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Recurring Guilty Plea Issues: Sentencing, Custody Credits, Fines & Disabilities – Where Did All the Objections Go?

Updated as of 8/1/08

 

A. Probation

1. Denial of Probation Under Wrong Standard. This is a recurring error in sex cases. The court erroneously rules the defendant is completely ineligible for probation or only eligible under unusual circumstances; in fact, the ineligibility must be pled and proved under certain statutes. (See e.g., Pen. Code, §§ 667.61, subds. (h) & (j),1203.075). If defense counsel did not raise the error, it may be necessary to allege ineffective assistance of trial counsel, depending on how much the error rests on trial counsel's omission.

2. Unconstitutional Conditions of Probation. In People v. Welch (1993) 5 Cal.4th 228, the California Supreme Court held that a defendant’s failure to object and make an offer of proof at the sentencing hearing concerning probation conditions forfeits the claim on appeal. (Id. at p. 235.) But in In re Sheena K. (2007) 40 Cal.4th 875, the Court declined to apply the Welch forfeiture rule to a facial constitutional challenge made on the ground of vagueness and overbreadth. (Id. at pp. 885-892 [the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on “facial constitutional defects” that do “not require scrutiny of individual facts and circumstances”].)

Challenges to conditions limiting freedom of association and travel are made on grounds of overbreadth, vagueness or unjustified by the circumstances. (People v. Lopez (1998) 66 Cal.App.4th 615 [proscription against association with gang members, and possession of gang indicia, modified by adding a requirement of knowledge]; In re Kacy S. (1998) 68 Cal.App.4th 704.)

Mandatory drug testing has been challenged where there is no indication of a substance abuse problem. (People v. Keller (1978) 76 Cal.App.3d 827, 832.)

3. Unreasonable Conditions of Probation. If the error does not invoke significant constitutional protections, and there was no objection below, the appellate attorney will have to consider raising an issue of ineffective assistance of counsel. (Query: if the condition is unreasonable and burdensome, would not it be easier and more expeditious to seek modification of the condition in the trial court?)

4. Costs of Probation. Because ability to pay issues may be deemed forfeited absent objection in the trial court, (see e.g., People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072 [defendant waived right to challenge failure to make an express determination or hold formal hearing on his ability to pay probation costs where he did not object in trial court]), appellate attorneys are backing up such claims with contentions of ineffective assistance of trial counsel (cf., People v. Klockman (1997) 59 Cal.App.4th 621, 628 [record showed tactical purpose of defense counsel in agreeing to attorney fee order of $500 to avoid risk of greater award]). However, it is still arguable that the ability to pay requirement is mandated. So, any deviation by the trial court is unauthorized, and it may not be necessary to reach the issue of ineffective assistance of counsel. Additionally, it may not be necessary to reach the issue of ineffective assistance of counsel to the extent the issue can be framed as one of insufficiency of the evidence. “‘Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception.’ [Citation.] This principle of appellate review is not limited to judgments….” (People v. Butler (2003) 31 Cal.4th 1119, 1126, fn. omitted.) While the determination of ability to pay may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)

A defendant cannot be ordered to pay probation costs as a condition of probation. (See People v. Bradus (2007) 149 Cal.App.4th 636, 640-643; People v. Hart (1998) 65 Cal.App.4th 902, 907; People v. Washington (2002) 100 Cal.App.4th 590.) “These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay.” (Id. at p. 592.) Accordingly, a defendant can challenge at any time a probation condition that requires the defendant to pay fees related to probationary costs.

 

B. Traditional Sentencing Choice Issues Under ISL and DSL

1. Problems with Stipulations and Forfeiture of Appeal. Sentencing issues in guilty plea cases tend to be the same as in jury trial cases except a stipulated specific sentence bars a party from raising an appellate challenge to that sentence. (People v. Couch (1996) 48 Cal.App.4th 1053, 1057.)

Where the defendant agrees to a specified sentence, lack of objection to the sentence for violating Penal Code section 654 forfeits the issue on appeal per California Rules of Court, rule 4.412(b) (formerly rule 412(b)). (People v. Hester (2000) 22 Cal.4th 290, 293.) NOTE: HESTER WAS A SIGNIFICANT CHANGE IN THE LAW!!

