Tag Archives: Unauthorized sentence

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000257

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.

First Holding:

Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367

Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1

People v. Warren (1940) 16 Cal.2d 103, 112

Second Holding:

Section 654 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. The statute bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.

Authority:

People v. Cowan (2010) 50 Cal.4th 401, 498

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Third Holding:

Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 131

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).

Authority:

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

Sentencing, Standard of review

Case: 000254

Posted on by Gary McCurdy

Error and/or relief

Penal Code section 654 prohibits punishment for both the murder and the burglary during which it occurred. In addition, the defendant is entitled to one more day credit for time served.

First Holding:

Section 654 provides in relevant 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 bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. It has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. If all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.

Authority:

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042–1043

Second Holding:

On appeal, we review factual determinations under the deferential substantial evidence test, viewing the evidence in the light most favorable to the People. We review de novo the legal question of whether section 654 applies.

Authority:

People v. Valli (2010) 187 Cal.App.4th 786, 794

Third Holding:

Burglary consists of entry into a house with the intent to commit a felony. Thus, ordinarily, if the defendant commits both burglary and the underlying intended felony, section 654 will permit punishment for one or the other but not for both. Here, the record reflects that the intent and objective of both the burglary and the murder were the same, and this was the prosecution’s theory of the case at trial. Accordingly, in light of the evidence introduced at trial, the jury instruction on burglary, and the prosecutor’s argument, substantial evidence does not support the trial court’s order to sentence defendant consecutively on these counts. Rather, one of the sentences on counts 1 or 2 should be stayed pursuant to section 654. And, because section 654 provides the court with discretion with regard to which sentence will be stayed, remand is necessary for the court to exercise its discretion in modifying defendant’s sentence.

[GARY NOTE: Don’t ignore the importance of this last statement. While it may be hard to imagine a case in which a judge would sentence on the burglary and stay the sentence for the murder, the judge does have that discretion under section 654. You may have a case where your client may be more sympathetic and the crimes not so divergent in their relative seriousness. It is not inconceivable that you could persuade a judge to impose and execute sentence on the lesser evil committed by your client, staying execution of the sentence on the more serious offense.]

Authority:

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130 [When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes]

Fourth Holding:

Defendant was entitled to one additional day of presentence custody credit because the court failed to include the day of his arrest.

Authority:

PEN 2900.5


People v. Taylor (2004) 119 Cal.App.4th 628, 647


People v. Valdes (2020) 53 Cal.App.5th 953, 955 [the day of arrest counts as a custody credit day]

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000238

Posted on by Gary McCurdy

Error and/or relief

We strike the domestic violence probation fee. The defendant was sentenced to prison.

Holding:

The domestic violation probation fee is imposed only when a defendant is granted probation. It is not applicable when the defendant is sentenced to prison. the unauthorized fee must be stricken.

Authority:

PEN 1203.97(a)(5)

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520

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

Appellate Principles, Sentencing

Case: 000223

Posted on by Gary McCurdy

Error and/or relief

Sentences for eight of his convictions, which the defendant served concurrently with his completed determinate term, should have been stayed under section 654. The court found the balance of the issues forfeited for lack of objection at the trial level.

First Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 751

Second Holding:

In contrast to errors in exercising sentencing discretion, the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3

Third Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission. When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226–1227

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Sentencing

Case: 000216

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed an indeterminate sentence of 50 years to life for the murders, plus a determinate sentence of 23 years, 4 months, which included a one-year term for burglary and a 16-month term for attempted robbery. The terms for the burglary and attempted robbery should have been stayed under section 654. The judgment is modified to stay the terms imposed for burglary and attempted robbery.

Holding:

The terms for the burglary and attempted robbery should have been stayed under section 654, which prohibits punishment for two crimes arising from a single, indivisible course of conduct. This means that if all of the crimes were merely incidental to or were the means of accomplishing or facilitating a single objective, the defendant may receive only one punishment.

Authority:

PEN 654

People v. Islas (2012) 210 Cal.App.4th 116, 129

Appellate Principles, Sentencing

Case: 000204

Posted on by Gary McCurdy

Error and/or relief

The 25 years to life sentences on three counts violate constitutional prohibitions on ex post facto laws because the offenses occurred prior to the effective date of the statute under which they were imposed. The trial record does not establish beyond a reasonable doubt that the offenses in the three counts occurred after the effective date of the statutory amendment increasing the penalty for the offenses.

