Tag Archives: Sentencing

Eighth Amendment, Equal protection, Fines and fees, Sentencing

Case: 000338

Posted on by Gary McCurdy

Error and/or relief

When it initially granted the defendant probation, the court waived various fines and assessments based on indigence. On revocation of probation, the court imposed a restitution fine and other assessments. Remanded for the court to consider the defendant’s challenges to the fees and assessments in light of a recent Supreme Court decision.

First Holding:

Under the Supreme Court’s holding in Kopp a defendant may challenge the imposition of any fine as constitutionally excessive. Because Kopp was decided after entry of the juidgment on appeal here, the defendant should have the opportunity to make such a challenge. Though the court could determine that the issue was forfeited for lack of objection, forfeiture may be excused where to require defense counsel to raise an objection would place an unreasonable burden on defendants to anticipate unforeseen changes in the law.

Authority:

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

People v. Perez (2020) 9 Cal.5th 1, 8

People v. Brown (2024) 101 Cal.App.5th 113, 127 [Courts generally decline to apply the forfeiture rule to a right derived from recent, unanticipated changes to the law.]

Second Holding:

A restitution fine under section 1202.4(b)(1) is required in every case where a person is convicted of a crime unless the court finds compelling and extraordinary reasons for not doing so and states those reasons on the record. ) Section 1202.4, subdivision (b)(1), states that the minimum restitution fine is $300 for each felony conviction and that the maximum fine is $10,000. Section 1202.4, subdivision (c), allows the court not to impose the restitution fine for compelling and extraordinary reasons, but states the defendant’s inability to pay is not a compelling and extraordinary reason not to impose the minimum fine. Thus, the defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine.

Authority:

PEN 1202.4
People v. Kopp (2025) 19 Cal.5th 1, 13, 30

People v. El (2021) 65 Cal.App.5th 963, 967

People v. Preston (2015) 239 Cal.App.4th 415, 423

People v. Miracle (2018) 6 Cal.5th 318, 356

People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033 [Under section 1202.4(c), the trial court may not consider a defendant’s ability to pay when imposing the minimum restitution fine of $300, but the court may consider the defendant’s ability to pay if the court imposes a restitution fine above the minimum.]

Third Holding:

Although fines may properly be imposed as punishment for crime, the “excessive fines analysis” under the United States and California Constitutions, which considers ability to pay, is the proper vehicle to challenge punitive fines. But there is no due process requirement to hold an ability to pay hearing before imposing every punitive fine.

Authority:

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

Fourth Holding:

Section 1465.8(a)(1) requires, to assist in funding court operations, an assessment of $40 to be imposed on every conviction for a criminal offense. Government Code section 70373(a)(1) requires, to ensure and maintain adequate funding for court facilities, that $30 assessment be imposed on every conviction for a criminal offense. Both costs are mandatory. But equal protection principles require a court, upon request, to consider a 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).

Authority:

PEN 1465.8

GOV 70373(a)(1)

People v. Kopp (2025) 19 Cal.5th 1, 9, 15

People v. Robinson (2012) 209 Cal.App.4th 401, 405

Duty of the court, Sentencing, Standard of review

Case: 000336 (There is no 000335)

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence for either the assault or the battery conviction.

First Holding:

Although Code of Civil Procedure section 269 provided defendant with a statutory right to a certified shorthand reporter rather than an electronic recording, we conclude violation of that statutory right was harmless. The proceedings were recorded electronically and extensive transcripts were prepared based on the recordings.

The California Supreme Court has held that the trial court’s failure to comply with Penal Code section 190.9, requiring that all proceedings in a capital case be conducted on the record with a court reporter present, was harmless where the record was nevertheless adequate to permit meaningful appellate review.

Similarly, here, defendant possessed a statutory right to a certified court reporter, but the trial court’s inability to comply with that right, regardless of the reason, was harmless so long as the electronic recording produced an adequate appellate record.

(Gary note:  You might want to look at Family Violence Appellate Project v. Superior Court (Contra Costa County) 8/10/26 S288176, in which the Supreme Court recognized the right to a verbatim transcript, whether by certified shorthand reporter or electronic, despite the Government Code section 69957 proscription against use of electronic recording other than in limited exceptions.  While the case was a civil dispute, the principles would seem to apply in criminal cases as well.  It’s at least worth looking at, because it may be useful on the quality of the transcript process even where criminal proceedings are electronically recorded.)

Authority:

CCP 269

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1256-1258 (Hajek and Vo were abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216)

Second Holding:

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.

Authority:

PEN 654

Third Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act.

Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Section 654 prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective.

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Latten (2021) 63 Cal.App.5th 574, 577

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Fourth Holding:

Section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Thus, unless the record clearly indicates which sentence the trial court would stay, remand is required to permit the trial court to exercise its discretion.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Duty of the court, Sentencing

Case: 000334

Posted on by Gary McCurdy

Error and/or relief

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.

Holding:

The trial court is directed to amend the abstract of judgment to reflect the correct days of custody credit.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628

People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8

Sentencing

Case: 000333

Posted on by Gary McCurdy

Error and/or relief

The court erred by sentencing appellant to a consecutive mid-term of eight years on count 6, because he was convicted of only a single relevant offense. The mandatory consecutive sentencing scheme in section 667(d) can apply only when a defendant stands convicted of multiple enumerated sex offenses

Holding:

The trial court sentenced appellant to a consecutive mid-term of eight years on count 6 under section 667.6(d)(1). But as the parties correctly note, the mandatory consecutive sentencing scheme in subdivision (d) can apply only when a defendant stands convicted of multiple” enumerated sex offenses under this statute. Here appellant was convicted of only one offense under section 667.6(e) and therefore the sentence on count 6 must be reconsidered.

Authority:

People v. Jones (1988) 46 Cal.3d 585, 594, fn. 5

Elements of crime, Sentencing

Case: 000332

Posted on by Gary McCurdy

Error and/or relief

We reverse count 5 because section 4502 permits only a single conviction for possession of more than one weapon at the same time and place in prison.

Holding:

Section 4502 permits only a single conviction for possession of more than one unlawful weapon at the same time and place in prison.

Authority:

People v. Rowland (1999) 75 Cal.App.4th 61, 64-67

(GARY NOTE: The opinion in Rowland relied on People v. Kirk (1989) 211 Cal.App.3d 58, which held that possession of more than one sawed-off shotgun at the same time could result in only one count of conviction under what was then section 12020.

(What was then section 12020 has since been broken down into numerous sections by the Deadly Weapons Recodification Act of 2010. Its provisions were spread among many new code sections. Best to look at the charging document for the charge, but also look for separate sections that may define the terms.

(Subsequent to Kirk, the Legislature amended what was then section 12001 (now section 17800) to clarify that possession of more than one prohibited weapon simultaneously constituted separate offenses, each of which could be charged. The legislation specified the code section affected by the amendment, and Rowland relied on the absence of mention of section 4502 to conclude that possession of more than one weapon simultaneously under section 4502 still was limited to a single count, at least in part on the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). The holding in this Case 000332 applied to section 4502. Rowland and its progeny should be used very carefully, and be cited only if its rationale has not been legislated away with respect to your given facts.)