We strike the domestic violence probation fee. The defendant was sentenced to prison.
The domestic violation probation fee is imposed only when a defendant is granted probation. It is not applicable when the defendant is sentenced to prison. the unauthorized fee must be stricken.
PEN 1203.97(a)(5)
People v. Kirvin (2014) 231 Cal.App.4th 1507, 1520
People v. Scott (1994) 9 Cal.4th 331, 354
Sentences for eight of his convictions, which the defendant served concurrently with his completed determinate term, should have been stayed under section 654. The court found the balance of the issues forfeited for lack of objection at the trial level.
A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.
People v. Gonzalez (2003) 31 Cal.4th 745, 751
In contrast to errors in exercising sentencing discretion, the waiver doctrine does not apply to questions involving the applicability of section 654. 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.
People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3
In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission. When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.
PEN 654
PEN 954
People v. Reed (2006) 38 Cal.4th 1224, 1226–1227
People v. Alford (2010) 180 Cal.App.4th 1463, 1468
The trial court imposed an indeterminate sentence of 50 years to life for the murders, plus a determinate sentence of 23 years, 4 months, which included a one-year term for burglary and a 16-month term for attempted robbery. The terms for the burglary and attempted robbery should have been stayed under section 654. The judgment is modified to stay the terms imposed for burglary and attempted robbery.
The terms for the burglary and attempted robbery should have been stayed under section 654, which prohibits punishment for two crimes arising from a single, indivisible course of conduct. This means that if all of the crimes were merely incidental to or were the means of accomplishing or facilitating a single objective, the defendant may receive only one punishment.
PEN 654
People v. Islas (2012) 210 Cal.App.4th 116, 129
The 25 years to life sentences on three counts violate constitutional prohibitions on ex post facto laws because the offenses occurred prior to the effective date of the statute under which they were imposed. The trial record does not establish beyond a reasonable doubt that the offenses in the three counts occurred after the effective date of the statutory amendment increasing the penalty for the offenses.
The federal and state constitutions proscribe ex post facto laws. Both constitutions prohibit legislatures from retroactively increasing the punishment for a crime. The federal and state ex post facto laws are interpreted the same way.
U.S. Const., art. I, sec. 10
Cal. Const., art. I, sec. 9
Collins v. Youngblood (1990) 497 U.S. 37, 42–43
People v. Grant (1999) 20 Cal.4th 150, 158
People v. Snook (1997) 16 Cal.4th 1210, 1220
Ex post facto principles have been applied to the One Strike law and its amendments. Where the ex post facto clauses apply, it is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.
People v. Canales (2024) 106 Cal.App.5th 1230, 1259–1260
People v. Hiscox (2006) 136 Cal.App.4th 253, 256–262
People v. Riskin (2006) 143 Cal.App.4th 234, 244–245
An unauthorized sentence may also be corrected on appeal despite the absence of an objection below. A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case.
People v. Scott (1994) 9 Cal.4th 331, 354
When part of a sentence is stricken on review, a remand and full resentencing is generally appropriate so the trial court can exercise its sentencing discretion following the changed circumstances. However, when the trial court imposes the maximum possible sentence, there is no need to remand the matter for resentencing. Where there are no sentencing choices to restructure, it is appropriate to modify the sentence on appeal.
PEN 1260
People v. Buycks (2018) 5 Cal.5th 857, 893, 896 fn 15
People v. Lopez (2019) 42 Cal.App.5th 337, 342
People v. Francis (2017) 16 Cal.App.5th 876, 887
The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61(c). The only crime for which the defendant was convicted is identified in section 667.61(c)(8) and therefore, defendant’s convictions do not implicate the mandatory sentencing provision in section 667.61(i). By implication, section 667.61(i) leaves the decision to impose consecutive or concurrent terms on the nonspecified offenses to the sentencing court’s discretion under section 669.
PEN 667.61(i)
People v. Lopez (2022) 76 Cal.App.5th 287, 291
People v. Valdez (2011) 193 Cal.App.4th 1515, 1524
The defendant’s sentence on two firearm enhancements and one possession of an explosive device should have been imposed and stayed pursuant to Penal Code section 654. We modify the judgment accordingly.
