Tag Archives: Sentencing

Amelioration, Duty of the court, Sentencing, Sixth Amendment

Case 000450

Posted on by Gary McCurdy

Error and/or relief

In 2024, the defendant was identified as an inmate eligible for resentencing pursuant to section 1172.75. Without conducting a full resentencing hearing, the trial court struck the defendant’s prior prison term enhancements. No party was present, including counsel for the defendant. The sentence must be vacated and the matter remanded for a full resentencing hearing consistent with section 1172.75.

First Holding:

Prior to January 1, 2020, section 667.5(b) required a court to impose a one-year sentence enhancement for each separate prior prison term served for a nonviolent felony, unless the defendant remained free from custody for at least five years. Effective January 1, 2022, the Legislature retroactively invalidated prior prison term enhancements imposed under section 667.5(b) prior to January 1, 2020, unless the term was served for certain sexually violent offenses. The Legislature also created procedures, in what is now section 1172.75, for sentencing courts to recall and resentence defendants who were serving prison terms on judgments that included the now invalid enhancement.

Authority:

PEN 667.5

PEN 1172.75

Second Holding:

Under section 1172.75, if a trial court determines a defendant is serving a sentence that includes a now invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. At the resentencing hearing, the court must eliminate the repealed prior prison term enhancement. But that is not the only thing the court is required to do. Section 1172.75 provides specific instructions for the resentencing. The court shall appoint counsel for the defendant and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. Section 1172.75 also permits courts to consider postconviction factors in the resentencing inquiry, including evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

People v. Carter (2023) 97 Cal.App.5th 960, 966

Third Holding:

Here, the defendannt was eligible for relief under section 1172.75 as his prior convictions used for the prior prison term enhancements were not for a sexually violent offense. The trial court struck his prior prison term enhancements. The court, however, was required to conduct a full resentencing hearing, during which the defendant had the opportunity to be present and represented by appointed counsel. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 668, 673–674 [remanding for new hearing under sec. 1172.75 because defendant was not present at hearing and did not waive his presence]

People v. Cutting (2019) 42 Cal.App.5th 344, 346 [defendant’s absence from resentencing hearing constitutes federal constitutional error]

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Carter (2023) 97 Cal.App.5th 960, 968, 972 [defendant eligible for relief under sec. 1172.75 is entitled to full resentencing hearing to argue for further relief under other ameliorative changes]

People v. Coddington (2023) 96 Cal.App.5th 562, 568 [same]

Fourth Holding:

Upon resentencing the defendant, the court shall recalculate his custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40–41 [upon remand, trial court responsible for calculating all days defendant spent in custody prior to resentencing and presentence conduct credits prior to original sentencing]

Juveniles, Sentencing

Case 000449

Posted on by Gary McCurdy

Error and/or relief

The juvenile court lacked authority to commit the minor to the Secure Youth Treatment Facility, improperly imposed a restitution fine, and miscalculated the maximum confinement term. We reverse the order imposing the restitution fine, and remand for a new disposition hearing. Although the oral pronouncement did not address restitution, the minute order reflects a $240 restitution fine.

First Holding:

A minor can be committed to a Secure Youth Treatment Facility (SYTF) only if (1) The juvenile is adjudicated and found to be a ward of the court based on an offense listed in Welfare and Institutions Code section 707(b) and (2) The adjudication described in criteria (1) is the most recent offense for which the juvenile has been adjudicated. The phrase “most recent” describes when the minor committed the offense, not when the petition is adjudicated.

Appellant’s most recent offenses, criminal threats and burglary, are not among the offenses described in section 707(b). Accordingly, because these offenses were committed after appellant committed an assault with a firearm, an offense that is included in section 707(b), the juvenile court was not authorized to commit appellant to a SYTF. Remand is, therefore, necessary to allow the court to conduct a new disposition hearing

Authority:

WIC 875

In re B.J. (2020) 49 Cal.App.5th 646, 648

Second Holding:

The juvenile court imposed a $240 restitution fine under former section 730.6. While this appeal was pending, the Legislature amended section 730.6 and removed the requirement that a minor pay a restitution fine. The relevant portion of the statute now provides that the court shall not impose a separate and additional restitution fine against a minor found to be a person described in Section 602.

