Tag Archives: Unauthorized sentence

Elements of crime, Sentencing, Statutory interpretation

Case 001150

Posted on by Gary McCurdy

Error and/or relief

The court had no jurisdiction to issue a post-sentence protective order on a person who was neither a victim nor a percipient witness.

First Holding:

Although the defendant did not object to the protective orders, sentences entered in excess of a trial court’s jurisdiction may be challenged for the first time on appeal. We therefore address the defendant’s objection to the protective orders issued under section 136.2.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Second Holding:

Section 136.2 does not authorize post-sentence protective orders based on his conviction for assault with a deadly weapon. Section 136.2(a) provides that, upon a good cause belief that a victim or witness was harmed, intimidated, or dissuaded, a court with jurisdiction over a criminal matter may issue an order restraining the defendant from, among other things, communicating with a specified witness or a victim except through an attorney under reasonable restrictions that the court may impose.

Section 136.2(i) also provides that when a criminal defendant has been convicted of certain specified offenses, at the time of sentencing a trial court shall consider issuing an order restraining the defendant from any contact with a victim that may extend up to 10 years. Subdivision (i)(2) also permits similar orders concerning percipient witnesses that have been harassed.

Authority:

PEN 136.2

Third Holding:

Prior to 2011, section 136.2 permitted protective orders only during the pendency of the criminal proceedings and did not authorize such orders after the defendant was sentenced.

Authority:

People v. Stone (2004) 123 Cal.App.4th 153, 159

People v. Ponce (2009) 173 Cal.App.4th 378, 382

People v. Selga (2008) 162 Cal.App.4th 113, 118

Fourth Holding:

The legislative history reveals that the Legislature added subdivision (i) to section 136.2 in express reliance on the decisions holding that subdivision (a) does not authorize post-sentencing restraining orders. Thus, it is clear that the Legislature understood that subdivision (a) of section 136.2 does not authorize post-sentence protective orders and that the section authorizes such orders only under subdivision (i).

Authority:

Sen. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) Feb. 18, 2011, p. 6

Assem. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) as amended May 2, 2011, p. 2

Fifth Holding:

Section 136.2(i) authorizes post-sentence protective orders when a criminal defendant has been convicted of a crime involving domestic violence, as defined in section 13700 or in section 6211 of the Family Code; a violation of section 236.1(a), (b), or (c) prohibiting human trafficking; section 261; section 261.5; former section 262; section 266h(a); section 266i(a); a violation of section 186.22; or a crime that requires the defendant to register pursuant to section 290(c).

The defendant’s conviction does not fall within any of those categories, and the protective order was unauthorized. The protective orders against the defendant are stricken.

Authority:

PEN 136.2(i)

Fines and fees, Sentencing

Case 001147

Posted on by Gary McCurdy

Error and/or relief

The court erred in following the probation officer’s report and setting the restitution fine under section 1202.4(b) and the corresponding parole revocation restitution fine (under 1202.45) in the amount of $25,000. We modify the restitution fine and the parole revocation fine to the maximum permitted by law, $10,000.

First Holding:

Section 1202.4(b) states that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. If the person is convicted of a felony, the fine shall not be less than $300 and not more than $10,000 Thus, the maximum restitution fine that may be imposed in a criminal prosecution is $10,000, regardless of the number of victims or counts involved.

Authority:

PEN 1202.4(b)

People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534

Second Holding:

The parole revocation restitution fine in section 1202.45(a) is required to be in the same amount as that imposed pursuant to section 1202.4(b).

Authority:

PEN 1202.45(a)

People v. Smith (2001) 24 Cal.4th 849, 853 [Under section 1202.45, a trial court has no choice and must impose a parole revocation restitution fine equal to the restitution fine whenever the sentence includes a period of parole.]

Sentencing

Case 001137

Posted on by Gary McCurdy

Error and/or relief

When section 654 applies, the term for the stayed sentence must be full term, not one-third the middle term. Remanded for the court to impose the full term on the stayed count.

Holding:

Under section 654, the trial court imposed and stayed eight months one of the counts, calculated as one-third the middle term of two years. The term imposed and stayed under section 654 must be a full term. This error resulted in an unauthorized sentence.

Authority:

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197–1198

Amelioration, Elements of crime, Sentencing

Case 001117

Posted on by Gary McCurdy

Error and/or relief

Following the second of defendant’s two previous appeals, the matter was remanded to give the prosecution the opportunity to retry the gang enhancements. The prosecution declined to retry the gang enhancements. At sentencing, the court imposed previously stayed firearms enhancements that were tethered to the gang enhancements.

This was error. Once the prosecution declined to retry the gang enhancements, the firearm enhancements could no longer be imposed.

First Holding:

We observe that on remand the court resentenced the defendant to a higher aggregate term than both the original and second sentences. We note that although in some cases imposing a greater sentence to correct an unauthorized sentence is permissible, imposing a greater sentence after a successful appeal may be an excess of jurisdiction. Here, the issue is likely moot based on the disposition herein.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1

People v. Trammel (2023) 97 Cal.App.5th 415

Second Holding:

The trial court’s sentence on the most recent remand, imposing the previously-stayed gang-related firearms enhancements, was unauthorized. The firearms enhancements were contingent on the vacated gang enhancements. Once the prosecution declined to retry the gang enhancements, the allegations found true by the jury under section 12022.53(d) and (e)(1), having been reversed, could not be imposed.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 746

Jurisdiction, Sentencing, Standard of review, Statutory interpretation

Case 001105

Posted on by Gary McCurdy

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