Tag Archives: Sentencing

Abstracts and Minutes, Equal protection, Fines and fees, Sentencing

Case: 000427

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for limited resentencing proceedings concerning the imposition of mandatory ancillary costs under Penal Code section 1465.8 and Government Code section 70373, both of which were omitted from the trial court’s original oral sentencing pronouncements.

First Holding:

The sentencing hearing transcript shows the trial court only imposed restitution and parole revocation fines, both in the amount of $500. The court purported to waive all fees and other fines without providing an explanation. Yet, the minute order and the indeterminate abstract of judgment indicate an imposed $200 court security fee pursuant to Penal Code section 1465.8, as well as a $150 criminal conviction assessment pursuant to Government Code section 70373.

The court security fee and the criminal conviction assessment are properly characterized as ancillary costs. That is, they are funding mechanisms created by the Legislature to raise funds for court operations and facilities; they are not punitive in nature. Imposition of these ancillary costs is mandatory for every criminal conviction except parking offenses. However, due to a robust fee waiver system in civil cases for the same types of ancillary costs, the unavailability of a fee waiver in criminal cases violates equal protection guarantees. Upon request by a criminal defendant, a trial court must consider a defendant’s inability to pay before imposing a court operations assessment under section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). This includes allowing the parties to present and contest any relevant evidence or argument on the question.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 11, 14-15, 26-27, 30

Second Holding:

[Gary Note: The court sidestepped the issue because it remanded for a Kopp hearing, but oral pronouncements prevail over written orders. The court has the authority to order corrections where the abstract of judgment or minute order does not reflect exactly what the court ordered. Had the court decided to order the correction, there are many cases it could have chosen from as authority. I have set forth a few below. Again, the discrepancy was moot in this case.]

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

Abstracts and Minutes, Sentencing

Case: 000426

Posted on by Gary McCurdy

Error and/or relief

It was error for the jury to convict defendant of counts 1 and 2, which appeared to be based on the same facts. The conviction on count 2 should be stricken. Further, counts 1 and 3 were part of an indivisible course of conduct with the same intent and objective, and section 654 therefor applies. And the abstract of judgment must be amended to reflect the correct count number for one of the counts.

First Holding:

The record shows that defendant was charged with kidnapping for ransom (PC 209(a)) in count 1 and kidnapping (sec. 207(a)) in count 2. The jury acquitted him of counts 1 and 2 as charged and found him guilty of false imprisonment (sec. 237(a)) as a lesser included offense on both counts. During closing argument and again at sentencing, the prosecutor acknowledged that counts 1 and 2 were charged in the alternative and were based on the same facts. Section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. The conviction on count 2 should be stricken.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

Second Holding:

Section 654(a) provides, in pertinent part, 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. It precludes multiple punishments for a single act or indivisible course of conduct.The purpose of section 654 is to prevent multiple punishment for a single act or omission or indivisible course of conduct, even though that act or omission or indivisible course of conduct violates more than one statute and thus constitutes more than one crime.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294-295

People v. Liu (1996) 46 Cal.App.4th 1119, 1135

Third Holding:

It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. But if the defendant acts with multiple criminal objectives that are independent of, and not merely incidental to, each other, he may be punished for separate violations, even though the violations shared common acts or were part of an otherwise indivisible course of conduct. Thus, the principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts. The trial court has broad latitude in determining whether section 654(a) applies in a given case.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136

People v. Garcia (2008) 167 Cal.App.4th 1550, 15

Fourth Holding:

A court’s determination, express or implied, that two crimes were separate, involving separate objectives, under section 654 is a question of fact we review for substantial evidence. We review the evidence in the light most favorable to the judgment and will affirm the court’s sentencing decision if it is supported by substantial evidence.

Authority:

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Fifth Holding:

Gratuitous violence against a helpless and unresisting victim has traditionally been viewed as not incidental to robbery for purposes of section 654. Section 654 cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.

Authority:

People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191

Sixth Holding:

So long as some substantial evidence to support the implied finding exists, there can be no reversal. Where the court made no express findings on the issue, a finding that the crimes were divisible is implicit in the judgment and must be upheld if supported by substantial evidence. Under this standard, the appellate court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Authority:

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1083

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

Seventh Holding:

We note a clerical error. Generally, a clerical error is one inadvertently made. Clerical errors can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. The abstract of judgment for the indeterminate term lists the assault with a deadly weapon as count 5; however, the assault was count 4 and should be listed as such.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 808

In re Candelario (1970) 3 Cal.3d 702, 705

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000425

Posted on by Gary McCurdy

Error and/or relief

Having been sentenced to a term of life without the possibility of parole (LWOP) and an indeterminate sentence of 25 years to life, it was error to impose the parole revocation restitution fine. The abstract of judgment also must be corrected to reflect the custody credits awarded at the sentencing hearing.

First Holding:

Section 1202.45(a), provides that the court shall assess a parole revocation restitution fine in every case where a person is convicted of a crime and his or her sentence includes a period of parole. This parole revocation fine statute, however, does not apply in cases where the defendant is sentenced to LWOP and indeterminate terms. The parole revocation fine shall be stricken.

