Tag Archives: Unauthorized sentence

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

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

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

Sentencing

Case 000060

Posted on by Gary McCurdy

Error and/or relief

The trial court’s oral pronouncement of judgment and its sentencing minute order included an unauthorized sentence on the attempted robbery conviction.

First Holding:

The one-year sentence reflected in the reporter’s transcript and the eight-year sentence reflected in the sentencing minute order should be corrected because the authorized consecutive sentence on this count is eight months.

Authority:

Pen. Code, sec. 1170.1(a)

People v. Neely (2009) 176 Cal.App.4th 787, 797 [one-third middle term sentence for second degree attempted robbery is eight months]

Second Holding:

The court may correct unauthorized sentence at any time. [GARY NOTE: This holding may be true only if the court has jurisdiction to proceed in the case, as established by other case law. You’ll want to review at least the three cases that I cite below Scott–not cited in this unpublished opinion–and the cases they cite if you need to get a judge to take jurisdiction or if you need to oppose a judge’s orders made without jurisdiction.]

Authority:

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

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

People v. Boyd (2024) 103 Cal.App. 56

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

Third Holding:

Although a court’s oral pronouncement of judgment ordinarily controls given our obligation to correct unauthorized sentences, we conclude that an oral pronouncement of an unauthorized sentence does not control over a correct abstract of judgment. Accordingly, we shall modify the oral pronouncement of judgment to reflect a consecutive eight-month sentence on count 6 and direct the trial court to amend its sentencing minute order to reflect this modification.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [on the principle that the oral pronouncement normally controls]

Sentencing

Case 000030

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed an unauthorized sentence in count 1 when it sentenced the defendant as a third-striker, because assault by means likely to produce great bodily injury is not a serious or violent felony.

First Holding:

Assault by means likely to produce great bodily injury is not a serious or violent felony.

Authority:

People v. Leng (1999) 71 Cal.App.4th 1, 9 [A violation of former section 245(a)(1) is a serious felony only if the prosecution properly pleads and proves that the defendant personally inflicted great bodily injury on any person, other than an accomplice, or personally used a firearm or a dangerous or deadly weapon]

Second Holding:

When a defendant with two or more convictions for serious and/or violent felonies within the meaning of the Three Strikes law is convicted of a non-strike offense, the defendant must be sentenced as a second-striker with respect to that offense.

Authority:

People v. Johnson (2015) 61 Cal.4th 674

People v. Lynn (2015) 242 Cal.App.4th 594

Third Holding:

Because the sentence was unauthorized, we remand the matter to the trial court for a full resentencing hearing.

Authority:

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