Tag Archives: Sentencing

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]

Abstracts and Minutes, Sentencing

Case: 000438

Posted on by Gary McCurdy

Error and/or relief

We agree with the defendant that the trial court erred in calculating his sentence, and we therefore remand for a full resentencing. At that resentencing, the trial court may revisit the aggravating factors, so we decline to decide today the defendant’s challenge to one aggravating factor. We likewise decline to decide whether the victim’s mother and sister were properly named as protected persons on the criminal protective order, as the trial court must also determine the scope of the protective order in fully resentencing the defendant.

There were also errors in the minute order and the abstract of judgment because they reflected imposition of multiple fines that were not imposed in the court’s oral pronouncement.

First Holding:

It was error for the court to sentence the defendant under section 667.71 and also sentence him to a determine term. Section 667.71, also known as the “Two Strikes” law, provides that a habitual sexual offender shall be punished by imprisonment in the state prison for 25 years to life. A habitual sexual offender is defined as a person who has been previously convicted of one or more of certain specified offenses and who is convicted in the present proceeding of one of those offenses. Among the specified offenses is lewd or lascivious act in violation of section 288(a).

The Two Strikes law is an alternative sentencing scheme for specified sexual offenses. Unlike a sentence enhancement, which imposes an additional term of imprisonment added to the base term, the Two Strikes law sets forth an alternate penalty for the underlying felony itself when the defendant has satisfied specified conditions. In other words, the trial court may either sentence the defendant under the penalty specified in the underlying statute or based on the Two Strikes law, but not both.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 355, 360

People v. Murphy (2001) 25 Cal.4th 136, 155

People v. Acosta (2002) 29 Cal.4th 105, 118 [discussing One Strike law]

Second Holding:

Because we find the trial court’s sentence as to count 2 is unauthorized, we remand for a full resentencing as to all counts to allow the trial court to exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

Third Holding:

As there were errors in the minute order and abstract of judgment listing multiple fines that were not imposed in the oral pronouncement of judgment, we trust the court’s minutes and abstract of judgment will track the court’s oral pronouncement on remand.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 389 [Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it]

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000437

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates a restitution fine of $3,400 to be paid, rather than the $2,400 imposed by the trial court. It must be corrected.

Holding:

[GARY NOTE: The court cited no authority for its order directing the trial court to correct the abstract of judgment–likely because the legal principle is well-established and seems obvious–but there is plenty of authority, which I cite below.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [holding reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

People v. Jones (2012) 54 Cal.4th 1, 89

People v. Baker (2021) 10 Cal.5th 1044, 1109 [court has inherent power to correct clerical errors in abstract of judgment]

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000436

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment is incorrect in that it indicates that the trial court imposed a restitution fund fine of $330 pursuant to section 1202.4 but at sentencing the trial court stated that the amount of that fine was $300. It must be corrected.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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