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.
PEN 654
Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.
People v. Corpening (2016) 2 Cal.5th 307, 311
People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414
When a trial court sentences a defendant to separate terms without making an express finding the defendant entertained separate objectives, the trial court is deemed to have made an implied finding each offense had a separate objective. We review for substantial evidence a trial court’s implied finding that a defendant had separate intents and objectives for different offenses.
People v. Islas (2012) 210 Cal.App.4th 116, 129
People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414
In re L.J. (2021) 72 Cal.App.5th 37, 43
The sentences on each of three counts were based on his simultaneous possession of two completed assault rifles, and we assume that such possession can constitute two physical acts for the purposes of section 654. Even so, multiple punishment can be imposed consistent with section 654—on two of the three counts —only if substantial evidence in the record supports an implied finding that he had a separate objective in possessing one firearm versus the other. Our review of the record reveals no such evidence. Section 654 also prohibits multiple punishment for both possession of an explosive device and possession of ingredients to make an explosive device, because the explosives the defendant possessed were not actually capable of exploding, and thus identical evidence supported both counts. Both counts were based on the defendant’s possession of the ingredients in the box truck, at the same time and place, and under the same circumstances. Both counts were based on, essentially, the same course of conduct.
People v. Jones (2012) 54 Cal.4th 350, 358 [suggesting simultaneous possession of different items of contraband’ are separate acts for purposes of section 654]
In re L.J. (2021) 72 Cal.App.5th 37, 43
Because it is apparent from the sentence imposed that the sentence would be little changed as a result of remand, in the interests of judicial economy, and given that the parties agree on this remedy, we will modify the judgment to stay the sentences on counts 5 and 6 rather than remand for resentencing.
PEN 1260 [authority to modify unauthorized sentence]
People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [staying execution of the penalty imposed is the preferred remedy for section 654 error where the reduction in sentence would be relatively minor because in such cases, it would not serve the interests of justice or judicial economy to require remand]
People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [exercising authority to modify judgment to impose and stay sentence under section 654 rather than remand for resentencing that will not change defendant’s actual prison time]
The trial court erred in imposing three Life Without The Possiblity Of Parole (LWOP) sentences on each of the two murders, despite the jury having found true three special circumstances as to each murder.
The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more special circumstances has been found to be true. Multiple true special circumstance findings do not justify additional punishment.
PEN 190.2
People v. Montes (2014) 58 Cal.4th 809, 874 [defendant faced no additional punishment merely as a result of additional special circumstance true finding]
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.
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.
People v. Soto (2016) 245 Cal.App.4th 1219, 1234
Defendant is not subject to parole separately for the misdemeanor and is thus not subject to a parole revocation restitution fine on it.
People v. Holmes (2007) 153 Cal.App.4th 539, 547
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.]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
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.
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.
PEN 1172.75
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.
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
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.
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]
The trial court erred by imposing sentences for both counts 2 and 3 in violation of section 654.
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.
PEN 654
People v. Hester (2000) 22 Cal.4th 290, 294
People v. Latimer (1993) 5 Cal.4th 1203, 1207–1208
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.
People v. Jones (2012) 54 Cal.4th 350, 353
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.
PEN 654
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).
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.
People v. Fletcher (2025) 18 Cal.5th 576
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.
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.]
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.
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.
PEN 654
People v. Corpening (2016) 2 Cal.5th 307, 309
People v. Perez (1979) 23 Cal.3d 545, 551
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.
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]
A course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment.
People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11
People v. Kwok (1998) 63 Cal.App.4th 1236, 1253
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.
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.
PEN 654
People v. Harrison (1989) 48 Cal.3d 321, 335
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.
People v. Hester (2000) 22 Cal.4th 290, 295
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.
People v. Jones (2012) 54 Cal.4th 350, 353
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.
PEN 1260
People v. Alford (2010) 180 Cal.App.4th 1463, 1473