Tag Archives: Unauthorized sentence

Sentencing

Case 000964

Posted on by Gary McCurdy

Error and/or relief

(Gary note: This was not a win, but has section 654 principles of importance.)

There are some sentencing errors related to counts 2, 3 and 4. The court imposed one-third the midterm on each of counts 2 and 3, which it stayed under section 654, and it imposed a concurrent one-third the midterm on count 4.

It was error to impose and stay sentences under section 654 based on 1/3 the middle term, and it was error to impose a concurrent term at 1/3 the middle term.

First Holding:

If a court makes multiple terms concurrent, they must all be full terms, not one-third the midterm. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling.

Authority:

PEN 669

PEN 1170.1(a)

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

Second Holding:

Section 654 prohibits multiple punishment where the same act or omission or a course of conduct deemed to be indivisible in time results in multiple statutory violations. A trial court must determine whether to stay execution of a sentence under section 654, thereby avoiding multiple punishment, before deciding whether to impose concurrent or consecutive sentences.

If the court decides to stay a sentence, it must impose and stay execution of the sentence on that count with no determination made as to whether it is consecutive or concurrent. This is because a term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.

Authority:

Cal. Rules of Court, rule 4.424

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

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3

Third Holding:

In addition, the one-third-the-midterm rule of section 1170.1(a) only applies to a consecutive sentence, not a sentence stayed under section 654. When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the defendant’s punishment is commensurate with his criminal liability if the stay is lifted.

Accordingly, the trial court must impose a full term on any count that it stays under section 654. If the count for which sentence is not stayed is reversed or otherwise undone, imposition of sentence on the stayed count is preserved.

Authority:

People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Fourth Holding:

Here, the transcript of the sentencing hearing, the court’s sentencing minute order and the abstract of judgment reflect the court imposed unauthorized terms of one-third the midterm for counts 2, 3 and 4. Such unauthorized sentences are subject to correction on review.

Authority:

People v. Menius (1994) 25 Cal.App.4th 1290, 1295

Gary Bonus Note:

(In the last sentence of what I have called First Holding, the court states that a concurrent term begins to run when it is imposed. But there is a special provision under Penal Code section 1203.2a (no parentheses there) that every attorney should practically memorize. It is limited to cases where a defendant has been placed on probation in one case, then later is committed to state prison on another case.  Section 1203.2a can provide a benefit.

(Read it carefully. It appears to require proper steps by the defendant, though Hoddinott seems to hold otherwise. Why take the chance? Just do it right, and you won’t risk the Supreme Court changing its mind, right?

(But if events happen as described in section 1203.2a, the court has a limited time during which it has jurisdiction to act on the probation case, and failure to act within the limited time deprives the court of all jurisdiction to act on the probation case.

(Assuming the court acts timely and revokes probation and imposes a concurrent sentence, it will be deemed to have started from either the date probation was granted or from the date he was received in prison on the new offense.  In other words, far earlier than the date the court imposes execution of sentence on the probation revocation.  Section 1203.2a is designed to serve as an incentive for defendants to take care of outstanding cases when they are sent to prison.

(Again, read it carefully, and guide your client into fulfilling all the steps that serve to invoke section 1203.2a. Of course, if the court chooses to impose the sentence consecutively (assuming a timely action), the consecutive term will be served in a normal fashion.

(But section 1203.2a carries the possibility that untimely action by the court will deprive it of jurisdiction OR that, if the court is so inclined, a concurrent sentence starts at a much earlier time than the order revoking probation and committing the defendant to prison.

(An excellent analysis appears in In re Hoddinott (1996) 12 Cal.4th 992. Section 1202.2a requires the probation officer to report to the court whenever it learns a probationer has been committed to state prison. If the prisoner makes a request in conformity with the opening paragraph of the section, or if the probation learns about the new commitment from some other source, the probation officer must notify the court within 30 days. And here is Hoddinott’s summary of what happens if the probation officer or the court does not act timely:

(“In summary, we hold section 1203.2a’s final paragraph describes two events that will oust the court of jurisdiction: the probation officer’s failure to report the commitment to the court (in accord with paragraph two’s requirements) and the court’s failure to impose sentence within the time periods specified in the third paragraph. The probation officer’s 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer’s subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing.”)

Sentencing, Sixth Amendment

Case 000897

Posted on by Gary McCurdy

Error and/or relief

On remand following the defendant’s earlier appeal, the trial court imposed an upper term based on impermissible aggravating recidivism factors.