Authority:

People v. Alvarez (2025) 18 Cal.5th 387, 485–486 [parole revocation fine under sec. 1202.45 inapplicable where sentence was death]

People v. Battle (2011) 198 Cal.App.4th 50, 63 [improper to impose parole revocation fine where the defendant received an indeterminate term of 25 years to life and LWOP]

People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184 [where the defendant is sentenced to LWOP, there can be no parole, and therefore the parole revocation fine was improperly assessed]

People v. Brasure (2008) 42 Cal.4th 1037, 1075 [parole revocation fine proper where the defendant, in addition to being sentenced to death, also sentenced to determinate term]

Second Holding:

The abstract of judgment is incorrect in reflecting the custody credits. The court’s oral pronouncement is correct, and it controls over the abstract of judgment or sentencing minute order. The trial court is directed to issue an amended abstract of judgment that accurately reflects the correct number of days of actual custody credit awarded by the court in its oral pronouncement of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time, and appellate courts with jurisdiction have the power to order correction of abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court]

Sentencing

Case: 000424

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to three additional days of credit for time served.

Holding:

Based on calculations, the defendant was in custody for three days longer than the amount granted by the trial court. As for conduct credit, PC 2933.1 limits the amount of presentence conduct credit to 15% of the actual period of presentence confinement. If the 15% results in a number that includes a partial day, the conduct credit is not rounded up (because that would exceed 15%), and partial days cannot be awarded.

Authority:

PEN 2900.5

PEN 2933.1

People v. Valenti (2016) 243 Cal.App.4th 1140, 1184

People v. Ramos (1996) 50 Cal.App.4th 810, 815–816

Discretion, Sentencing

Case: 000423

Posted on by Gary McCurdy

Error and/or relief

The minor appeals from the juvenile court’s order denying his petition for termination from the sex offender registry. He argues the prosecution failed to meet its burden of proving community safety would be significantly enhanced by requiring his continued registration and the juvenile court abused its discretion in finding otherwise. We agree and reverse the court’s order.

First Holding:

Penal Code section 290.008 sets forth the sex offender registration requirements for juvenile offenders. It requires registration as outlined in the section, unless the duty to register is terminated under section 290.5 or as otherwise provided by law. It provides for tiered periods of registration. A tier one juvenile offender is subject to registration for a minimum of five years; a tier two juvenile offender is subject to registration for a minimum of 10 years.

Authority:

PEN 290.008

Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 380

Second Holding:

It also provides procedures for juvenile offenders to petition the juvenile court to terminate their registration requirement at the expiration of their mandated minimum registration period, pursuant to section 290.5. Section 290.5 provides the procedures for adult offenders to terminate their registration requirement; the procedures are, therefore, the same, and the process begins by filing a petition for termination and serving it on the district attorney. Upon receiving a petition, the district attorney may request a hearing and present evidence regarding whether community safety would be significantly enhanced by requiring continued registration.

Authority:

PEN 290.008

PEN 290.5

Third Holding:

Section 290.5 sets forth seven factors for the court to consider when ruling on the petition. The court may base its determination on declarations, affidavits, police reports, or any other evidence submitted by the parties that is reliable, material, and relevant. If the court denies the petition, it shall set the time period after which the person can petition again for termination, which shall be at least one year from the date of the denial, but not to exceed five years.

Authority:

PEN 290.5

Fourth Holding:

When the prosecution requests a hearing on a petition, it is its burden to produce evidence and to show that requiring continued registration will appreciably increase society’s safety because the defendant is currently likely to reoffend. The trial court’s task when ruling on a petition is to assess whether the prosecution has carried its burden.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433

People v. Franco (2024) 99 Cal.App.5th 184, 192

Fifth Holding:

We evaluate a trial court’s decision whether to grant or deny a petition for removal from the sex offender registry for an abuse of discretion, reviewing any subsidiary factual findings based on disputed facts for substantial evidence and any subsidiary legal findings—including questions of statutory construction—de novo. A trial court abuses its discretion when its factual findings are not supported by the evidence, or its decision is based on an incorrect legal standard.

Authority:

People v. Franco (2024) 99 Cal.App.5th 184, 192

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433

Sixth Holding:

The defendant committed the offenses 20 years earlier when he was only 14. Since then, he had no convictions, albeit a few arrests, the most recent involving being drunk in public. Consistent with the legislation’s purpose to cull from the registration rolls low-risk offenders so that resources could be concentrated on high-risk ones (Sen. 3d reading analysis of Sen. Bill No. 384 (2017-2018 Reg. Sess.) as amended Sept. 8, 2017, pp. 12-13), it was incumbent upon the prosecution to present reasonable, credible, and solid evidence establishing a current risk of reoffense. It did not. Without evidence establishing such risk, the juvenile court abused its discretion in determining that community safety would be significantly enhanced by continued registration. Accordingly, the order of the juvenile court must be reversed.

Authority:

People v. Thai (2023) 90 Cal.App.5th 427, 432, 433, 435