Tag Archives: Unauthorized sentence

Discretion, Sentencing

Case 000535 and Case 000536

Posted on by Gary McCurdy

Error and/or relief

We vacate the conviction for involuntary manslaughter, as it is a lesser included offense of the murder that she was also convicted of in a separate count. Section 654 requires stay of either the murder count or the child abuse count, because they were based on the same act. We remand to the trial court for it to determine which of the two sentences should be stayed.

[Gary note: There were two defendants, and the opinions, though separate, were virtually material, so I have summarize both in this single summary]

First Holding:

We summarize the relevant facts pertinent to the issues raised on appeal, viewing the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

For Victim A’s death, the jury convicted the defendant of both second degree murder (count 1) and involuntary manslaughter (count 2). The parties agree, as do we, that, because substantial evidence supports the murder conviction, the involuntary manslaughter conviction must be vacated. A defendant cannot be convicted of both an offense and a necessarily lesser included offense based upon the commission of an identical act. In such a situation, the lesser included offense must be reversed. Involuntary manslaughter is a lesser included offense of murder. The defendant’s convictions were based on the same act. Accordingly, the conviction in count 2 must be vacated.

Authority:

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Munoz (2019) 31 Cal.App.5th 143, 153

Third Holding:

For the child abuse conviction in count 3 involving Victim A, the defendant received a sentence of four years in prison, which was to run concurrently to her indeterminate sentence for Victim A’s murder in count 1. Section 654 prohibits multiple punishment for a single act or course of conduct that violates more than one statute. Where all offenses are incident to one objective, the defendant may be punished for only one of them, and execution of sentence on the remaining counts must be stayed. Because the same act supports the convictions in counts 1 and 3, section 654 prohibits multiple punishment and requires that execution of sentence be stayed on one of those counts.

Authority:

PEN 654(a)

People v. Correa (2012) 54 Cal.4th 331, 337

Fourth Holding:

Under amended section 654, the sentencing court has discretion to determine which sentence should be stayed. This could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. At sentencing in this matter, the trial court imposed a concurrent four-year term on count 3. Although the court’s decision to run the felony child abuse term concurrently suggests it would not stay the sentence for murder, nothing in the sentencing record affirmatively shows how the trial court would have exercised its discretion under section 654. Accordingly, we remand for resentencing so the trial court may determine in the first instance which sentence must be stayed under section 654.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Appellate Principles, Sentencing

Case 000526

Posted on by Gary McCurdy

Error and/or relief

At sentencing, the trial court found the defendant, who was found guilty of assault with a deadly weapon and vandalism, was not a suitable candidate for probation and imposed a custodial sentence. As part of that sentence, the court issued an indefinite stay-away order barring the defendant from the specific address of the apartment complex where the victim lived. It was improper to issue a protective order, which must be stricken.

First Holding:

Claims that a sentence is unauthorized may be raised for the first time on appeal and should be corrected whenever a reviewing court identifies the error.

Authority:

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

Second Holding:

Section 136.2(a)(1), allows a trial court to issue protective orders during a criminal case. But courts have read that provision to allow protective orders only while the criminal action is pending. In response, the Legislature added subdivision (i) to section 136.2, which allows postconviction protective orders lasting up to 10 years, but only when the defendant is convicted of domestic violence, certain sexual offenses, street terrorism, or crimes requiring sex offender registration.

Outside of those categories, section 136.2 does not give the trial court statutory authority to impose the postconviction protective order. The order here was unauthorized on two independent grounds. First, it was indefinite in duration and not tied to the pendency of the criminal proceedings. The trial court denied probation, so the order was not authorized as a condition of probation. A postjudgment restraining order imposed under these circumstances falls outside the authority granted by section 136.2 and must be stricken. Second, the trial court never made a finding of good cause to believe that the defendant posed an ongoing risk of intimidating or dissuading the vicitm or anyone else at the complex.

Authority:

PEN 136.2

People v. Corrales (2020) 46 Cal.App.5th 283, 286

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

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Third Holding:

A criminal protective order must also rest on a finding of good cause to believe that the defendant is likely to try to intimidate or dissuade a victim or witness. The fact that a victim was harmed or threatened with harm is not enough on its own.

Authority:

Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 962

Fines and fees, Probation Parole PRCS, Sentencing

Case 000521

Posted on by Gary McCurdy

Error and/or relief

The court improperly imposed a domestic violence fee, because that only applies to those granted probation, which the defendant was not, as he was sentenced to prison.

First Holding:

The requirement to make a $500 domestic violence payment is not authorized by section 1203.097, because the trial court denied probation. The judgment is modified to strike the $500 domestic violence payment.

Authority:

PEN 1203.097

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in 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. Section 654 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. 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. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

Authority:

PEN 654

People v. Beamon (1973) 8 Cal.3d 625, 637

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

Appellate Principles, Sentencing

Case 000496

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on one count under section 654.

Holding:

The defendant was convicted under two separate Penal Code sections for the same act. Section 654 provides that an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one provision. The sentence imposed for count 7 should have been stayed. The defendant requests a remand for resentencing, but we may modify the judgment ourselves to stay the count 7 sentence.

(GARY NOTE: The opinion does not mention whether it concluded that the trial court would have imposed sentence on the count carrying the longer sentence (15 years to life) rather than on the count carrying the shorter term (180 days), a choice that has been restored to the judiciary with the passage of AB 518 several years ago. But the defendant’s total sentence on the numerous counts consisted of several hundred years to life. Allowing the trial court to choose between the counts would likely not have resulted in earlier release. On the other hand, it is conceivable that on remand, the trial court might have had other options on a full resentencing.)

Authority:

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

People v. Lopez (2004) 119 Cal.App.4th 132, 139