conclude from this record that the trial court failed to balance the appropriate factors set forth in Williams, that is, the defendant’s personal background, character, and prospects, and the specifics of his criminal history, the characteristics of the present offense for which he was being resentenced, or if a shorter sentence would accommodate risks to public safety.

Significantly, courts have reversed the denial of dismissal of prior strikes in instances where the prior strikes were far more serious than the defendant’s.

(Gary note: I have left out the appellate court’s recitation of facts peculiar to this defendant and the facts in this case, but court determined that the lower court had not given proper consideration of those factors. It remanded for a proper consideration.)

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 378-379

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029

People v. Avila (2020) 57 Cal.App.5th 1134, 1140–1141 [defendant’s three previous strikes were two robberies and assault with a knife]

Discretion, Sentencing

Case 001007

Posted on by Gary McCurdy

Error and/or relief

This is an appeal after resentencing under section 1172.75. The court erred in believing that the original sentence was unauthorized because full consecutive sentences on two of the counts had been mandatory. Thus, it was error for the court to vacate the original imposition of concurrent sentences and impose them consecutively.

Holding:

The trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts were mandatory.

Both crimes were committed on the same occasion on the same victim. Therefore, while section 667.6(c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. Similarly, at resentencing, the court was not required to impose a full consecutive sentence.

The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence the defendant pursuant to section 1172.75.

Authority:

PEN 667.6(c)

People v. Deloza (1998) 18 Cal.4th 585, 596–597, 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]

People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

Amelioration, Elements of crime, Retroactivity, Sentencing, Standard of review

Case 001006

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a new hearing on the defendant’s resentencing under section 1172.75, in light of new case law regarding examination of prior serious felonies and strikes depending on criminal gang activity. Further, the restitution fine must vacated, as it is more than 10 years old.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. The list of serious felonies includes any felony offense that would also constitute a felony violation of section 186.22. Section 186.22 defines substantive gang offenses and gang enhancements.

Authority:

PEN 667(e)

PEN 1170.12(c)

PEN 1192.7(c)(28)

PEN 667.5(c)

People v. Fletcher (2025) 18 Cal.5th 576, 582

Second Holding:

The Legislature enacted AB 333 (2021-2022 Reg. Sess.), which among other things, changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Fletcher held that prior convictions premised on section 186.22 must be examined under currently law in determining whether they qualify as prior serious felony convictions or strikes.

Authority:

AB 333

PEN 186.22

People v. Fletcher (2025) 18 Cal.5th 576, 585, 587

Third Holding:

When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. The Salazar court accordingly held that when a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Though the Salazar decision is premised on the trial court’s scope of discretion being changed during pendency of appeal, whereas here the trial court’s discretion has remained the same but a material fact about defendant’s past record has been modified since the time of sentencing. We nevertheless find the test set forth in Salazar to be applicable here, because the Salazar court itself observed the similarity between the two scenarios: A court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424-425

Fourth Holding:

Retrial of the strike under the current law would be appropriate, should the prosecutor so choose.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Fifth Holding:

The restitution fine was imposed in 2011. Section 1465.9(d) has been added since then, to provide that any restitution fine is unenforceable and uncollectible upon the expiration of 10 years after date of imposition.

Authority:

PEN 1465.9

Abstracts and Minutes, Duty of the court, Sentencing

Case 001005

Posted on by Gary McCurdy

Error and/or relief

Section 654 barred punishment for the vandalism counts because those offenses involved the same course of conduct and objective as the attempted burglaries. We modify the judgment to impose concurrent terms on the three vandalism, stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment to reflect the corrected sentence

First Holding:

Section 654 generally precludes multiple punishments for a single physical act that violates different provisions of law as well as multiple punishments for an indivisible course of conduct that violates more than one criminal statute. 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.

If, on the other hand, the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

Authority:

PEN 654

In re Raymundo M. (2020) 52 Cal.App.5th 78, 94

Second Holding:

When a trial court determines that section 654 prohibits multiple punishments, it must impose a sentence for the conviction for which punishment is disallowed but stay its execution. Dismissal or imposition of a concurrent sentence is prohibited.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

Third Holding:

While the trial court’s abstract of judgment properly stayed execution of punishment on vandalism two of the three counts subject to section 654, the abstract of judgment is not the judgment of conviction and does not control when it differs from the trial court’s oral judgment.

Here, the court’s language at sentencing was ambiguous: it said the vandalism counts would be “concurrent” and they “are 654” without expressly staying imposition of the concurrent sentences. Because the trial court verbally imposed an unauthorized sentence in violation of section 654, we direct that the abstract of judgment be corrected to the extent necessary to comply with section 654.

Authority:

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

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 001004

Posted on by Gary McCurdy

Error and/or relief

On appeal following remand from the defendant’s first appeal, the trial court failed to impose sentence on several counts whose punishment it stayed under section 654. It failed to impose a fine on a fifth count, and it improperly reimposed several other fines.

