Tag Archives: Sentencing

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000320

Posted on by Gary McCurdy

Error and/or relief

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.

First Holding:

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.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

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

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. 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.

Authority:

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]

Third Holding:

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.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 381

In re Mattison (2025) 115 Cal.App.5th 1062, 1067

Abstracts and Minutes, Appellate Principles, Sentencing

Case: 000318

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to prison terms of 60-to-life plus 13 years under both the Three Strikes law (section 667) and the Habitual Offender provisions of section 667.7. The sentence included 13 years for enhancements. The judgment is modified to strike the great bodily injury enhancement imposed under section 12022.7(a) and the two prior serious felony enhancements imposed under section 667(a). On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

First Holding:

As relevant here, section 667.7 defines a habitual offender as any person convicted of a felony in which the person inflicted great bodily injury as provided in section 12022.53 or 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in section 667.5 for the crime of assault with a deadly weapon. A habitual offender with two prior separate prison terms shall be sentenced to life in prison and shall be ineligible for parole for a period of time calculated as the longest of three options: (1) 20 years; (2) the determinate term that would be imposed under section 1170, including any enhancements; or (3) any period prescribed by Section 190 or 3046. In other words, a habitual offender is not eligible for parole for a minimum of 20 years and for at least the duration of the sentence that would otherwise be imposed for the crime, including applicable enhancements.

[Gary note: The minimum term was set at 60 years, which was arrived at by tripling the minimum 20 years to life set by section 667.7 in keeping with section 667(e)(2)(A)(i), which sets the minimum term for Three Strikes sentences at “three times the term otherwise provided as punishment for each current felony conviction” if that produces the greatest Three Strikes sentence. The third option listed above–the reference to section 3046–is what makes that the applicable minimum term under section 667.7.]

Authority:

PEN 667.7

PEN 3046(a)(2) [(a) An inmate imprisoned under a life sentence shall not be paroled until he or she has served the greater of the following: … (2) A term as established pursuant to any other law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.]

Second Holding:

Section 667.7 is a self-contained sentencing scheme for habitual violent offenders. Because section 667.7 ensures that a habitual offender’s parole ineligibility lasts at least as long as the corresponding determinate sentence would, including enhancements, a sentencing court may not impose determinate sentence enhancements to further lengthen this period of parole ineligibility.

Authority:

People v. Jenkins (1995) 10 Cal.4th 234, 241

People v. Victor (1991) 227 Cal.App.3d 518, 524-526

People v. Tuggle (1991) 232 Cal.App.3d 147, 157-158, disapproved on another ground in Jenkins, at p. 252

Third Holding:

Permitting determinate enhancements to be imposed on top of a habitual offender life sentence would lead to absurd, anomalous, results. Section 667.7 expressly authorizes courts to use applicable enhancements to calculate the offender’s hypothetical determinate sentence. If the total exceeds 20 years, the determinate sentence defines the offender’s minimum parole eligibility. Thus, if the determinate sentence, including enhancements, for habitual offender A equaled 21 years, this would become his minimum term. Since the enhancements were used to calculate this actual minimum term, the court could not recycle the enhancements to add another five or ten years. If the determinate sentence, including enhancements, for habitual offender B, a less serious offender, did not exceed 20 years, then B would be hit twice. First, as the Legislature intended, his minimum term would be the statutory floor, 20 years. Second, the same enhancements, which were not enough to put his determinate term over 20 years, would then be added on top of the statutory floor. This is not what the Legislature intended.

Authority:

People v. Victor (1991) 227 Cal.App.3d 518, 524-525

People v. Jenkins (1995) 10 Cal.4th 234, 253 [noting that engrafting a term of enhancement onto the life term would lead to a result inconsistent with the statute’s methodology for setting the minimum period of required imprisonment, and nothing in the statute suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term]

Fourth Holding:

An appellate court may correct a sentence that is not authorized by law. Accordingly, we will strike the unauthorized enhancements from the defendant’s sentence.

Authority:

In re Ricky H. (1981) 30 Cal.3d 176, 191

In re Sandel (1966) 64 Cal.2d 412, 417-419

People v. Skeirik (1991) 229 Cal.App.3d 444, 468-469

Fifth Holding:

On the amended abstract of judgment form, the court should indicate in section No. 8 that the defendant was sentenced pursuant to both section 667.7 and the Three Strikes law.

[Gary note: The court cited no authority for its directive for the correction of the abstract of judgment. It isn’t entirely clear that the abstract was incorrect, but a fair reading led me to that conclusion. In any event, there is much authority supporting the court’s ability to order correction of abstracts of judgment and minute orders, and I have set out some below.]

Authority:

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

Amelioration, Duty of the court, Sentencing

Case: 000316

Posted on by Gary McCurdy

Error and/or relief

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.

First Holding:

Both the date of arrest and the sentencing should be included in credit calculations

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Second Holding:

The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.

Authority:

People v. Chilleli (2014) 225 Cal.App.4th 581, 591

Amelioration, Retroactivity, Sentencing

Case: 000315

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion to strike a strike that was based on gang activity under the definition existing prior to the changes to section 186.22 enacted by AB 333. The motion should have been granted, and we vacate the defendant’s admission of that strike. It is undisputed that the trial court did not evaluate whether the conduct underlying the defendant’s prior convictions would violate section 186.22 as amended by AB 333, and nothing in the record would have afforded it a basis to do so. We will reverse the judgment and remand the matter for the trial court to apply the elements of section 186.22 as amended. On remand, the People must decide whether to prosecute the prior strike allegations under the law as amended by AB 333 (2021–2022 Reg. Sess.). The trial court must resentence the defendant.

Holding:

When determining whether a prior serious felony conviction qualifies as a strike based on gang criminal activity, sentencing courts must consider whether the conduct underlying a prior conviction that by operation of section 186.22 is alleged to be a serious or violent felony still satisfies section 186.22 as amended.

Authority:

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

Sentencing, Sixth Amendment, Standard of review

Case: 000314

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term for the attempted murder conviction based on unpleaded and unproven aggravating factors. Accordingly, we will remand for resentencing and otherwise affirm the judgment.

First Holding:

In selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established. Further the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Third Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The Attorney General bears the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1090

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Fourth Holding:

The error was not harmless beyond a reasonable doubt. The record does not necessarily reflect that defendant’s convictions were increasing in seriousness. He was subject to a sustained juvenile petition for robbery, and his adult conviction was for unlawful firearm activity. A rational jury could have concluded that his felony conduct was not increasing in seriousness. The trial court’s remaining findings are subjective determinations that go beyond the mere fact of a prior conviction.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767 [The Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term]