Tag Archives: Unauthorized sentence

Appellate Principles, Sentencing

Case: 000103

Posted on by Gary McCurdy

Error and/or relief

We conclude the concurrent sentences on two counts constitute multiple punishment proscribed by section 654. Accordingly, we modify the judgment to stay the sentence on the second of those two counts.

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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. Section 654 proscribes multiple punishment for crimes arising from a single act. This statutory protection has also been extended to proscribe punishment for multiple crimes arising from an indivisible course of conduct.

Authority:

PEN 654

People v. Harrison (1989) 48 Cal.3d 321, 335

Second Holding:

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. This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is not required by the language of section 654, but rather by case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 295

Third Holding:

The accepted procedure where section 654 applies is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable. Accordingly, the sentence for either of the two counts should be stayed instead of running concurrent as the court did here.

Authority:

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

Fourth Holding:

An appellate court has the discretion to modify a judgment to stay sentences that should have been stayed. An appellate court may reverse, affirm, or modify a judgment, or may remand for further proceedings as may be just under the circumstances.

Authority:

PEN 1260

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

Sentencing

Case: 000097

Posted on by Gary McCurdy

Error and/or relief

The defendant claims the trial court erred in sentencing him to five years in prison, and alternatively asserts the court was unaware of its discretion to strike the enhancement in the earlier case. The People concede the trial court did not appreciate its discretion but argue it did not err because the original sentencing court would not have struck the enhancement. We vacate defendant’s sentence and remand for resentencing but otherwise affirm the judgment.

First Holding:

The trial court erred because it failed to understand its discretion to correct what we conclude was an unauthorized sentence. We will remand to allow the court to exercise its informed discretion to correct the unauthorized sentence and resentence defendant. A sentence is unauthorized when it could not lawfully be imposed under any circumstances.

Authority:

People v. Martinez (1998) 65 Cal.App.4th 1511, 1516-1517

Second Holding:

The original sentencing court was required to either suspend imposition of a sentence or impose and suspend execution of a sentence before placing defendant on probation. Instead, the original sentencing court did not pronounce a sentence for the underlying driving under the influence offense but imposed and suspended execution of the great bodily injury enhancement. As a result, we conclude the original sentencing court’s oral pronouncement of judgment was unauthorized. To determine the sentence imposed by the first sentencing court, we look to the oral pronouncement of the sentence. Where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls. Ordinarily, this principle of law would let us apply the trial court’s oral pronouncement of judgment as the definitive sentence, but here the sentence orally pronounced was unauthorized. The record cannot be harmonized to correct the unauthorized sentence.

Authority:

PEN 1203.1

People v. Hill (1986) 185 Cal.App.3d 831, 834 [an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components–the invalidity of one component infects the entire scheme]

People v. Price (2004) 120 Cal.App.4th 224, 243

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Third Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such situations, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion had it been aware of the scope of its discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sentencing

Case: 000093

Posted on by Gary McCurdy

Error and/or relief

The defendant challenges his sentence on the ground it violates Penal Code section 654. We agree that the course of criminal conduct in two of the counts was indivisible, and the trial court should have stayed execution of the sentence on one of them. We will remand the matter to the trial court to correct the sentence. In all other respects, we affirm.

Holding:

When a defendant’s single course of conduct violates two criminal statutes, the defendant may be convicted of both crimes, but may only be sentenced on one.

Authority:

PEN 654

People v. Jones (2012) 54 Cal.4th 350, 358–359

Jurisdiction

Case 000084

Posted on by Gary McCurdy

Error and/or relief

The trial court did not have jurisdiction to amend earlier (erroneous) pronouncements on credit for time served, and the appellate court left in place the uncorrected credit for time served even though it gave him more conduct credit than he was entitled to. The appellate court treated the defendant’s appeal as a petition for writ of habeas corpus, because there was no right to appeal from an order that the trial court had no jurisdiction to make. The California Department of Corrections and Rehabilitation clerk’s letter saying there was an error in the award of credit for time served does not constitute a request by CDCR to resentence the defendant under section 1172.1. As the judgment was already final, the trial court had no jurisdiction to change the judgment, even though erroneous. The superior court was directed to amend the abstract of judgment to reflect that the prior sentence as reflected in the original abstract of judgment is reinstated including the awarding of the custody credits.

First Holding:

The court may treat an appeal as a petition for writ of habeas corpus.

Authority:

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

Second Holding:

Unlike a letter from the California Department of Correction and Rehabilitation Secretary or their authorized representative expressly requesting recall and resentencing, a letter from a CDCR analyst recommending the court to review its file does not confer jurisdiction under section 1172.1 to vacate or modify a sentence notwithstanding the long-standing practice of treating such letters as a jurisdictional basis.

Authority:

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

Third 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. Once the case is final, the court can modify the sentence only if the court has jurisdiction under section 1172.1 or another authorizing statute, or by the filing of a petition for a writ of habeas corpus, or to correct a clerical error, or to modify an unauthorized sentence when the error is apparent from the record

Authority:

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

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

People v. Singleton (2025) 113 Cal.App.5th 783, 788, 791

Fourth Holding:

The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases. Courts must respect the limits on review imposed by the Legislature although the People may thereby suffer a wrong without a remedy. The fact that the act of the trial court was without authority and thus was an act in excess of the trial court’s jurisdiction in itself cannot enlarge the right of appeal by the People.

Authority:

PEN 1238

People v. Superior Court (Mitchell) (2024) 17 Cal.5th 228, 244

People v. Godfrey (1978) 81 Cal.App.3d 896, 901

People v. Williams (2005) 35 Cal.4th 817, 823

Abstracts and Minutes, Pleading, 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