First Holding:

The federal and state constitutions proscribe ex post facto laws. Both constitutions prohibit legislatures from retroactively increasing the punishment for a crime. The federal and state ex post facto laws are interpreted the same way.

Authority:

U.S. Const., art. I, sec. 10

Cal. Const., art. I, sec. 9

Collins v. Youngblood (1990) 497 U.S. 37, 42–43

People v. Grant (1999) 20 Cal.4th 150, 158

People v. Snook (1997) 16 Cal.4th 1210, 1220

Second Holding:

Ex post facto principles have been applied to the One Strike law and its amendments. Where the ex post facto clauses apply, it is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

Authority:

People v. Canales (2024) 106 Cal.App.5th 1230, 1259–1260

People v. Hiscox (2006) 136 Cal.App.4th 253, 256–262

People v. Riskin (2006) 143 Cal.App.4th 234, 244–245

Third Holding:

An unauthorized sentence may also be corrected on appeal despite the absence of an objection below. A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case.

Authority:

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

Fourth Holding:

When part of a sentence is stricken on review, a remand and full resentencing is generally appropriate so the trial court can exercise its sentencing discretion following the changed circumstances. However, when the trial court imposes the maximum possible sentence, there is no need to remand the matter for resentencing. Where there are no sentencing choices to restructure, it is appropriate to modify the sentence on appeal.

Authority:

PEN 1260

People v. Buycks (2018) 5 Cal.5th 857, 893, 896 fn 15

People v. Lopez (2019) 42 Cal.App.5th 337, 342

People v. Francis (2017) 16 Cal.App.5th 876, 887

Fifth Holding:

The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61(c). The only crime for which the defendant was convicted is identified in section 667.61(c)(8) and therefore, defendant’s convictions do not implicate the mandatory sentencing provision in section 667.61(i). By implication, section 667.61(i) leaves the decision to impose consecutive or concurrent terms on the nonspecified offenses to the sentencing court’s discretion under section 669.

Authority:

PEN 667.61(i)

People v. Lopez (2022) 76 Cal.App.5th 287, 291

People v. Valdez (2011) 193 Cal.App.4th 1515, 1524

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000200

Posted on by Gary McCurdy

Error and/or relief

The defendant’s sentence on two firearm enhancements and one possession of an explosive device should have been imposed and stayed pursuant to Penal Code section 654. We modify the judgment accordingly.

First Holding:

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.

Authority:

PEN 654

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. We review for substantial evidence a trial court’s implied finding that a defendant had separate intents and objectives for different offenses.

Authority:

People v. Islas (2012) 210 Cal.App.4th 116, 129

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fourth Holding:

The sentences on each of three counts were based on his simultaneous possession of two completed assault rifles, and we assume that such possession can constitute two physical acts for the purposes of section 654. Even so, multiple punishment can be imposed consistent with section 654—on two of the three counts —only if substantial evidence in the record supports an implied finding that he had a separate objective in possessing one firearm versus the other. Our review of the record reveals no such evidence. Section 654 also prohibits multiple punishment for both possession of an explosive device and possession of ingredients to make an explosive device, because the explosives the defendant possessed were not actually capable of exploding, and thus identical evidence supported both counts. Both counts were based on the defendant’s possession of the ingredients in the box truck, at the same time and place, and under the same circumstances. Both counts were based on, essentially, the same course of conduct.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 358 [suggesting simultaneous possession of different items of contraband’ are separate acts for purposes of section 654]

In re L.J. (2021) 72 Cal.App.5th 37, 43

Fifth Holding:

Because it is apparent from the sentence imposed that the sentence would be little changed as a result of remand, in the interests of judicial economy, and given that the parties agree on this remedy, we will modify the judgment to stay the sentences on counts 5 and 6 rather than remand for resentencing.

Authority:

PEN 1260 [authority to modify unauthorized sentence]

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [staying execution of the penalty imposed is the preferred remedy for section 654 error where the reduction in sentence would be relatively minor because in such cases, it would not serve the interests of justice or judicial economy to require remand]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority to modify judgment to impose and stay sentence under section 654 rather than remand for resentencing that will not change defendant’s actual prison time]

Sentencing

Case 000198

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing three Life Without The Possiblity Of Parole (LWOP) sentences on each of the two murders, despite the jury having found true three special circumstances as to each murder.

Holding:

The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more special circumstances has been found to be true. Multiple true special circumstance findings do not justify additional punishment.

