Tag Archives: Sentencing

Abstracts and Minutes, Jurisdiction, Sentencing

Case: 000147

Posted on by Gary McCurdy

Error and/or relief

The Department of Corrections and Rehabilitation (CDCR) believed the abstract of judgment was ambiguous because the felony complaint had specifically alleged defendant’s offense was committed under circumstances that would have rendered it a violent felony pursuant to section 667.5(c)(21), but it is not clear from the Minute Order or the Abstract whether the allegation was found true.

The trial court responded by amending the abstract of judgment to check the box indicating that the offense for which petitioner was convicted constituted a violent felony and by forwarding a copy of the amended abstract of judgment to CDCR. We conclude the trial court lacked jurisdiction to modify the abstract of judgment in the manner that it did after execution had commenced, requiring vacatur of the amended abstract of judgment and reinstatement of the original abstract.

First Holding:

Where a trial court fails to make a necessary finding on a special allegation and imposes a sentence as if the finding were not true, we presume the omission was deliberate and the trial court’s silence operates as a not true finding. In Candelario, the defendant admitted the truth of a special allegation that he suffered a prior conviction at the time he entered his plea, but the trial court omitted any reference to the allegation in its minute order and abstract of judgment, although the printed form contained a box specifically for such entries.

In evaluating the effect of the omission, our high court explained that admission of the prior offense did not thereby relieve the court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such judgment entered in the official records of the court. If the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. Even when the defendant admits the prior conviction, the court is not compelled to make a finding on the charge.

Authority:

In re Candelario (1970) 3 Cal.3d 702

Second Holding:

The failure to check the box in the abstract of judgment form indicating that defendant’s conviction constituted a violent felony may have been erroneous, but under Candelario and other cases, any such error would have been upon judicial error and not an error in the abstract of judgment. Instead, the abstract of judgment appears fully consistent with the trial court’s oral pronouncement of judgment omitting a true finding on the special allegation and imposing a sentence consistent with a conviction for a nonviolent felony.

Authority:

In re Candelario (1970) 3 Cal.3d 702

People v. Hartsell (1973) 34 Cal.App.3d 8, 14-15 [failure to mention prior conviction at the time judgment is pronounced must be interpreted as deliberate act of leniency]

People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [When no words are used and the trier of fact fails to make a finding the effect is the same as a finding of not true]

People v. Burnett (2004) 116 Cal.App.4th 257, 260-261 [On a silent record, the Court of Appeal will presume that the trial court’s failure to impose a statutorily mandated fine was a result of making factual findings in support of a statutory exception to imposition of the fine]

People v. Farias (2023) 92 Cal.App.5th 619, 635-636 [In the absence of any mention of necessary findings under the three strikes law at the time of sentencing or in the abstract of judgment, we treat defendants as if the trial court concluded the strike allegations were not true]

Third Holding:

Given our conclusion that the trial court’s original judgment in 2017 should be interpreted as a conviction for a nonviolent felony, the trial court had no jurisdiction to amend the judgment to add a true finding. As the California Supreme Court has repeatedly explained, under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. And a judgment for imprisonment ordinarily is deemed executed when a certified copy of the minute order or abstract of judgment is furnished to the officer whose duty it is to execute the judgment.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Howard (1997) 16 Cal.4th 1081, 1089

Fourth Holding:

The exceptions to the rule are limited and do not apply here. This was not a clerical error that could be corrected at any time. This was not a request by CDCR for resentencing under section 1172.1 (which would prohibit a sentence greater than the initial sentence). Because the failure to make any finding on the special allegations pursuant to section 667.5 operates as a finding of not true on the allegation, the sentence was not unauthorized, so there is no need to enter the debate on the authority of a court to correct an unauthorized sentence at any time, even when the matter has not vested jurisdiction.

Authority:

People v. Farias (2023) 92 Cal.App.5th 619, 635-636

People v. Codinha (2023) 92 Cal.App.5th 976, 1120 [holding a trial court that imposes an unauthorized sentence retains jurisdiction to correct the sentence at any time the error comes to its attention]

People v. Boyd (2024) 103 Cal.App.5th 56, at pp. 67-68 [disagreeing with Codinha, stating that no cases hold that trial courts can act to correct unauthorized (or unlawful or invalid) sentences outside of some other posture where they independently have jurisdiction to do so]

People v. King (2022) 77 Cal.App.5th 629, at pp. 634-642 [The unauthorized sentence doctrine does not itself create jurisdiction for a trial court to rule on an incarcerated defendant’s motion to correct an alleged illegal sentence]

People v. Singleton (2025) 113 Cal.App.5th 783, 797

Sentencing

Case: 000146

Posted on by Gary McCurdy

Error and/or relief

A defendant is entitled to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate. The court is directed to recalculate the amount of custody credit he should receive.

First Holding:

Section 2900.5 entitles a defendant to credit for actual time spent in custody before the commencement of a prison sentence, even when the sentence is indeterminate.

Authority:

PEN 2900.5

People v. Duff (2010) 50 Cal.4th 787, 793

People v. Herrera (2001) 88 Cal.App.4th 1353, 1365

Second Holding:

A sentence for possession of specified weapons while confined in (or being conveyed to or from) any penal institution is to be served consecutively.

Authority:

PEN 4502

Third Holding:

Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.

Authority:

PEN 2900.5

Appellate Principles, Plea bargains, Sentencing

Case: 000142

Posted on by Gary McCurdy

Error and/or relief

Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.

First Holding:

The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

Second Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

Authority:

PEN 1192.5

Third Holding:

A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5

Fourth Holding:

A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.

Authority:

People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224

Fifth Holding:

Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024-1025

People v. Cruz (2013) 219 Cal.App.4th 61, 65

Sixth Holding:

A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required.

Authority:

People v. Vargas (2007) 148 Cal.App.4th 644, 651

Appellate Principles, Sentencing, Sixth Amendment

Case: 000141

Posted on by Gary McCurdy

Error and/or relief

The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).

First Holding:

It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant. 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 defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

PEN 1170

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

Erlinger v. United States (2024) 602 U.S. 821

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

People v. Wiley (2025) 17 Cal.5th 1069, 1085

Second Holding:

Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

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

Third Holding:

Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 352–353

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right. Here, the defendant initially requested a jury trial. Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury. Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal.

Authority:

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

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. McCullough, (2013) 56 Cal.4th 589, 593

Fifth Holding:

But even assuming the forfeiture rule applies, we exercise our discretion to address the issue. Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

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

People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions]

Sixth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence must be reversed unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Sentencing

Case: 000136

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentences for both counts 2 and 3 in violation of section 654.

First 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. Therefore, section 654 prohibits multiple punishment for offenses committed during a single or indivisible course of conduct.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208

Second Holding:

Section 654 prohibits the imposition of concurrent sentences for offenses committed during a single or indivisible course of conduct. The accepted procedure for such offenses is to sentence defendant for each count and stay execution of sentence on certain counts to which section 654 is applicable.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Third Holding:

The trial court erred by imposing punishment for both count 2 and count 3 because both offenses arose out of a single or indivisible course of conduct. Both counts 2 and 3 were committed during the defendant’s single or indivisible course of conduct of driving his car and causing injury to one victim. Therefore, section 654 prohibits punishment of the defendant for both counts. Because under amended section 654, the trial court has discretion whether to punish the defendant for either count 2 or count 3, we reverse its imposition of punishment for both counts and remand the matter for the limited purpose of resentencing him on count 2 and count 3.

Authority:

PEN 654