Authority:

WIC 730.6

In re Estrada (1965) 63 Cal.2d 740, 745-746 [ameliorative legislation changes applicable to cases pending on appeal]

Third Holding:

A court shall not commit a juvenile to any juvenile facility for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense. The aggregate term for an adult convicted of two or more felonies and receiving consecutive terms is the principal (i.e., the greatest term imposed) term plus the subordinate (i.e., other felony conviction with a consecutive term) term. Here, the middle term for both counts is three years. The subordinate term is one-third of the middle term. Therefore, the maximum that term of confinement is four years, or 1,460 days, not the 2,540 days set by the court.

Authority:

WIC 730(a)(2)

PEN 1170.1(a)

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Amelioration, Sentencing

Case 000447

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant, who was serving a life term under the 1994 Three Strikes Law, was entitled to be resentenced under the Three Strikes Reform Act of 2012, subject to a detrermination of danger to public safety in the context of the Reform Act.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) is legally invalid. The resentencing shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

Authority:

PEN 1172.75(a)

Second Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 (an initiative) changed the sentence prescribed for a third strike defendant whose current offense is not a serious or violent felony.

Under the Reform Act’s revised penalty provisions, many third strike defendants are excepted from the provision imposing an indeterminate life sentence and are instead sentenced in the same way as second strike defendants That is, they receive a term equal to twice the term otherwise provided as punishment for the current felony conviction. A petition process was set up under section 1170.126 for eligible candidates to seek resentencing under the Reform Act. If eligible, the defendant is to be resentenced pursuant to the Reform Act unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

Authority:

PEN 1170.126

People v. Conley (2016) 63 Cal.4th 646, 651-653

Third Holding:

After section 1172.75 was enacted, the Supreme Court needed to consider whether section 1172.75, by permitting recall and resentencing of indeterminate third strike sentences, amends section 1170.126, in violation of article II, section 10 of the California Constitution. It determined that, as a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838

Discretion, Duty of the court, Sentencing

Case 000446

Posted on by Gary McCurdy

Error and/or relief

Though affirming the lower court’s decision to not exercise its discretion to dismiss the prior serious felony enhancement, there was an error in the calculation of credit for time served.

First Holding:

A trial court’s refusal to dismiss a prior serious felony enhancement is reviewed on appeal under the deferential abuse of discretion standard.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 373

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Hodge (2024) 107 Cal.App.5th 985

Second Holding:

When a trial court declines to strike a five-year sentencing enhancement for a serious prior felony conviction, no error occurs if the trial court evaluates all relevant circumstances to ensure that punishment fits the offense and the offender.

Authority:

People v. Shaw (2020) 56 Cal.App.5th 582, 587

Third Holding:

A trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not aware of its discretion to dismiss or where the court considered impermissible factors in declining to dismiss,’ or where the sentencing norms established by the Three Strikes law may, as a matter of law, produce an arbitrary, capricious or patently absurd result under the specific facts of a particular case.

But it is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. A merely debatable ruling cannot be deemed an abuse of discretion. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 637

People v. Johnson (2022) 12 Cal.5th 544, 605

People v. Myers (1999) 69 Cal.App.4th 305, 310

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

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [Section 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety]

Fifth Holding:

The trial court awarded the defendant the number of days of actual custody credit that reflected his credits from the date of his incarceration to the date of his original sentencing hearing, and ordered the California Department of Corrections and Rehabilitation (CDCR) to calculate credits for the time he has been incarcerated at CDCR. On resentencing, a trial court must calculate a defendant’s custody credits through the date of the resentencing.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Discretion, Sentencing

Case 000445

Posted on by Gary McCurdy

Error and/or relief

Convicted of both murder and conspiracy to commit that murder, the court should have stayed the sentence for the conspiracy under section 654.