 This passage from Hester outlines the difference between an unauthorized sentence which can be corrected at any time without objection and a sentence to which counsel must raise an objection in the trial court or face waiver on appeal:

The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. (People v. Couch (1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123; see In re Griffin (1967) 67 Cal.2d 343, 347-348.) While failure to object is not an implicit waiver of section 654 rights, acceptance of the plea bargain here was. "When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain." (People v. Couch, supra, 48 Cal.App.4th at p. 1057.) Rule 412(b) and section 654 are, therefore, not in conflict. In adopting the rule, the Judicial Council merely codified one of the applications of the case law rule that defendants are estopped from complaining of sentences to which they agreed. (People v. Hester, supra, 22 Cal.4th at p. 295.)

Assuming the issue is not barred on appeal under Hester, supra, 22 Cal.4th 290, and principles of estoppel, the appellant may need a certificate of probable cause to challenge an unlawful sentence on appeal unless the appellant reserved the right to raise that issue in the plea bargain. The necessity of certificates of probable cause to challenge an unlawful sentence are discussed in a separate training article available.

2. Perennial Scott Forfeiture Problems. After the decision in People v. Scott (1994) 9 Cal.4th 331, requiring an objection in the trial court, discretionary sentencing issues are seldom challenged on appeal. However, the following methods of avoiding Scott forfeiture should be examined in every case:

  • People v. Williams (1998) 17 Cal.4th 148, fn. 6, holds that Scott does not bar the court from reaching the issue, only the party from raising it.
  • People v. Superior Court (Dorsey) (1997) 50 Cal.App.4th 1216, 1224, provides that a party does not waive an objection under Scott when there was no meaningful opportunity to object. This exception may apply when a discretionary sentencing factor is discussed by the court for the first time in pronouncing the sentence, and no notice was given by the probation report, statement in aggravation or notice of intended decision. (See People v. Scott, supra, 9 Cal.4th at p. 359, Kennard, J., dissenting opn. re "tentative" decision.)
  • Interpretation of a sentencing scheme, previously in dispute, when the matter was not litigated in the trial court may be an exception to the waiver rule, e.g., the "silent record" problem. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497; People v. Fuhrman (1997) 16 Cal.4th 930, 945; People v. Rodriguez (1998) 17 Cal.4th 253.)
  • d. Arguing ineffective assistance of counsel is the most effective method for raising a sentencing issue that was not the subject of an objection in the trial court. (People v. Cropper (1979) 89 Cal.App.3d 716; People v. Cotton (1991) 230 Cal.App.3d 1072.)

Researching a claim of ineffective assistance of counsel should always begin with a call or letter to the trial attorney to determine if there was a tactical reason for the error. Sometimes the sentencing error appears unambiguously on the record on appeal and there appears to be no conceivable reasonable tactical basis for trial counsel's failure to object. HOWEVER, the call or letter asking trial counsel why the objection was not made should still precede raising the issue on appeal because often information critical to trial counsel's decision does not appear on the record for other more subtle tactical reasons. ALWAYS CHECK WITH TRIAL COUNSEL!

 

C. Strikes Law

1. Insufficient Proof of Priors. Typically, there has been a guilty plea on the underlying charge, but the prior has been contested by trial or a motion to strike, e.g., insufficient evidence that Penal Code section 245, subdivision (a)(1) conviction qualifies as a serious felony or strike prior because there is insufficient proof that the defendant used a weapon or personally inflicted great bodily injury in committing the offense. (See People v. Banuelos (2005) 130 Cal.App.4th 601, 605 [“a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. [Citations.]”]; People v. Delgado (2008) 43 Cal.4th 1059; see also People v. Guerrero (1988) 44 Cal.3d 343, 345, 355-356 [in determining the nature of a prior conviction, a court “may look to the entire record of the conviction[,]” which includes the accusatory pleading and defendant’s plea of guilty or nolo contest]; People v. Trujillo (2006) 40 Cal.4th 165, 180 [a defendant’s statement reflected in a probation officer’s report may not be used to prove an alleged prior conviction was a serious felony]; see also Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] [double jeopardy does not apply to strike prior convictions]; see also People v. McGee (2006) 38 Cal.4th 682, 706 [consistent with Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], a trial court may determine “the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony”].)

