Tag Archives: Unauthorized sentence

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.]

Appellate Principles, Sentencing, Standard of review

Case: 000104

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should have stayed the sentence imposed on either of two counts, each of which was based on the same assault and committed with the same intent and objective.

First Holding:

Penal Code section 654 prohibits punishment under more than one provision for any act or omission that is punishable in different ways by different provisions of law. This section applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. Whether a course of conduct is indivisible depends upon 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. Corpening (2016) 2 Cal.5th 307, 309

People v. Perez (1979) 23 Cal.3d 545, 551

Second Holding:

Whether a defendant possessed a single intent and objective is a factual question subject to substantial evidence review on appeal. However, where the facts are undisputed, whether Penal Code section 654 precludes multiple punishment is a legal question, subject to de novo review.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

People v. Goode (2015) 243 Cal.App.4th 484, 493

People v. Pitts (1990) 223 Cal.App.3d 1547, 1552, 1560 [multiple punishment precluded where mayhem and assault convictions were based on a course of conduct in which the defendant threw the victim down, punched her, took a box cutter that she tried to use to defend herself, and used the weapon to slash the victim]

Third Holding:

A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.

Authority:

People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11

People v. Kwok (1998) 63 Cal.App.4th 1236, 1253