Tag Archives: Sentencing

Abstracts and Minutes, Sentencing

Case 000956

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing two concurrent sentences for firearm convictions based on the same, single act of possessing a firearm. We remand for resentencing.

First Holding:

The trial court imposed a middle term of four years for possession of a firearm. It then imposed concurrent sentences for carrying a loaded firearm and carrying a concealed firearm in a vehicle, all committed while having a prior felony conviction.

This sentence violates section 654’s prohibition of multiple punishment for a single act or omission, or an indivisible course of conduct. All three convictions were based on a single possession or carrying of a single firearm on a single occasion and may be punished only once under section 654.

Authority:

PEN 654(a) [an act punishable in different ways by different provisions of law shall not be punished under more than one provision]

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

People v. Jones (2012) 54 Cal.4th 350, 357

Second Holding:

That the concurrent sentences imposed for counts 7 and 8 are served simultaneously with the sentence for count 6 is inconsequential. A concurrent sentence is still a punishment subject to section 654. In these circumstances, the trial court was required to impose one sentence and to stay the execution of the duplicative sentence.

Authority:

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380

Third Holding:

(Gary note: The opinion did not describe count 3 or what the oral pronouncement of sentence was for that count, but in the opinion’s disposition paragraph, the court included the following sentence: “The clerk of the superior court is also directed to correct the abstract of judgment to reflect the orally pronounced sentence on count 3.”

(That is the only reference to the abstract in the opinion. I include this as a “holding” because it represents yet another instance of where an abstract of judgment was apparently incorrect. The cases I have listed below are some of several cases that the court could have chosen to cite as authority for its order.

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

Fines and fees, Sentencing

Case 000955

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have stricken the restitution fine, as it was more than 10 years old.

Holding:

Effective January 1, 2025, AB 1186 amended section 1465.9 to add subdivision (d), providing that any portion of a restitution fine under section 1465.9 not paid within 10 years must be vacated. Upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated.

Authority:

PEN 1465.9(d)

In re Mattison (2025) 115 Cal.App.5th 1062, 1066

Duty of the court, Elements of crime, Juveniles, Sentencing

Case 000953

Posted on by Gary McCurdy

Error and/or relief

The court erred in setting the maximum confinement time for the minor to life imprisonment, because it did not make a finding that the attempted murder was willful, deliberate, and premeditated.

First Holding:

When committing a juvenile to a secure youth treatment facility as in the case here, the court must set a maximum term of confinement. The maximum term of confinement shall not exceed the middle term of imprisonment that can be imposed upon an adult convicted of the same offense or offenses.

Authority:

WIC 975(c)(1)

Second Holding:

Attempted murder is generally punishable by five, seven or nine years in state prison. However, if the attempted murder is willful, deliberate, and premeditated, and that fact is charged in the accusatory pleading and found true by the trier of fact, the crime is punishable by life in prison with the possibility of parole.

Authority:

PEN 664(a), 190

Third Holding:

A reading of the transcript of the proceedings reveal that neither the prosecution nor the court believed that the charge contained the language invoking a life term for the conviction of attempted murder. The trial court’s statement that “the intent to kill is clear” is insufficient because the mere intent to kill is not the equivalent of a deliberate and premeditated intent to kill.

The trial court never found, whether expressly or impliedly, that the attempted murder was willful, deliberate, and premeditated. The seven-year-to-life maximum term of confinement for count 1 is therefore unauthorized. Accordingly, we reverse and remand for a new disposition hearing.

(Gary note: The court did not cite additional authority for its reversal and remand order; likely, none was necessary. The court did cite Boatman, but that was on the point that intent to kill is not the equivalent of deliberated and premeditated intent to kill. Much of the court’s reasoning consisted of analysis of the comments at the disposition hearing, where the prosecution and court seemed to be under the impression that the charging document did not invoke the life term provisions, even though, in fact, the charging document did.

(But the oral pronouncements of the court strongly imply that it specifically did not conclude that the act was “willful, deliberate, and premeditated,” and that an underlying crime was planned, but the shooting was not. Hence, even though the charging document alleged it, the life term cannot be imposed/set as a maximum in the absence of a true finding on the necessary elements.)

Authority:

People v. Boatman (2013) 221 Cal.App.4th 1253, 1264

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000952

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in pronouncing judgment regarding custody credits. Though the court announced the actual and conduct amounts separately and correctly, the court announced an incorrect total of the two. We modify the judgment accordingly.

Holding:

the trial court awarded the defendant 98 days of actual credit and 98 days of conduct credit (sec. 4019), but made a mathematical error in announcing the defendant’s total credit as 180 days rather than 196 days. The abstract of judgment already reflects the proper total and need not be corrected, but we modify the judgment to reflect the correct total.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [judgment is the trial court’s oral pronouncement of judgment; an abstract of judgment is not the judgment of conviction and does not control if different from the trial court’s oral pronouncement of judgment]

Amelioration, Appellate Principles, Sentencing, Standard of review, Vicarious liability

Case 000951

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, we reconsider our earlier decision denying relief on the defendant’s appeal from the denial of his petition for recall of sentence under section 1172.6. We reverse the lower court’s denial and remand for the court to conduct a full evidentiary hearing under section 1172.6.

(Gary note: The Court of Appeal earlier had concluded that the defendant is not eligible to petition for relief under section 1172.6, because he could have raised the issue on direct appeal. The Supreme Court granted review and held it pending its opinion in People v. Lopez. Once that was decided–holding in a case with a similar procedural posture that Lopez was not ineligible despite not raising the issue on his direct appeal–it returned this case to the Court of Appeal for further proceedings consistent with the Lopez decision.)

First Holding:

In 2018, the Legislature passed SB 1437, effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

SB 1437 also added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437.

SB 775 (2021–2022 Reg. Sess.) amended section 1172.6 further to expand eligibility for resentencing to persons convicted of murder pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 724

Second Holding:

We review the trial court’s decision at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Third Holding:

The jury instructions permitted the jury to find the defendant guilty by imputing malice to him as an accomplice rather than finding that he shared the principal’s intent and therefore independently harbored malice. The ambiguous instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime, and the aider and abettor of implied malice murder need not intend the commission of the crime of murder. It conveyed that the defendant need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.

(Gary note: Presumably because the appellate court had gone through the review of the case law in the proceedings before it went up to the Supreme Court and came back down, there was little full discussion of the problem with the instruction. Powell, relied on by the court, does address the aiding and abetting issue, and Reyes (whose citation I listed below but was not cited in this opinion) approved the reasoning of Powell that, for aiding and abetting murder liability, the relevant act is the act that proximately causes death.

(The court remanded to the lower court to hold an evidentiary hearing, at which it will be determined whether the defendant can be found guilty under current law.)

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714

People v. Lopez (2026) 19 Cal.5th 639, 658-668

People v. Reyes (2023) 14 Cal.5th 981, 990-992