2. Prior Not on the List. "Three Strikes" invokes a list of offenses as they existed on July 1, 1993. (People v. Nava (1996) 47 Cal.App.4th 1732.) Thereafter, Proposition 21 added additional offenses to that list. Proposition 21 took effect on March 8, 2000. If the offense being prosecuted occurred after the effective date of Three Strikes but before March 8, 2000, a prior conviction can be used as a strike only if it is on the list of offenses as it existed on July 1, 1993. (See People v. James (2001) 91 Cal.App.4th 1732, 1735; People v. Nava, supra, at p. 1732.)

3. Unconstitutional Priors. People v. Allen (1999) 21 Cal.4th 424 affirmed that People v. Sumstine (1984) 36 Cal.3d 909 survives Custis v. United States (1994) 511 U.S. 485 [114 S.Ct. 1732, 128 L.Ed.2d 517] in which the United States Supreme Court held the federal Constitution does not authorize a criminal defendant to move in the trial court to strike an alleged prior state felony conviction unless he or she was denied the right to counsel in the prior proceeding. (BUT see Lackawanna County District Attorney v. Coss ( 2001) 532 U.S. 394 (121 S.Ct. 1567, 149 L.Ed.2d 608), [Federal postconviction relief is not available when a prisoner challenges a current sentence on the ground that it was enhanced based on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody].)

However, the Sumstine motion to strike procedure is available only to challenge those prior felony convictions suffered after In re Tahl (1969) 1 Cal.3d 122 was decided, to wit, November 7, 1969 [Query whether the court means from the date Tahl was decided or the date the decision became final (December 7, 1969)?]

4. Juvenile Priors Not on the "707" List. Under the provisions of the "Three Strikes" law certain prior juvenile adjudications qualify as "strikes" (Pen. Code, §§ 667, subd. (d)(3), 1170.12, subd. (b)(3)). Does a prior juvenile adjudication for an offense that would qualify as a prior felony conviction (a "strike") if it were the subject of an adult conviction (Pen. Code, §§ 667, subd. (d)(1), (2), 1170.12, subd. (b)(1), (2)) if the offense is not listed in Welfare and Institutions Code section 707, subdivision (b)? In People v. Superior Court (Garcia) (1999) 21 Cal.4th 1, the California Supreme Court concluded such a prior adjudication does qualify as a strike if in the prior juvenile proceeding, "[t]he juvenile was adjudged a ward of the juvenile court ... because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code." (Pen. Code, §§ 667, subd. (d)(3)(D), 1170.12, subd. (b)(3)(D).)

The question of whether a prior juvenile adjudication of a criminal offense in California can constitutionally subject a defendant to the provisions of the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), although there is no right to a jury trial in juvenile wardship proceedings in this state, is on review in People v. Nguyen (2007) 152 Cal.App.4th 1205, rev. granted 10/10/07 (S154847/H028798).

To challenge the "strike" finding on appeal, trial counsel must do so in the trial court AND if the current conviction is based on a guilty plea, trial counsel must file a statement of probable cause within 60 days of the rendition of judgment in order to obtain a certificate of probable cause.

5. Improper Doubling on "Two Strikes". For second strike defendants being sentenced to consecutive determinate terms, one-third of the middle term of the consecutive term is doubled; in other words, the two strike sentencing provision incorporates the principal term/subordinate term methodology of Penal Code section 1170.1. (People v. Nguyen (1999) 21 Cal.4th 197.)