Authority:

PEN 190.2

People v. Montes (2014) 58 Cal.4th 809, 874 [defendant faced no additional punishment merely as a result of additional special circumstance true finding]

Abstracts and Minutes, Eighth Amendment, Fines and fees, Probation Parole PRCS, Sentencing

Case: 000176

Posted on by Gary McCurdy

Error and/or relief

The $150 restitution fine and the parole revocation fine imposed on count three are unauthorized and must be vacated or stayed. The fine had been imposed on a count that was stayed under Penal Code section 654. Aside from that problem, a separate parole revocation fine cannot be imposed on a misdemeanor offense. Also, the abstract of judgment must be corrected because it incorrectly states that he has a prior strike and was sentenced under Penal Code section 667(b) through (i), or section 1170.12.

First Holding:

When a court imposes multiple punishments in violation of section 654, it acts in excess of its jurisdiction and imposes an unauthorized sentence that can be challenged for the first time on appeal.

Authority:

People v. Soto (2016) 245 Cal.App.4th 1219, 1234

Second Holding:

Defendant is not subject to parole separately for the misdemeanor and is thus not subject to a parole revocation restitution fine on it.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 547

Third Holding:

The abstract of judgment must be corrected because it erroneously states that he has a prior strike and that he was sentenced under section 667(b) through (i), or section 1170.12. There is no indication in the record defendant has sustained a prior strike conviction. We will order the abstract of judgment corrected to reflect that he does not have a strike prior, and he was not sentenced pursuant to section 667(b) through (i), or section 1170.12.

[Gary note: The court cited no authority for the obvious proposition that the abstract of judgment needs to be corrected. I have listed below some of many cases that the court could have relied on.]

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

Amelioration, Sentencing

Case: 000170

Posted on by Gary McCurdy

Error and/or relief

The sentence impose at the resentencing under section 1172.75 must be vacated because the court imposed unauthorized sentences on the two gun enhancements, thus requiring a remand for full resentencing. Any sentence imposed on the section 12022.5 enhancements shall be in accordance with the terms specified under current law.

First Holding:

Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b) is legally invalid. When a judgment includes such an enhancement, the court shall recall the sentence and resentence the defendant. Resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. It shall not result in a longer sentence than the one originally imposed.

The statute requires the court to apply changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

Authority:

PEN 1172.75

Second Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 36

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Third Holding:

Though the term imposed for the firearm enhancements permitted the then-upper term of five years imposed at sentencing in 1984 under a triad of three years, four years or five years, the triad has since changed to three years, four years, or ten years. Reimposition of the five years is no longer an option because it is no longer part of the available triad. The court cannot impose the upper term of 10 years, because section 1172.75 specifies that the court may not impose a sentence longer than the original one. Further, imposition of a sentence higher than was available at the time of the offense would encounter ex post facto problems. Because of the unauthorized sentences on the firearm enhancements, the matter must be remanded for full resentencing, and the defendant will have another opportunity to seek the dismissal of his prior strike conviction.

Authority:

PEN 1172.75

People v. King (1993) 5 Cal.4th 59, 79-80 [ex post facto violated by imposing enhancements that could not have been imposed at the time of the offense]

People v. Trujeque (2015) 61 Cal.4th 227, 256-257 [permitting prosecution of a case that could not have been refiled under prior law violate ex post facto proscription]

Sentencing

Case: 000136

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentences for both counts 2 and 3 in violation of section 654.

First Holding:

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. Therefore, section 654 prohibits multiple punishment for offenses committed during a single or indivisible course of conduct.

Authority:

PEN 654

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

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208

Second Holding:

Section 654 prohibits the imposition of concurrent sentences for offenses committed during a single or indivisible course of conduct. The accepted procedure for such offenses is to sentence defendant for each count and stay execution of sentence on certain counts to which section 654 is applicable.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

Third Holding:

The trial court erred by imposing punishment for both count 2 and count 3 because both offenses arose out of a single or indivisible course of conduct. Both counts 2 and 3 were committed during the defendant’s single or indivisible course of conduct of driving his car and causing injury to one victim. Therefore, section 654 prohibits punishment of the defendant for both counts. Because under amended section 654, the trial court has discretion whether to punish the defendant for either count 2 or count 3, we reverse its imposition of punishment for both counts and remand the matter for the limited purpose of resentencing him on count 2 and count 3.

Authority:

PEN 654

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]