Tag Archives: Sentencing

Case 000722

Error and/or relief

A jury found the defendant guilty of selling cocaine base and possessing cocaine base for sale. Under section 654, it was error to sentence the defendant on each, to run concurrently. The sentence on one of the counts must be stayed.

First Holding:

Section 654 prohibits multiple punishment for the same act or indivisible course of conduct. Before 2022, when a single act or omission was punishable under multiple provisions, the court was required to impose sentence under the provision carrying the longest potential term. Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to afford trial courts discretion to impose punishment under either applicable provision.

Authority:

PEN 654(a)

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

Second Holding:

Multiple punishments violate section 654 because the defendant’s possession of cocaine base for sale and the sale of cocaine base arose from an indivisible course of conduct with a single objective. Under the amended statute, the trial court has discretion to impose the sentence on either count 1 or count 2, including the option of selecting the shorter term.

Authority:

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

Case 000719

Error and/or relief

Although the trial court did not orally impose any fines or fees at sentencing, the minute order and abstract of judgment include a $300 restitution fine, a $300 parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. The abstract of judgment and the minute order must be corrected to reflect the oral pronouncement of judgment.

First Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes and abstract of judgment cannot add anything substantive to the oral pronouncement. The oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. If the clerk includes fines or fees in the minute order or abstract of judgment that were not orally imposed, those fines and/or fees must be stricken from the minute order and abstract.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, 385-390

People v. Rowland (1988) 206 Cal.App.3d 119, 124

Second Holding:

A restitution fine under section 1202.4 need not be imposed if the trial court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Thus, a restitution fine under section 1202.4 is a discretionary sentencing choice. A corresponding parole revocation fine is mandatory only if a restitution fine is imposed. Although the People argue the judgment should be modified to include the omitted fines, they did not object to the omission at sentencing.

Authority:

PEN 1202.4(b)

People v. Tillman (2000) 22 Cal.4th 300, 302, 303

People v. Smith (2001) 24 Cal.4th 849, 853

Third Holding:

The court operations assessment and criminal conviction assessment are both mandatory, and we may address such an omission because the failure to impose them results in an unlawful sentence. The judgment is modified to impose a $40 court operations assessment and a $30 criminal conviction assessment. The trial court is directed to correct the sentencing minute order and abstract of judgment to omit the $300 restitution fine and the $300 parole revocation fine, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Authority:

PEN 1465.8

GOV 70373

People v. Smith (2001) 24 Cal.4th 849, 853

Case 000718

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply. We order the trial court to modify the judgment by striking the parole revocation fine.

Authority:

PEN 1202.45

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183 [When there is no parole eligibility, the fine is clearly not applicable.]

People v. Carr (2010) 190 Cal.App.4th 475, 482, fn. 6

Case 000716

Error and/or relief

Where the defendant has been sentenced to life without the possibility of parole (LWOP), the court cannot impose a parole revocation restitution fine.

Holding:

In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount. Where a defendant has been sentenced to LWOP or death, the section does not apply.

Authority:

PEN 1202.45

People v. Alvarez (2025) 18 Cal.5th 387, 484–486 [striking parole revocation fine where defendant was sentenced to death and indeterminate term]

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1182 [parole revocation fine unwarranted where defendant was sentenced to LWOP and indeterminate term]

Case 000715

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and of being a felon in possession of ammunition. The trial court should have stayed punishment of the ammunition possession count under section 654 and the defendant deserves one more day of custody credit.

First Holding:

The trial court erred in imposing punishments for both counts 2 (felon in possession of a firearm) and 3 (felon in possession of ammunition). The only ammunition was that in the pistol, so possessing the firearm and possessing the ammunition inside were one act within the meaning of section 654. The trial court therefore should have imposed and then stayed the defendant’s sentence on count 3.

There is no indication that the court would exercise its overall sentencing discretion any differently had it stayed sentence on one of the counts. To correct the sentence and avoid the unnecessary expense of producing the defendant for a sentencing hearing that will not change his actual prison time, we exercise our authority to modify the judgment by staying the execution of the defendant’s sentence on count 3.

Authority:

PEN 1260

People v. Wright (2025) 113 Cal.App.5th 832, 846

People v. Lopez (2004) 119 Cal.App.4th 132, 138

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

Second Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271

Third Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. When a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267

People v. Alford (2010) 180 Cal.App.4th 1463, 1466

Fourth Holding:

The defendant relies on the principal that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt. While that is a correct statement of a principle, that principle is inapplicable to the statutory prohibition on double punishment described in section 654.

Section 654 is not a sentencing enhancement. On the contrary, it is a sentencing reduction statute which, therefore, does not implicate the Sixth Amendment prohibition against judicial fact finding to increase criminal sentences.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834

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

People v. Carter (2019) 34 Cal.App.5th 831, 846

Fifth Holding:

A court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. The circumstances justifying departure from the Three Strikes law must be extraordinary, and an abuse of discretion in this regard is even more extraordinary.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 374

People v. Vargas (2014) 59 Cal.4th 635, 641

Sixth Holding:

The defendant is entitled to one additional day of custody credit because the trial court did not award the defendant any credit for the day of sentencing. The abstract of judgment must therefore be amended to reflect that the defendant has two days of custody credits.

(Gary note: The court did not cite any authority for this order, most likely because it seems so obvious. But there is statutory and case authority the credit for time served includes the day of arrest and the day of sentencing, some of which I have provided below.)

Authority:

PEN 2900.5(a)

People v. Cardenas (2015) 239 Cal.App.4th 220, 235-236

People v. Morgain (2009) 177 Cal.App.4th 454, 469 [defendant is entitled to credit for the date of his arrest and the date of sentencing]

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Heard (1993) 18 Cal.App.4th 1025, 1027 [appellant is entitled to credit for both the date of his arrest and date of sentencing]

People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of sentencing counted for presentence custody credits even though it was only partial day]

In re Jackson (1986) 182 Cal.App.3d 439 [a partial day in custody counts as a day in custody]

Seventh Holding:

The defendant did not assert his Second Amendment claims in the trial court. Nonetheless, a defendant may raise a facial constitutional challenge for the first time on appeal, which we independently review.

Authority:

People v. Gomez (2025) 110 Cal.App.5th 419, 437

Eighth Holding:

The defendant’s as-applied constitutional challenge is forfeited. However, we will assess the defendant’s claim that the failure to raise the issue constituted ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

(Gary note: the court went on to conclude that the firearm and ammunition possession charges were not unconstitutional as applied to him. I have not included the detailed discussion as it was basically a recitation of historical treatment of persons who were deemed “disarmed” by their prior conduct.)

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

People v. Hoyt (2020) 8 Cal.5th 892, 958

Ninth Holding:

When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. A court must ascertain whether the new law is relevantly similar to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.

Applying that standard in Anderson, the First District Court of Appeal found that sections 29800(a)(1) and 30305(a)(1) are facially valid under the Second Amendment. Several California courts of appeal have come to the same conclusion. We agree with the reasoning of these cases, and we reject the defendant’s claim that they were wrongly decided. Accordingly, the defendant’s facial challenge fails.

Authority:

United States v. Rahimi (2024) 602 U.S. 680, 681

People v. Anderson (2024) 104 Cal.App.5th 577, 586–600

People v. Richardson (2025) 108 Cal.App.5th 1203, 1212

People v. Gomez (2025) 110 Cal.App.5th 419, 439

People v. Bey (2025) 108 Cal.App.5th 144, 162

Tenth Holding:

The defendant asserts his due process and jury trial rights were violated when the trial court, rather than the jury, determined that counts 2 and 3 involved discrete acts under section 654. The defendant’s claim raises a question of law, which we independently review.

Authority:

People v. Scott (2016) 3 Cal.App.5th 1265, 1271