First Holding:

The court’s failure to pronounce sentence on some of the counts constitutes an unauthorized sentence. When a trial court determines that section 654 applies, the court must impose sentence on every count but stay execution as necessary to implement section 654. This procedure also applies when one of the sentences pertains to a misdemeanor conviction.

Authority:

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

People v. Mani (2022) 74 Cal.App.5th 343, 380

Second Holding:

The defendant’s conviction under Vehicle Code section 23152(a) (driving under the influence) requires a fine, but the court failed to impose a fine.

Authority:

VEH 23536(a)

VEH 23600

People v. Anderson (2020) 9 Cal.5th 946, 962 [defining an unauthorized sentence as one that cannot lawfully be imposed under any circumstances in a particular case]

Third Holding:

Having concluded that the trial court’s failure to impose sentences and to impose a fine resulted in an unauthorized sentence, we also conclude that remand is required to correct the errors. In other cases, we have exercised our authority under section 1260 to modify judgments in sentencing matters where remand would be futile or unnecessary because the record clearly indicated how the trial court would exercise its sentencing discretion.

Here, however, the trial court did not impose sentences on counts two, four, seven, and nine or the firearm enhancement associated with count two, or impose a fine on count six, either at the original sentencing or at the section 1172.75 resentencing. Given the range of sentencing options for the omitted counts and enhancement and the permissible range of the fine on count six, the record does not clearly indicate what sentences or fine the court would have imposed. Accordingly, remand is required.

Authority:

People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Fourth Holding:

We disagree with the People that on remand, the defendant is entitled to a full resentencing. Section 1260 grants appellate courts the authority to order limited remands for further proceedings that may be appropriate under the circumstances. In resentencing the defendant in 2025, the trial court considered the relevant factors in formulating a sentence it deemed appropriate based on his culpability, criminal history, and his risk of future dangerousness.

The two limited tasks on remand (imposing and staying sentences on the omitted counts that the court had already indicated it intended to stay and imposing a fine on count six) will not alter the overall sentencing scheme the trial court deemed appropriate such that resentencing on all nine counts would be required.

For these reasons, we order a limited remand.

Authority:

PEN 1260

People v. Wilson (2024) 16 Cal.5th 874, 948-949

People v. Stevens (1988) 205 Cal.App.3d 1452, 1456 [Correcting a sentencing error by excising only the flawed component of the sentence from the aggregate term may be appropriate in some contexts where the interests of justice and judicial economy do not require a restructuring of the entire sentencing format]

Fifth Holding:

The court erred in reimposing and staying several fees, despite making an implied finding that the defendant did not have an ability to pay. Equal protection principles require a court, upon request, to consider a 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).

Neither of the applicable statutes nor Kopp allows a trial court to impose then stay the court operations fee or the court facilities fee after it finds a defendant indigent. Once it found the defendant lacked the ability to pay, the court’s option was to not impose the fees.

Authority:

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

Sixth Holding:

The statutes authorizing certain other fees that were previously imposed have since been repealed and are now unenforceable and uncollectible. Any portion of a judgment imposing those fees must be vacated.

Authority:

GOV 6111(a)

Abstracts and Minutes, Appellate Principles, Sentencing, Standard of review

Case 001003

Posted on by Gary McCurdy

Error and/or relief

The verdict form contained a typographical error regarding the appropriate subdivision on the use of firearm enhancement. The reference to subdivision (d) in the verdict from is stricken. There are several errors in the abstract of judgment and minute order that require correction.

First Holding:

A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. Technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.

Where the error is in the recording of the judgment, as opposed to in the rendering of the judgment, it is clerical error which may be disregarded or corrected. Here, inclusion of subdivision (d) in addition to subdivision (a) was clearly a clerical error, and must be stricken from the judgment.

Authority:

People v. Jones (2014) 230 Cal.App.4th 373, 378–379

People v. Webster (1991) 54 Cal.3d 411, 447

People v. Camacho (2009) 171 Cal.App.4th 1269, 1273

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Second Holding:

The minute order fails to reflect that on motion by the prosecution the court dismissed the factors in aggravation. It must be corrected to reflect the dismissal. The abstract of judgment reflects that the defendant must pay [more than $10,000] to the Victim Compensation Board twice. The duplicate entry must be stricken from the abstract of judgment. There is an error on the abstract of judgment in reflect the determinate term where an indeterminate term has also been imposed, and the abstract of judgment must be corrected accordingly.

(Gary note: The court cited no authority for its orders directing the corrections, except for Wright, which it cited to demonstrate how the abstract should have been prepared. I have include some cases that the court could have drawn from as authority, had it felt it necessary.)

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 848 [where remainder of sentence is indeterminate, in section six, the determinate form CR-290 must show no time]

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