Tag Archives: Unauthorized sentence

Jurisdiction, Sentencing

Case: 000444

Posted on by Gary McCurdy

Error and/or relief

The trial court had no jurisdiction to modify the long-final judgment in response to a letter from the Department of Corrections and Rehabilitation (CDCR) that pointed out sentencing errors (which were adverse to the defendant’s interests). The defendant appealed, but the Court of Appeal dismissed the appeal because there was no jurisdiction in the lower court, and thus nothing to appeal from.

It did, however, treat the appeal as a petition for writ of habeas corpus and granted the writ, directing the trial court to to vacate the order modifying the defendant’s’ sentence on the conviction for dissuading a witness and reinstate the original sentence imposed on that count.

First Holding:

Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. However, there are limited exceptions to this rule. For example, the court has inherent power to correct a clerical error at any time. A court also may resentence a defendant in connection with a petition for writ of habeas corpus or under specified conditions provided in section 1172.1.

Authority:

People v. Karaman (1992) 4 Cal.4th 335, 344

People v. Singleton (2025) 113 Cal.App.5th 783, 787, 790–791

Second Holding:

Here, the trial court made two modifications to the defendant’s sentence long after execution of the sentence had commenced. First, the court imposed a 10-year enhancement under section 12022.5(a), rather than under section 667.6(c). A record of the court’s oral pronouncement of the original sentence could not be produced for this appeal, so it is not clear if the court misspoke while announcing the sentence, or if the mistake appeared for the first time in the minute order.

In any event, it is apparent the court intended to impose the enhancement under section 12022.5(a), as alleged in the information and found true by the jury. Therefore, the error was essentially clerical, which the trial court had inherent discretion to correct at any time.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1294 [court’s inadvertent reference to the wrong statute at sentencing was a clerical error]

People v. Singleton (2025) 113 Cal.App.5th 783, 790–791

Third Holding:

Second, the trial court modified the defendant’s sentence to impose a full consecutive middle term on the dissuading a witness count. The original sentencing court imposed a consecutive one-third the middle term on that count, as is generally required under section 1170.1(a). However, the resentencing court determined section 1170.15 required it to impose a full consecutive term, presumably because the victim of the dissuading offense also was the victim of another felony conviction. A court’s failure to impose a full consecutive term under section 1170.15 is a judicial error, not a clerical error.

Authority:

People v. Singleton (2025) 113 Cal.App.5th 783, 792 [a court makes a judicial error when it fails to impose the legally required sentence under section 1170.15]

Fourth Holding:

Courts of Appeal are split on whether trial courts have inherent jurisdiction to correct an unauthorized sentence, i.e., a sentence that could not lawfully be imposed under any circumstance in the particular case. The majority of appellate courts have concluded they do not but others see it differently.

Authority:

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

People v. King (2022) 77 Cal.App.5th 629, 633

People v. Boyd (2024) 103 Cal.App.5th 56, 62–63

People v. Hernandez (2024) 103 Cal.App.5th 1111, 1122–1124

People v. Singleton (2025) 113 Cal.App.5th 783, 796–797

People v. Garcia (2025) 114 Cal.App.5th 139, 144–145

People v. Codinha (2023) 92 Cal.App.5th 976, 990

People v. Cervantes (2025) 115 Cal.App.5th 825

In re G.C. (2020) 8 Cal.5th 1119

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000417

Posted on by Gary McCurdy

Error and/or relief

It was error to impose a $10 crime prevention fine under section 1202.5. It is ordered stricken. The minute order must be corrected to reflect that the resentencing proceedings were under section 1172.75, not under section 1172.6 as the minute order indicated.

First Holding:

The original imposition of the section 1202.5 crime prevention fine was unauthorized.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354 [claims of unauthorized sentencing error may be raised at any time]

Second Holding:

Under section 1202.5(a), courts are required to impose a $10 crime prevention fine on a defendant who is convicted of a theft-related offense listed in the statute. Here, the $10 crime prevention fine was unauthorized because defendant’s convictions are not among the offenses listed in section 1202.5(a). Thus, we strike the $10 crime prevention fine from defendant’s sentence.

Authority:

PEN 1202.5(a)

People v. Jefferson (2016) 248 Cal.App.4th 660, 663

Third Holding:

The minute orders refer to the proceedings as taking place pursuant to section 1172.6. As the record is clear these were resentencing proceedings pursuant to section 1172.75, this appears to be a clerical error.

[Gary note: The court did not cite any authority for the order or observation regarding the correction of the minute order, but there is authority aplenty. The court could have cited one or more of the cases I have set out below.]

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

Fines and fees, Probation Parole PRCS, Sentencing

Case: 000406

Posted on by Gary McCurdy

Error and/or relief

The provision in the probation order requiring the defendant to reimburse the county for public defender and probation related services must be stricken.

Holding:

Section 1465.9(a) provides that the balance of any court-imposed costs imposed under former section 987.8, authorizing public defender fees, and former section 1203.1b, authorizing probation services fees, as those sections read on June 30, 2021, shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. Accordingly, we will strike the portion of the probation order authorizing these fees.