Holding:

Under the Sixth Amendment, a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Here, the court imposed the upper term based on the aggravating facts that the defendant’s prior convictions were numerous and of increasing seriousness and his performance on probation was unsatisfactory.

Because the defendant did not stipulate to these facts, which go beyond the bare fact of his prior convictions and their elements, he was entitled to a jury trial on them. That he did not receive one renders the sentence unauthorized.

Accordingly, we vacate the sentence and remand the matter to give the People an opportunity to retry the aggravating facts.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086, 1091

People v. Lynch (2024) 16 Cal.5th 730, 776 [proper remedy where aggravating facts were not tried to a jury is to remand and give the People an opportunity to retry the aggravating facts]

 

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sentencing, Standard of review

Case 000871

Posted on by Gary McCurdy

Error and/or relief

The court was not statutorily authorized to impose a section 12022.53(c) enhancement for a section 26100 offense (discharging a firearm from a motor vehicle). We remand the case to the trial court for resentencing.

First Holding:

We review the trial court’s sentencing decisions for abuse of discretion. In deciding whether the trial court has abused its discretion, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847

People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746

Second Holding:

Section 12022.53, in relevant part, sets forth escalating additional and consecutive penalties, beyond that imposed for a substantive crime, for the use of a firearm in the commission of specified felonies. Section 12022.53(c) mandates the imposition of a 20-year term for the personal and intentional discharge of a firearm in the commission of one of the section 12022.53(a) felonies, which does not include section 26100.

Imposition of that enhancement was an abuse of discretion, which resulted in an unauthorized sentence.

Authority:

PEN 12022.53

Third Holding:

The People suggest this court can modify the sentence and impose a lesser included section 12022.5(a) enhancement of 10 years. But section 12022.5(a) provides that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle. Thus, we remand the case to the trial court for resentencing.

Authority:

People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2

People v. Tirado (2022) 12 Cal.5th 688, 700, fn. 12

Eighth Amendment, Fines and fees, Sentencing

Case 000857

Posted on by Gary McCurdy

Error and/or relief

The court imposed an incorrect term for one of the counts of conviction. It appears that the court may not have considered whether section 654 applies to some counts. And the court’s medical costs order requires clarification.

First Holding:

The court imposed one year in the county jail for violation of Health and Safety Code section 11364 (possession of narcotics paraphernalia), a misdemeanor. Because there is no specific sentence defined for that offense, the general provisions of section 11374 apply.

Every person who violates or fails to comply with any provision of the division that includes section 11364, except one for which a penalty is otherwise in that division specifically provided, is guilty of a misdemeanor punishable by a fine in a sum not less than thirty dollars ($30) nor more than five hundred dollars ($500), or by imprisonment for not less than 15 nor more than 180 days.

It was error to impose a jail term greater than 180 days, and the sentence imposed was an unauthorized sentence.

Authority:

HSC 11364

HSC 11374

People v. Anderson (2010) 50 Cal.4th 19, 26 [a sentence is generally unauthorized when it cannot be lawfully imposed under any circumstance in a particular case]

Second Holding:

On remand, the trial court may reconsider all components of defendant’s sentence, including whether section 654 applies to counts 3 and 4.

Authority:

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

Third Holding:

The trial court ordered defendant to pay for his own medical costs or medical fees while incarcerated. The trial court was not authorized to require him to pay his medical costs or fees while in prison. The probation report cited section 4011 as the authority for the medical costs order, but that section applies only to medical care of prisoners while in a city or county jail and not costs incurred during state level incarceration.

Further, section 5007.5 prohibits the Secretary from imposing a fee for inmate-initiated medical visits in prison. The statute does not prohibit requiring a prisoner to pay any other medical fees or bills that may be charged to him while incarcerated.

On remand, the trial court is instructed to clarify its order requiring defendant to pay his medical costs and fees in accordance with Penal Code section 5007.5.

Authority:

PEN 5007.5 [prohibiting the Secretary of the Department of Corrections and Rehabilitation from charging a fee for an inmate-initiated medical visit of an inmate confined in the state prison.]

PEN 4011 [concerning incarceration in a city or county jail]

Appellate Principles, Discretion, Sentencing, Statutory interpretation

Case 000855

Posted on by Gary McCurdy

Error and/or relief

The trial court erred under section 654 by imposing concurrent sentences on three separate convictions arising from the same single act.