6. Improper Calculation of Terms on Multiple Consecutively Imposed Three Strikes Cases. People v. Jefferson (1999) 21 Cal.4th 86 [attempted premeditated murder; § 3046 sets minimum of 7 years for "life term" doubled]; People v. Garcia (1999) 20 Cal.4th 490 [court can strike prior as to some but not as to other current charges]; People v. Hendrix (1997) 16 Cal.4th 508 [construing § 667, subds. (c)(6) and (7) - "same occasion" language]; People v. Deloza (1998) 18 Cal.4th 585; People v. Lawrence (2000) 24 Cal.4th 219 [construing § 667, subds. (c)(6) & (7) - "same set of operative facts" language], and numerous other cases.

7. Abuse of Discretion in Not Striking a Strike. In People v. Carmony (2004) 33 Cal.4th 367, the California Supreme Court held a court?s failure to dismiss or strike a prior conviction allegation under Penal Code section 1385 is subject to review under the deferential abuse of discretion standard.

8. Abuse of Discretion in Penal Code Section 17(b) (Wobbler) Determination. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968.)

 

D. Custody Credits

1. When Appealable. Under section 1237.1 and People v. Fares (1993) 16 Cal.App.4th 954, a custody credit issue may NOT be raised on appeal until it has been presented to the trial court (whether at the sentencing hearing or in a subsequently filed formal/written Fares motion, if required by the trial court). (People v. Clavel (2002) 102 Cal.App.4th 973.) An exception is when there already is another issue raised on appeal other than the credits issue, it is economical to raise the credits issue on appeal, since the appellate court will have to issue an opinion on the merits anyway. (People v. Acosta (1996) 48 Cal.App.4th 411.) Under these circumstances, the Court of Appeal may, but is not required to, address the credits issue. (People v. Mendez (1999) 19 Cal.4th 1084, 1093.)

2. When a Fares Motion Should Be Filed. When the calculation error has not been presented to the trial court, the defendant must pursue a Fares motion as a predicate to urging the error on appeal. It must be first "formally" presented in the trial court. (People v. Clavel (2002) 102 Cal.App.4th 973.)

 Perhaps the strongest reason to pursue a Fares motion even when the credits issue may be pursued on appeal is when the client received a short or moderate length sentence and will serve his or her time by the time the remittitur issues. The Fares motion may be the only way to modify the credits before the sentence is served.

Read our procedures article on how to do a Fares motion: Ramblings & Ruminations on Fares Motions.

3. Case in Point: Bruner Issues. There are a surprisingly large number of cases which satisfy the limitations set forth in People v. Bruner (1995) 9 Cal.4th 1178, that is, the defendant is entitled to custody credit for presentence time when he or she also had a parole hold pending on a violation arising out of the same conduct. A problem arises where the criminal charges were pending at the same time several parole violations were charged, but the parole violation involves conduct additional to that charged in the criminal case. Later, either: 1) all of the parole violations were dismissed, or 2) the parole violations unrelated to the criminal case were dismissed. The client is probably entitled to additional credit, but the issue cannot be raised on appeal because the crucial facts occurred after judgment and sentence were imposed, and are not of record. In one case, a Fares motion prevailed in such a situation. In another case, an appellate contention raised on the same point asking the appellate court to take judicial notice of parole board activity was procedurally defaulted. Trial counsel should follow up for the defendant in the trial court.

4. When a Fares motion is not needed: If the trial court has imposed the wrong law in denying custody credits, then the issue is not a matter of calculation and may be brought to the attention of the appellate court without going to the trial court first. Under these circumstances, the error is a matter of law and it would be futile to go back to the trial court who has already made its understanding of the law clear on the record, albeit it is an erroneous understanding.

 An example is when the trial court refuses to grant appellant any custody credits to one convicted of a murder committed on or before June 2, 1998, because Penal Code section 2933.2 did not take effect until June 3, 1998 when the voters passed Proposition 222 modifying the credit provisions of Penal Code section 190, also enacted by voter initiative. (See People v. Cooper (2001) 27 Cal.4th 38, 41, fn. 3 citing with approval People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139.)

 

E. Common Issues With Fines, Restitution, and Assessments

1. Unauthorized Fine or Restitution. The statute should always be consulted to see if the purported fine or restitution is in fact authorized. Occasionally, the court purports to impose an "administrative fee" that is completely unauthorized. While an unauthorized sentence or fine can be challenged at any time without an objection in the trial court, it is prudent to object since the appellate courts are not uniform on their interpretation of what is and is not "authorized."