First Holding:

Section 654(a) provides in pertinent part that 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. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 295

Second Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Even concurrent sentences on convictions subject to section 654 are prohibited; the sentence on one of the two applicable convictions must be imposed and then stayed. The purpose of section 654 is to insure that a defendant’s punishment will be commensurate with his culpability.

Authority:

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

People v. Deloza (1998) 18 Cal.4th 585, 591–592

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Third Holding:

To determine the applicability of section 654, 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.

Authority:

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

Fourth Holding:

If the convictions involve more than one act, the court reaches step two of the section 654 analysis: whether the course of conduct involved multiple intents and objectives. At step two, whether crimes arise from an indivisible course of conduct turns on the perpetrator’s intent and objective. If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

Fifth Holding:

Because the conspiracy count in this case did not include a broader objective than the commission of the first degree murder, section 654 applied.

Authority:

People v. Dalton (2019) 7 Cal.5th 166, 247

People v. Lewis (2008) 43 Cal.4th 415, 439 [overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919]

People v. Briones (2008) 167 Cal.App.4th 524, 529

People v. Hernandez (2003) 30 Cal.4th 835, 866 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Ramirez (1987) 189 Cal.App.3d 603, 615–616

Sixth Holding:

We acknowledge the trial court’s discretion under section 654 to choose which punishment to stay. Nevertheless, we conclude that a remand is unnecessary because the trial court’s decision on which punishment to stay would make no difference to the total sentence for the defendant. In this case, the sentence for the first degree murder count and the conspiracy to commit murder count are the same, 25 years to life. Under these circumstances, we will correct the trial court’s error by modifying the defendant’s sentence to stay the punishment on count 2, the conspiracy to commit murder conviction and the attached enhancements, to comply with section 654.

Authority:

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

People v. Cortez (1998) 18 Cal.4th 1223, 1237
People v. Hernandez (2003) 30 Cal.4th 835, 870 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Calles (2012) 209 Cal.App.4th 1200, 1221

People v. Bey (2025) 108 Cal.App.5th 144, 167

Jurisdiction, Sentencing

Case: 000444

Posted on by Gary McCurdy

Error and/or relief

The trial court had no jurisdiction to modify the long-final judgment in response to a letter from the Department of Corrections and Rehabilitation (CDCR) that pointed out sentencing errors (which were adverse to the defendant’s interests). The defendant appealed, but the Court of Appeal dismissed the appeal because there was no jurisdiction in the lower court, and thus nothing to appeal from.

It did, however, treat the appeal as a petition for writ of habeas corpus and granted the writ, directing the trial court to to vacate the order modifying the defendant’s’ sentence on the conviction for dissuading a witness and reinstate the original sentence imposed on that count.

First Holding:

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. However, there are limited exceptions to this rule. For example, the court has inherent power to correct a clerical error at any time. A court also may resentence a defendant in connection with a petition for writ of habeas corpus or under specified conditions provided in section 1172.1.

Authority:

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

People v. Singleton (2025) 113 Cal.App.5th 783, 787, 790–791

Second Holding:

Here, the trial court made two modifications to the defendant’s sentence long after execution of the sentence had commenced. First, the court imposed a 10-year enhancement under section 12022.5(a), rather than under section 667.6(c). A record of the court’s oral pronouncement of the original sentence could not be produced for this appeal, so it is not clear if the court misspoke while announcing the sentence, or if the mistake appeared for the first time in the minute order.

In any event, it is apparent the court intended to impose the enhancement under section 12022.5(a), as alleged in the information and found true by the jury. Therefore, the error was essentially clerical, which the trial court had inherent discretion to correct at any time.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1294 [court’s inadvertent reference to the wrong statute at sentencing was a clerical error]

People v. Singleton (2025) 113 Cal.App.5th 783, 790–791

Third Holding:

Second, the trial court modified the defendant’s sentence to impose a full consecutive middle term on the dissuading a witness count. The original sentencing court imposed a consecutive one-third the middle term on that count, as is generally required under section 1170.1(a). However, the resentencing court determined section 1170.15 required it to impose a full consecutive term, presumably because the victim of the dissuading offense also was the victim of another felony conviction. A court’s failure to impose a full consecutive term under section 1170.15 is a judicial error, not a clerical error.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 792 [a court makes a judicial error when it fails to impose the legally required sentence under section 1170.15]

Fourth Holding:

Courts of Appeal are split on whether trial courts have inherent jurisdiction to correct an unauthorized sentence, i.e., a sentence that could not lawfully be imposed under any circumstance in the particular case. The majority of appellate courts have concluded they do not but others see it differently.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. King (2022) 77 Cal.App.5th 629, 633

People v. Boyd (2024) 103 Cal.App.5th 56, 62–63

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1122–1124

People v. Singleton (2025) 113 Cal.App.5th 783, 796–797

People v. Garcia (2025) 114 Cal.App.5th 139, 144–145

People v. Codinha (2023) 92 Cal.App.5th 976, 990

People v. Cervantes (2025) 115 Cal.App.5th 825

In re G.C. (2020) 8 Cal.5th 1119

Discretion, Sentencing, Standard of review

Case: 000443

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in ordering restitution in the amount of the full retail price of sunglasses that were returned to the victim, a retail store, by the police soon after the theft.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.

Restitution shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. A victim may also seek lost profits.

Authority:

PEN 1202.4(f)

Second Holding:

A prima facie case for restitution can be made based on a victim’s testimony or other claim or statement of the amount of economic loss. Once a prima facie showing of loss has been made, the burden shifts to defendant to demonstrate that the amount of the loss is other than that claimed by the victim.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

Third Holding:

We review restitution orders for abuse of discretion. Where the specific issue is whether the court’s factual findings support restitution, we review those findings for substantial evidence.

Authority:

People v. Millard (2009) 175 Cal.App.4th 7, 26

People v. Hume (2011) 196 Cal.App.4th 990, 995

People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 373

Fourth Holding:

Ordering a defendant to pay retail value is justified when a retailer shows it lost the opportunity to sell the stolen goods to customers at that price — in other words, that it lost profits because of the thefts.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1178 [retail value of recovered stolen property was not an appropriate measure of restitution when the prosecutor presented no evidence that the victim retailer lost any profits as a result of the theft]

Fifth Holding:

Had the victim been a person who purchased the sunglasses at a store for the retail price, the retail price may have been the accurate measure of damages.

But the victim retailer did not seek lost profits on its restitution request form or introduce evidence at the hearing supporting such a claim. The trial court, in fact, ordered defense counsel to refrain from examining the store manager about the store’s sales volume after the prosecutor objected on relevancy grounds. The restitution award was therefore limited to the replacement cost of like property.

Using retail value as the sole basis to calculate restitution, based on this record, resulted in a windfall to the victim retailer.

Authority:

PEN 1202.4(f)(3)(A)

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 [A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall]

People v. Valle (2023) 93 Cal.App.5th 1329, 1333 [awarding purchase price of stolen cell phone that was returned to victim was error when defendant elicited testimony the victim hoped to use or sell the phone]

Jurisdiction, Plea bargains, Sentencing

Case: 000442

Posted on by Gary McCurdy

Error and/or relief

The defendant entered into a plea agreement that stipulated the length of his sentence and how it was to be served (a split sentence under Realignment). When he was eventually sentenced, the court deviated from that agreed-on sentence. The defendand appealed. While the appeal was pending, the trial court and parties attempted to modify the judgment in accordance with the plea agreement. Because the defendant was never advised of his right to withdraw his plea if the court chose to not abide by the agreed sentence under section 1192.5, the matter is reversed to allow the defendant to withdraw his guilty plea. The trial court had no jurisdiction to modify the judgment while the appeal was pending.

