Tag Archives: Unauthorized sentence

Abstracts and Minutes, Sentencing

Case 000062

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.

First Holding:

A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.

Authority:

PEN 1170.1(e)

People v. Anderson (2020) 9 Cal.5th 946, 953

People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6

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

Second Holding:

It is improper to stay the punishment for an enhancement, as opposed to striking it.

Authority:

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

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Third Holding:

Because the court clearly indicated it would not impose these enhancements, remand is not required.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431

Fourth Holding:

The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

Sentencing

Case 000060

Posted on by Gary McCurdy

Error and/or relief

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.

First Holding:

The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months.

Authority:

Pen. Code, sec. 1170.1(a)

People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months]

Second Holding:

The court may correct unauthorized sentence at any time. [GARY NOTE: This holding may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review at least the three cases that I cite below Scott–not cited in this unpublished opinion–and the cases they cite if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Authority:

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

People v. Singleton (2025) 113 Cal.App.5th 783

People v. Boyd (2024) 103 Cal.App. 56

People v. Codinha (2023) 92 Cal.App.5th 976

Third Holding:

Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [on the principle that the oral pronouncement normally controls]

Sentencing

Case 000030

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed an unauthorized sentence in count 1 when it sentenced the defendant as a third-striker, because assault by means likely to produce great bodily injury is not a serious or violent felony.

First Holding:

Assault by means likely to produce great bodily injury is not a serious or violent felony.

Authority:

People v. Leng (1999) 71 Cal.App.4th 1, 9 [A violation of former section 245(a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant personally inflicted great bodily injury on any person, other than an accomplice, or personally used a firearm or a dangerous or deadly weapon]

Second Holding:

When a defendant with two or more convictions for serious and/or violent felonies within the meaning of the Three Strikes law is convicted of a non-strike offense, the defendant must be sentenced as a second-striker with respect to that offense.

Authority:

People v. Johnson (2015) 61 Cal.4th 674

People v. Lynn (2015) 242 Cal.App.4th 594

Third Holding:

Because the sentence was unauthorized, we remand the matter to the trial court for a full resentencing hearing.

Authority:

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