First Holding:

Section 654(a) provides 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. When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence. The imposition of concurrent sentences is precluded by section 654 because under such a sentence the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

PEN 654

People v. Duff (2010) 50 Cal.4th 787, 796

People v. Mani (2022) 74 Cal.App.5th 343, 380 [The trial court is required to impose judgment on each count, which involves selecting a term, and then staying execution of the duplicative sentence, the stay to become permanent upon defendant’s service of the portion of the sentence not stayed.]

Second Holding:

Section 654 provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.

Authority:

PEN 654

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

Third Holding:

One provision of the One Strike law, section 667.61(h)), states: “Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.”

There is a split of authority over whether this provision precludes a sentencing court from staying execution of a One Strike sentence under section 654. We conclude that People v. Govan has the better reasons view of the interplay between section 667.61(h) and section 654.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669

People v. Govan (2023) 91 Cal.App.5th 1015, 1032-1035 [Based on the Govan court’s review of legislative history, the “no suspension clause” must be read in the context of a bar against the grant of probation, and does not supersede section 654’s prohibition against multiple punishment, disagreeing with Caparaz.]

Fourth Holding:

When we interpret a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.

We first examine the statutory language, giving it a plain and commonsense meaning. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.

Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 989–990

Fifth Holding:

Courts have recognized that the suspension clause’s language has a technical meaning unique to a grant of probation. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Indeed, as used in section 1203(a), “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

When the Legislature uses a term of art, a court construing that use must assume that the Legislature was aware of the ramifications of its choice of language. We therefore conclude the Legislature intended for section 667.61(h)’s suspension clause to have its technical, probation related meaning.

Authority:

PEN 7(c) [Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and any others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to that peculiar and appropriate meaning.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1033

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [the words ‘suspension of execution’ are employed in conjunction with a grant of probation and have developed into terms of art], (disapproved on another ground by People v. Norrell (1996) 13 Cal.4th 1, 7, fn. 3)

People v. Borynack (2015) 238 Cal.App.4th 958, 965

Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3

Sixth Holding:

This interpretation is consistent with how some courts have interpreted similarly worded statutes. Many related criminal statutes with related purposes contain language identical to section 667.61(h). Courts have not historically interpreted similar statutory provisions as precluding a stay under section 654.

Authority:

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [We consider the language of the entire scheme and related statutes, harmonizing the terms when possible.]

People v. Barela (1983) 145 Cal.App.3d 152, 160 [holding section 1203.06–with similar language–does not preclude a stay under section 654]

People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 536, fn. 8 [rejecting as unpersuasive the contention that a prohibition on suspension of execution of sentence under repealed section 12311 precluded a stay under section 654]

Seventh Holding:

We presume that when the Legislature enacted section 667.61 in 1994 and amended it in 2006, the Legislature was aware of how courts had interpreted identical statutory language and that the Legislature intended for that interpretation to also apply to section 667.61.

Where legislation has been judicially construed and a subsequent statute on the same or an analogous subject uses identical or substantially similar language, we may presume that the Legislature intended the same construction, unless a contrary intent clearly appears.

Authority:

People v. Seumanu (2015) 61 Cal.4th 1293, 1367

Eighth Holding:

Finally, we are satisfied that interpreting section 667.61 as allowing a stay under section 654 is consistent with the One Strike law’s legislative purpose in imposing lengthy prison sentences for certain sex offenses.

Although interpreting section 667.61 this way allows for shorter sentences in some circumstances, it does not require it. Rather, it leaves the decision to the trial court’s sound sentencing discretion.

Authority:

PEN 654

People v. Reynoza (2024) 15 Cal.5th 982, 989

Ninth Holding:

When a sentencing court is unaware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

In light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.

The record indicates, however, that the trial court did not understand the scope of its discretion. The court expressly stated it took no joy in imposing the harsh sentence, and that it had imposed counts concurrently wherever it could, but that it had no discretion to impose other than the harsh sentence–that the sentence it imposed were the only options.

Therefore, we must remand for resentencing given the extent of the court’s full discretion under section 654.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 424

People v. Gutierrez (2009) 174 Cal.App.4th 515, 527

(Gary note, of marginal historical interest: Prior to 1998, Penal Code section 654 had exactly the same language as it currently has, and a court was free to impose sentence on any one of the counts to which section 654 applied. See People v. Norrell (1996) 13 Cal.4th 1. In response to that Supreme Court decision, the Legislature amended section 654 to require that the court impose sentence on the count containing the longest potential term. Through AB 518, effective 1/1/2022, the Legislature restored section 654 to its former language, thus restoring to the court the discretion to choose on which count punishment should be imposed and executed.)