Authority:

PEN 1465.9(a)

People v. Portillo (2023) 91 Cal.App.5th 577, 602-603

People v. Greeley (2021) 70 Cal.App.5th 609, 625

Sentencing

Case: 000403

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error for the court to impose a sentence on the greater subdivision of the gun use enhancement when, at the original sentencing, it had imposed the lesser enhancement.

First Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The trial court may reconsider all its prior discretionary sentencing decisions. The Henderson rule however imposes a limitation on the court’s sentencing discretion. Under the Henderson rule, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the defendant’s sentence]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431

People v. Henderson (1963) 60 Cal.2d 482, 495-497

Second Holding:

When a trial court pronounces an unauthorized sentence,such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. The Serrato rule protects the People’s right to mandated, lawful sentences. The limitations of the rule rebut any appearance of vindictiveness. If an increase in penalty has no nexus to the original illegality in the sentence, the protection against vindictiveness is not applicable. The general rule applies that in California a harsher penalty may not be imposed after a successful appeal.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, 764

People v. Price (1986) 184 Cal.App.3d 1405, 1413

People v. Karaman (1992) 4 Cal.4th 335, 348–350

Third Holding:

Imposition of the firearm enhancement undersection 12022.53(b) on count 1 was not unauthorized. An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case, regardless of the facts. Our criticism of the firearm enhancement in the prior appeal was limited to the manner in which it was imposed rather than the fact of its imposition. Because the challenged enhancement had no nexus to the original illegality in the sentence, we conclude that the trial court erred by imposing the greater enhancement under section 12022.53(d) on this count, in lieu of the lesser enhancement under section 12022.53(b) that it had originally imposed.

We will therefore remand the matter back to the trial court for a full resentencing hearing. While the trial court may reconsider all discretionary sentencing choices under no circumstances should the aggregate sentence be more than the sum of the original sentence and the mandatory increase required due to any Serrato errors.

Authority:

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

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Trammel (2023) 97 Cal.App.5th 415, 435

Abstracts and Minutes, Duty of the court, Fines and fees, Sentencing

Case: 000369

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in failing to conduct a full resentencing. The court erred in its calculation of custody credits, both as to postsentence conduct credits and credits for days in actual custody. The abstract of judgment should be corrected to reflect the oral pronouncement of judgment as to the restitution fines and the victim restitution order.

First Holding:

When a defendant is convicted of an offense, a sentencing court has a duty to render judgment and impose the penalty authorized by law. Judgment is rendered when the trial court orally pronounces sentence. In rendering the judgment, the court must pronounce sentence on each count for which the defendant sustained a conviction. The failure to pronounce a sentence for each conviction results in an unauthorized sentence that can be corrected at any time.

Authority:

PEN 12

People v. Martinez (2015) 240 Cal.App.4th 1006, 1012

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

Second Holding:

At the resentencing hearing following our remand in the earlier appeal, the trial court addressed only the errors we identified in our opinion. Our remand order was not so limited. It was for a full resentencing.

Authority:

People v. Smith (1985) 166 Cal.App.3d 1003, 1008, abrogated on another ground by People v. Bullock (1994) 26 Cal.App.4th 985

Third Holding:

The trial court’s statements suggest a fundamental misunderstanding of the effect of our order vacating the defendant’s sentence and remanding for a full sentencing, which was the nullification of the previous sentence. Because the prior sentence no longer existed, the court had to construct an entirely new sentence. By failing to orally pronounce a sentence on the nine counts for which it stayed the sentences at the original sentencing, the court failed to render judgment on all of the defendant’s convictions, resulting in an unauthorized sentence. When the trial court stated it was excluding counts it had previously stayed under section 654, the trial court used the term concurrent in connection with section 654. But where section 654 applies, it precludes any multiple punishment, consecutive or concurrent.

Authority:

People v. Rouse (2016) 245 Cal.App.4th 292, 297

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

People v. Codinha (2023) 92 Cal.App.5th 976, 994

People v. Deloza (1998) 18 Cal.4th 585, 594

Fourth Holding:

Generally, when an unauthorized sentence is discovered on appeal, a reviewing court affirms the defendant’s conviction and remands the case for the trial court to pronounce a sentence consistent with the verdict.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Fifth Holding:

Our order for a full resentencing necessarily encompasses calculating the defendant’s custody credits and the appropriate assessments, fines, and restitution awards. When it resentenced the defendant, the trial court was required to credit her with all actual days she had spent in custody up to that time, including time in custody after the original sentencing.

Authority:

PEN 2900.1

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

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Sixth Holding:

A trial court is required to include all aspects of a judgment in its oral pronouncement. That includes fines and direct victim restitution. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. Upon a defendant’s request, the trial court must hold a hearing on the defendant’s ability to pay before imposing ancillary costs, like the court operations assessment (sec. 1465.8(a)(1)) and the court facilities assessment (Gov. Code, sec. 70373).

Authority:

People v. Leon (2020) 8 Cal.5th 831, 855

People v. Zackery (2007) 147 Cal.App.4th 380, 387-388

People v. Rowland (1997) 51 Cal.App.4th 1745, 1751

People v. Kopp (2025) 19 Cal.5th 1