Tag Archives: Sentencing

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

Amelioration, Sentencing

Case 001002

Posted on by Gary McCurdy

Error and/or relief

The court failed to recalculate the defendant’s credit for time served on resentencing under section 1172.75.

Holding:

If the court modifies a defendant’s sentence, then the court must recalculate the number of days that the defendant has already spent in custody and award those recalculated credits in the new abstract of judgment.

Authority:

People v. Buckhalter (2001) 26 Ca1.4th 20, 29, 37, 41

Fines and fees, Sentencing

Case 001001

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This is not a win, but it contains of discussion on what excess credit for time served can apply to in the context of fines or fees.)

Penal Code section 2900.5 does not apply to restitution fines or nonpunitive assessments.

First Holding:

At the conclusion of the defendant’s proceedings, his credit for time served exceeded the total prison commitment that was imposed. His contention that section 2900.5 requires that his excess credits be applied against the ordered restitution fine and ancillary fees raises a matter of statutory interpretation requiring this court to exercise de novo review.

Authority:

People v. Carranza (2016) 6 Cal.App.5th Supp. 17, 23.

Second Holding:

Section 2900.5(a) provides that all presentence custody credit awarded to a defendant shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence.

If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the base fine.

Authority:

PEN 2900.5

Third Holding:

Section 2900.5 has undergone several changes, and prior to 2014 included restitution fines as subject to offset by excess days. Since 2017, the relevant language now requires that credit be applied to “any base fine,” with penalties and assessments imposed on the base fine to be reduced by the percentage the base fine has been satisfied. Excess credits cannot be applied to reduce restitution fines. Section 2900.5 does not apply to restitution fines, nor does it apply to nonpunitive assessments, such as the court operations assessment and the criminal conviction assessment imposed in this case.

Authority:

PEN 2900.5

People v. Petri (2020) 45 Cal.App.5th 82, 92-93

People v. Pinon (2016) 6 Cal.App.5th 956, 967, fn. 7

People v. Rojas (2023) 95 Cal.App.5th 48, 56