Tag Archives: Sentencing

Abstracts and Minutes, Fines and fees, Sentencing

Case 000864Abstract of judgment or minute order, Fines and fees, Restitution fine, Sentencing,

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the restitution fine must be stricken because it is more than 10 years old.

Further, the abstract of judgment must be correct to reflect that the sentence was 68 years to life, not the 69 years to life shown in the abstract.

First Holding:

AB 1186 (2023-2024 Reg. Sess.) amended section 1465.9 to add subdivision (d), which provides that 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.

By its plain terms, the subdivision applies retroactively to make any unpaid portion of the restitution fine unenforceable and uncollectible upon the expiration of the 10-year time period, and also mandates that any portion of a judgment imposing such a fine be vacated. We will modify the judgment to vacate the restitution fine.

Authority:

PEN 1465.9(d)

People v. Greeley (2021) 70 Cal.App.5th 609, 626 [ameliorative changes of AB 1869 (2019-2020 Reg. Sess.), which enacted section 1465.9, applied retroactively; the subdivisions enacted by that bill have materially identical language to subdivision (d)]

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601, review granted (on a different issues) Mar. 11, 2026, S295038 [vacating restitution fine older than 10 years where the fine was reimposed at resentencing]

Second Holding:

The abstract of judgment does not accurately reflect the oral pronouncement of judgment. The trial court imposed an indeterminate term of 68 years to life for count 1. But the abstract of judgment incorrectly shows an indeterminate term of 69 years to life.

Because we will direct the trial court to prepare an amended abstract of judgment reflecting the modified judgment, we will also direct that the amended abstract of judgment accurately reflect the term imposed for count 1.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385 [the oral pronouncement of judgment controls where there is a discrepancy between it and the abstract of judgment]

Appellate Principles, Discretion, Duty of the court, Plea bargains, Sentencing

Case 000863

Posted on by Gary McCurdy

Error and/or relief

We modify the sentence by vacating the trial court’s stay of punishment for the firearm enhancement and instead strike the punishment.

First Holding:

After taking the defendant’s admission to the firearm enhancement, the trial court did not impose additional punishment for it. Instead, the trial court incorrectly imposed and stayed the low term of three years for the firearm enhancement. Generally, a court has no discretion to stay an enhancement.

The court must either impose or strike the enhancement. Under section 1385(b)(1), the court may also strike the punishment, instead of the enhancement itself. The trial court’s stay of the enhancement resulted in an unauthorized sentence.

Authority:

PEN 1385(b)(1)

People v. Haykel (2002) 96 Cal.App.4th 146, 151

People v. Lopez (2004) 119 Cal.App.4th 355, 364-365

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123

People v. Bradley (1998) 64 Cal.App.4th 386, 391

Second Holding:

A resentencing hearing is unnecessary because the correction does not require resolving a factual dispute or exercising discretion. The trial court did not intend to dismiss the firearm enhancement because an admission to it was required by the plea agreement. Nor did the trial court intend to impose additional punishment for the firearm enhancement.

The record clearly supports the court’s intention to strike the punishment for the enhancement had it known a stay was not possible. We accordingly modify the sentence by vacating the trial court’s order that imposed and stayed the three-year term for the firearm enhancement as to count 1. We further modify the sentence to comply with the terms of the plea agreement by striking the punishment for the firearm enhancement pursuant to section 1385(b)(1).

Authority:

PEN 1260

People v. Vieira (2005) 35 Cal.4th 264, 294

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Juveniles, Probation Parole PRCS, Sentencing, Statutory interpretation

Case 000862

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect maximum term for the juvenile, and one of the probation conditions was overbroad.

First Holding:

The court declared that the maximum confinement time for the minor was 16 years, when it fact the maximum was 10 years.

Welfare and Institutions Code section 726(d)(1) provides that if the minor is removed from the physical custody of the minor’s parent or guardian as the result of an order of wardship made pursuant to section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the middle term of imprisonment that could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.

Authority:

WIC 726(d)(1)

Second Holding:

Section 726 defines the maximum term of imprisonment as the middle of the three time periods set forth in section 1170(a)(3) of the Penal Code, plus enhancements.

To the extent section 726 is ambiguous, we think it logical that the method for selecting the term for the underlying offense should apply in selecting the term for an enhancement.

Here, the middle term for the underlying offense is six years, and the middle term for the enhancement is four years, for a total of ten years.

Authority:

WIC 726(d)(2)

In re George M. (1993) 14 Cal.App.4th 376, 381 [interpreting prior version of section 726]

Third Holding:

The juvenile court ordered a total commitment of in terms of a number of days that exceed even the 16-year maximum confinement time in the court’s minute order. Rather than expressing the commitment in days, we will modify the disposition order such that appellant’s total commitment is for the maximum confinement period of 10 years.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 [remand unnecessary where maximum sentence had been imposed]

Fourth Holding:

Appellant’s probation conditions included the following: (1) “You shall not possess, nor shall you knowingly associate with anyone who possesses, any weapon, including, but not limited to firearms, pellet or BB guns, chemical weapons, a replica of any weapon, ammunition, or C02 canisters. You shall not remain in any vehicle where you know anyone has such a weapon or ammunition”; and (2) “You shall not associate with any person who is using or trafficking in any controlled substance, including marijuana.”

The juvenile court has wide discretion to select appropriate conditions, but a probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. While we generally review the imposition of probation conditions for abuse of discretion, we review constitutional challenges to probation conditions de novo.

The two conditions at issue are overbroad because they encompass people who legally possess weapons and use controlled substances. We will modify these conditions to specify that they apply only to illegal possession or use. While the word “trafficking” seems to imply illegal conduct, to remove any doubt, we will also specify that the trafficking must be illegal. The condition prohibiting association with those using or trafficking in controlled substances lacks a knowledge requirement. Modification to impose an explicit knowledge requirement is necessary to render the condition constitutional.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

People v. Appleton (2016) 245 Cal.App.4th 717, 723

In re Sheena K. (2007) 40 Cal.4th 875, 892

People v. Garcia (1993) 19 Cal.App.4th 97, 101-102

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]

Amelioration, Duty of the court, Fines and fees, Sentencing

Case 000856

Posted on by Gary McCurdy

Error and/or relief

This is an appeal from a hearing on the petition for resentencing under section 1172.75. Because the trial court did not orally pronounce sentence on defendant’s conviction, impose the mandatory parole revocation fine, or calculate credits for time served, we remand the matter for full resentencing. On remand, the trial court is directed to orally impose judgment; determine what the amount of the restitution fine would have been so it can impose, then stay, the parole revocation fine in a proper amount, and calculate credit for time served.

First Holding:

Our review of the record reveals the court did not orally pronounce judgment. Accordingly, we must remand the matter for a full resentencing. The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand, as is the failure to impose a parole revocation fine required by section 1202.45. Because an unauthorized sentence is a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal, we raise the issue even though neither party has addressed it.

Authority:

People v. Price (1986) 184 Cal.App.3d 1405, 1411 fn. 6

People v. Terrell (1999) 69 Cal.App.4th 1246, 1255

People v. Anderson (2010) 50 Cal.4th 19, 26

Second Holding:

Because the trial court’s recall of defendant’s sentence pursuant to section 1172.75(c) vacated that sentence, the trial court was required to conduct a full resentencing. While the court struck defendant’s now-invalid section 667.5(b) enhancements and ruled on his Romero motion, it did not orally pronounce judgment on defendant for his conviction for possessing cocaine. Nor did it orally reimpose the restitution fine or parole revocation fine or calculate actual custody credits. Because the trial court’s failure to orally pronounce judgment resulted in an unauthorized sentence, we remand for a full resentencing.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 360-361

Third Holding:

While the term of imprisonment, parole revocation fine, and actual custody credits are nevertheless listed in the minute order and abstract of judgment, the oral pronouncement of judgment controls over both.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Fourth Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976, 994

Fifth Holding:

Add Section 1465.9 bars reimposition of the restitution fine upon defendant. Because the restitution fine was originally imposed on defendant more than 10 years ago, the fine is uncollectable and unenforceable by operation of law.
blurb here

Authority:

PEN 1465.9(d)

People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 332

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart sec. 1465.9’s 10-year clock], review granted on a different issue Mar. 11, 2026, S295038

Sixth Holding:

Although section 1465.9(d) imposed a 10-year limit on the enforcement and collection of the restitution fine, it did not provide relief with respect to the parole revocation fine. Under section 1202.45 and Kopp that fine remains mandatory and must be set in the same amount as the court would have set for defendant’s restitution fine even though the restitution fine itself may no longer be reimposed.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Seventh Holding:

Finally, at resentencing, the trial court is required to credit the defendant with all actual days he had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37