Tag Archives: Unauthorized sentence

Sentencing

Case 000686

Posted on by Gary McCurdy

Error and/or relief

It was error to impose sentence on both the murder and the burglary. Because the court has discretion to choose which sentence to execute and which to stay, the matter is remanded.

First Holding:

Section 654 precludes multiple punishments for an indivisible course of conduct. For example, when a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes. A claim of error under section 654 is nonwaivable.

Authority:

PEN 654

People v. Centers (1999) 73 Cal.App.4th 84, 98

People v. Islas (2012) 210 Cal.App.4th 116, 130

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Here, murder was the felony underlying the prosecution’s burglary theory, so the trial court erred by imposing consecutive sentences for both crimes. Because the trial court has discretion to decide which sentence should be stayed, remand is required.

Authority:

PEN 654

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

Abstracts and Minutes, Sentencing

Case 000670

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of one count of felony vandalism and one count of misdemeanor vandalism. The court purported to sentence the defendant to a total of three years, with appellant ordered to serve 270 days in county jail and the balance of the three years time on mandatory supervision (a “split sentence”). This was error, because the concept of split sentence applies to felonies only, and the misdemeanor was not subject to mandatory supervision.

First Holding:

Under the Realignment Act, qualifying low-level felony offenders no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer. Pursuant to section 1170(h)(5)(B), the court has discretion to impose a hybrid sentence consisting of county jail followed by a period of mandatory supervision. This option is only available for felony convictions.

Authority:

PEN 1170(h)

People v. Scott (2014) 58 Cal.4th 1415, 1418-1419

People v. Catalan (2014) 228 Cal.App.4th 173, 178

Second Holding:

As reflected in the court’s oral pronouncement and the corresponding minute order, the court “split” the total three-year sentence for both counts, imposing 270 days of jail time and the balance as mandatory supervision.

While respondent points to the subsequent nunc pro tunc order purporting to place appellant on two years of formal probation, a nunc pro tunc order is generally limited to correcting clerical errors and cannot declare that something was done that was not done.

The record indicates that at least some portion of the court’s order imposing mandatory supervision applied to the misdemeanor conviction. As mandatory supervision under section 1170(h)(5)(B) is only applicable to felony convictions, we must remand for resentencing.

Authority:

PEN 1170(h)

People v. Borja (2002) 95 Cal.App.4th 481, 485

Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256

Fines and fees, Sentencing

Case 000667

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, it was error to reimpose the restitution fine (as it was more than 10 years old) and to impose various fees that were not enacted until after the defendant was originally sentenced.

First Holding:

A restitution fine cannot be re-imposed more than 10 years after initially imposed.

Authority:

PEN 1465.9(d) [setting a 10-year limit as to the date of imposition of a restitution fine pursuant to section 1202.4]

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038, on another issue

Second Holding:

The assessment and fee did not become law until after defendant’s 1996 sentencing, and thus cannot be imposed.

Authority:

People v. Alford (2007) 42 Cal.4th 749, 754 [applying section 1465.8 only to convictions imposed after its operative date of August 17, 2003]

People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001 [applying Government Code section 70373 only to convictions after its effective date of January 1, 2009]

Sentencing

Case 000651

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to impose a term of 25 years to life for the murder (doubled to 50 years to life because of a prior strike) and two terms oflife without the possiblity of parole (LWOP) for the murder because of true findings on two separate special circumstance, even though the court stayed the 50 years to life term and one of the LWOP terms.

First Holding:

Once a defendant has been found guilty of first degree murder and an accompanying special circumstance allegation under section 190.2 has been found true, the penalty is death or imprisonment in the state prison for life without the possibility of parole. A special circumstance finding removes the possibility of penalty less than life without parole. Thus, the trial court’s imposition and stay of the 50-years-to-life sentence on the murder count was unauthorized and must be stricken.

Authority:

PEN 190.2(a)

People v. Noble (1981) 126 Cal.App.3d 1011, 1016

Second Holding:

Appellate court can correct a legal error resulting in an unauthorized sentence at any time.

Authority:

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13

Third Holding:

The defendant should not have received two life without parole sentences based on the two special circumstance findings. Under section 190.2(a), a defendant is sentenced to death or life imprisonment without parole if one or more of the enumerated special circumstances has been found true. Defendants do not receive additional punishment based on additional special circumstance findings.

Authority:

People v. Montes (2014) 58 Cal.4th 809, 874 [a defendant faces no additional punishment merely as a result of additional special circumstance finding]

Duty of the court, Sentencing

Case 000640

Posted on by Gary McCurdy

Error and/or relief

The court erred by staying the sentence on the vandalism and first degree residential burglary counts without first imposing a sentence, and we therefore remand to the court to impose a sentence on these counts.

First Holding:

When a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence and to stay the execution of the duplicative sentence. 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.

This procedure ensures that the defendant will not receive a windfall of freedom from penal sanction if the conviction on which the sentence has not been stayed is overturned. Thus, it is improper to impose no sentence or to stay imposition of the sentence. Under section 654, a court’s failure to impose a sentence before staying it results in an unauthorized absence of sentence.

Authority:

PEN 654

People v. Mani (2022) 74 Cal.App.5th 343, 380

People v. Alford (2010) 180 Cal.App.4th 1463, 1472