First Holding:

A plea of guilty or nolo contendere may specify the punishment. Where, as here, 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 advisement required by section 1192.5(c) was not given here. 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:

PEN 1192.5

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

People v. Walker (1991) 54 Cal.3d 1013, 1024–1025 [overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183]

Second Holding:

The three-year prison sentence originally imposed is more severe than the agreed-upon sentence of two years in county jail with one year of mandatory supervision. There is a qualitative difference between an inmate in actual prison custody and a felon released in the community under mandatory supervision.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 935 [length of jail term is significant]

People v. Silva (2016) 247 Cal.App.4th 578, 591–592 [30-day jail sentence consecutive to agreed-upon sentence allowed defendant to withdraw plea]

Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, 1037

Third Holding:

The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. Thus, action by the trial court while an appeal is pending is null and void. The purported changes to the sentence that were made while appeals in this matter were pending are thus void.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473

Fourth Holding:

While an appeal is pending, a trial court has inherent power to correct clerical errors in its records, including correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here the court had the power to correct the erroneous section designation in the original abstract. But it did not have the power to change the sentence while the appeals were pending. Under such circumstances, the proper procedure is to reverse the void judgment rather than dismiss the appeal.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474

Discretion, Sentencing

Case: 000441

Posted on by Gary McCurdy

Error and/or relief

The gang conviction in count 6 is based on the same felonious conduct that comprises the murder conviction in count 1. Accordingly, the trial court was required to stay execution of one of these sentences. We vacate the defendant’s sentence and remand for resentencing. The trial court shall exercise its discretion under section 654 to determine which of the sentences for counts 1 and 6 must be stayed.

First Holding:

Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Second Holding:

Under amended section 654 (AB 518 (2021–2022 Reg. Sess.)) (Stats. 2021, ch. 441), the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer one. Here, although the lower court’s decision to run the sentence in count 6 concurrently strongly suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine which sentence must be stayed.

Authority:

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

Sentencing

Case: 000440

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing concurrent sentences on counts 3 and 4. The sentences on counts 3 and 4 must be stayed under section 654.

First Holding:

The sentences on counts 3 and 4 must be stayed under section 654 because these counts were based on the same acts for which sentence was imposed on counts 1 and 2. Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. Under section 654(a), 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.

An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. If a defendant has two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. Section 654 does not, however, preclude multiple punishment when the defendant’s violent act injures different victims.

Authority:

PC 654

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Duty of the court, Sentencing

Case: 000439

Posted on by Gary McCurdy

Error and/or relief

Relief is granted on this petition for writ of habeas corpus. The defendant is entitled to full resentencing under section 1172.75. In August 2022, pursuant to (now) section 1172.75, the trial court entered an order modifying petitioner’s judgment by dismissing the enhancements imposed pursuant to section 667.5(b). It is undisputed that petitioner was not notified of the court’s intent to modify the judgment, was not appointed counsel, was not notified of any court proceedings related to modification of the judgment, and did not appear at any such proceedings. It is also undisputed that the court did not conduct a full resentencing.

First Holding:

Effective January 1, 2022, what is now section 1172.75 declared invalid most sentence enhancements imposed pursuant to section 667.5(b). Once the Department of Corrections and Rehabilitation (CDCR) identifies a defendant serving a term for a judgment including a qualifying section 667.5(b) enhancement, the trial court is required to recall the sentence and resentence the defendant. The court is also required to appoint counsel.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. Section 1172.75 creates a presumption that the resentencing shall result in a lesser sentence than the one originally imposed. It expressly requires the court to consider postconviction factors, including evidence that reflects that circumstances have changed since the original sentencing, and it guides the trial court in selecting among the lower, middle, and upper term on each count. In this case, the defendant was entitled to, but did not receive, a full resentencing under the terms of section 1172.75, including the application of any other changes in law that reduce sentences or provide for judicial discretion. It was proper for him to seek relief by way of petition for writ of habeas corpus under the circumstances in this case.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Rogers (2025) 108 Cal.App.5th 340, 359–361

In re Reno (2012) 55 Cal.4th 428, 449–450 [Frequently used to challenge criminal convictions already affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her freedom, such as a prisoner, to bring before a court evidence from outside the trial or appellate record, and often represents a prisoner’s last chance to obtain judicial review. A writ of habeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate]