Tag Archives: Sentencing

Case 001105

Error and/or relief

The court erred in staying the greater firearm enhancement under section 654 in order to impose a lesser firearm enhancement, rather than striking it under section 1385.

First Holding:

After considering the defendant’s youth as a mitigating factor, the court chose to sentence the defendant on the firearm enhancement under section 12022.5(a) (for 10 years) instead of under section 12022.53(c) (punishable by 20 years). The court purported to stay the 12022.53(c) enhancement under section 654.

Authority:

PEN 12022.5(a)

PEN 12022.53(c)

Second Holding:

Section 654(a) provides 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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

Authority:

PEN 654

Third Holding:

In general, we review for abuse of discretion the trial court’s decision not to strike a sentence enhancement under section 1385(a). However, the trial court purported to stay the 20-year enhancement pursuant to section 654. Under Corpening, at step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. When those facts are undisputed—as they are here—the application of section 654 raises a question of law we review de novo.

In Gonzales, the Supreme Court found that section 654 did not apply to whether the trial court properly stayed the punishment for the firearm enhancement at issue in that case. Although the trial court correctly stayed all of the prohibited firearm enhancements, it incorrectly issued those stays under section 654, which applies only to offenses punishable in different ways, not to prohibited enhancements committed in the commission of an unstayed offense.

Thus, the issue we resolve is one of statutory interpretation regarding the trial court’s interpretation of its authority to impose, stay, or strike firearm enhancements under sections 12022.53(c), 12022.5(a), and 1385.

Authority:

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

People v. Corpening (2016) 2 Cal.5th 307, 312

People v. Gonzalez (2008) 43 Cal.4th 1118, 1123, fn. 5

Fourth Holding:

The court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654. Under the unauthorized sentence rule, a party does not forfeit the right to argue that a sentence is unlawful by failing to object in the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

People v. King (2022) 77 Cal.App.5th 629, 635

Fifth Holding:

The court may, in the interest of justice pursuant to section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by section 12022.53.

(Gary note: The appellate court cited several passages from section 12022.53 that reflect that a LESSER enhancement may be stayed (rather than stricken) when both the lesser and the greater are found true, as only one can be imposed. It reviewed the language the trial court used in sentencing the defendant to the lesser firearm enhancement, and concluded that the intention of the trial court could only be carried out by striking the greater enhancement under section 1385, which is permitted by section 12022.53(h).)

Authority:

PEN 12022.53(h)

PEN 1385

Case 001104

Error and/or relief

The abstract of judgment reflect a restitution fine of $4800 and a suspended parole restitution fine of $4800, neither of which was imposed by the court.

Holding:

The trial court did not orally reimpose any fines or fees. However, the trial court clerk erred in including in the abstract of judgment a $4,800 restitution fine and a $4,800 parole revocation fine in that case. These items must be stricken as not comporting with the oral pronouncement of judgment.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 388-389

Case 001103

Error and/or relief

The abstract of judgment does not accurately reflect the defendant’s sentence and must be corrected.

Holding:

The abstract of judgment transposes the sentences for the underlying crime and the enhancement, and must be corrected. If the minutes or abstract of judgment fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts.

Courts may correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Humphrey (2020) 44 Cal.App.5th 371, 379

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

Case 001102

Error and/or relief

The trial court erred when it found the defendant unsuitable for Proposition 36 rehabilitation when it had not ordered and considered an evaluation by a drug addiction expert as required by Penal Code section 11395,(d)(1)(B).

First Holding:

Section 11395, known as the “Treatment-Mandated Felony Act,” was enacted as part of Proposition 36, which was approved by voters in November 2024. The statute gives repeat hard drug possession offenders the option of participating in drug and mental health treatment.

The individual must plead guilty or no contest to again possessing a hard drug, admit the alleged prior qualifying convictions, waive time for sentencing or judgment, and agree to participate in treatment.

If he or she successfully completes treatment, the defendant’s plea shall not constitute a conviction for any purpose. Such individuals are not to be sentenced to jail or prison unless a court determines that the person is not eligible or suitable for treatment.

Authority:

HSC 11395

Second Holding:

The statute further states that, upon or subsequent to arraignment for a violation of the section, and at the request or with the consent of the defendant or their attorney, the court shall order a drug addiction expert to conduct a substance abuse and mental health evaluation of the defendant. The evaluation may be based on an interview of the defendant or others with relevant knowledge, and can include “medical records, criminal history, prior treatment history, and records pertaining to the current offense. The expert shall submit a report of the evaluation to the court and the parties.

Authority:

HSC 11395(d)(1)(B)

Third Holding:

We review de novo the trial court’s interpretation of the statute as allowing it to find defendant unsuitable for treatment without first obtaining the drug addiction expert report. Our task is to determine the electorate’s intent so as to effectuate the law’s purpose. We turn first to the language of the provision, giving the words their ordinary meaning.

We construe the language in the context of the statute as a whole and the overall statutory scheme in light of the electorate’s intent. If the statutory language is unambiguous, the plain meaning controls and consideration of extrinsic sources to determine the electorate’s intent is unnecessary.

Authority:

People v. Fouse (2024) 98 Cal.App.5th 1131, 1145

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901 [a reviewing court applies the same principles that govern statutory construction when interpreting a voter initiative]

Smith v. Superior Court (2006) 39 Cal.4th 77, 83

Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919

Fourth Holding:

Given section 11395’s clear language, we need not look beyond the statute itself to discern the electorate’s intent. As the statute makes clear, immediately upon or after arraignment for violating the statute, and either at the request or with the consent of the defendant or their attorney, the trial court “shall” order a drug addiction expert evaluation, and that report “shall” be submitted to the court and the parties. While the trial court has the discretion ultimately to decide that a defendant is unsuitable for treatment once the court considers the drug addiction expert’s evaluation, the expert’s evaluation must come first.

The trial court abused its discretion when it decided, notwithstanding the statutory provisions, that defendant was unsuitable for treatment before obtaining the necessary report.

Authority:

HSC 11395(d)(1)(B)

Case 001100

Error and/or relief

The abstract of judgment contains a clerical error on the sentence and must be corrected.

Holding:

The transcript of the sentencing hearing and the corresponding minute order reflect that the court imposed a total indeterminate term of 152 years to life, but the abstract of judgment identifies the total term as 156 years to life. Any discrepancy between the judgment as orally pronounced and as recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of clerical error. Because we may order the correction of such clerical errors, we will direct the trial court to modify the abstract of judgment.

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855

People v. Mitchell (2001) 26 Cal.4th 181, 186-187