Payment of restitution to insurance companies for their payment to victims. (People v. Birkett (1999) 21 Cal.4th 226 [Pen. Code, § 1203.04 (1994 version) authorizes restitution to "direct victims"only, not insurers].

The restitution fine under Penal Code section 1202.4 is mandatory unless the sentencing court, in the words of the statute, "finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Pen. Code, § 1202.4, subd. (b).) In cases in which the court imposes a restitution fine, imposition of a parole revocation fine in the same amount is mandatory. (Pen. Code, § 1202.45.)

People v. Tillman (2000) 22 Cal.4th 300 held the prosecution's failure to speak up when the trial judge forgets to impose the restitution fine under Penal Code section 1202.4 bars correcting the omission on appeal because per Scott imposing the restitution fine is discretionary with the trial court when it states on the record reasons not to impose the fine. However, the parole revocation fine under Penal Code section 1202.45 is mandatory – no discretion is involved. Therefore, in People v. Smith (2001) 24 Cal.4th 849, the court held failing to impose the mandatory parole revocation fine is correctable on appeal without an objection from the prosecution in the trial court.

2. Ex post facto violations. A fine may not be imposed in connection with conduct occurring before the statute's operative date. (See People v. Callejas (2000) 85 Cal.App.4th 667 [parole revocation fine under Penal Code section 1202.45]; People v. Batman (2008) 159 Cal.App.4th 587 [DNA penalty assessments under Government Code section 76104.6]; People v. High (2004) 119 Cal.App.4th 1192 [state surcharge under Penal Code section 1465.7 and construction fee under Government Code section 70372].)

The court security fee under Penal Code section 1465.8 does not implicate ex post facto principles because it is not punitive in nature. (People v. Alford (2007) 42 Cal.4th 749; People v. Wallace (2004) 120 Cal.App.4th 867.)

 3. Increased Restitution Upon Remand or Violation of Probation.  The California Supreme Court has held California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing (People v. Henderson (1963) 60 Cal.2d 482, 495-497), and a statutorily mandated restitution fine comes within this rule since such fines constitute punishment. and find no principled basis for excluding them from the rationale of Henderson. Accordingly, trial counsel must object on double jeopardy grounds if a trial court increases a defendant's restitution fine on resentencing. (People v. Hanson (2000) 23 Cal.4th 355.)

Also, the trial court is without jurisdiction to again impose the restitution fine at all upon revocation of probation. This is viewed as an attempt to impose a second fine, which is unauthorized. (People v. Chambers (1998) 65 Cal.App.4th 819.)

4. Excessive Restitution. A restitution fine may be within the statutory range but excessive under the circumstances. In People v. Gibson (1994) 27 Cal.App.4th 1466, the Third District held the issue may not be raised on appeal without objection in the trial court. Appellate counsel should consider raising ineffective assistance of counsel if a contention of "inability to pay" had a reasonable probability of success had the objection been raised.

5. Assessments. Fines and fees has become an increasingly complex area, ripe with both issues and possible adverse consequences. For discussions of issues involving assessments, see People v. Taylor (2004) 118 Cal.App.4th 454, People v. McCoy (2007) 156 Cal.App.4th 1246, 1257, People v. Allen (2001) 88 Cal.App.4th 986, 992-993, and People v. Martinez (1999) 73 Cal.App.4th 265.

The court facilities construction penalty under Government Code section 70372, subdivision (a), must be reduced depending on circumstances that vary among the counties. (See Gov. Code, § 70375; Taylor, supra, 118 Cal.App.4th at p. 460; McCoy, supra, 156 Cal.App.4th at pp. 1252-1256).

Currently, a common issue is the court’s failure to specify on the abstract of judgment the statutory bases for the components of the penalty assessments. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)

A court security fee under Penal Code section 1465.8 is assessed for each conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) However, it cannot be imposed for juvenile adjudications of wardship because they are not “criminal convictions.” (Egar v. Superior Court (2004) 120 Cal.App.4th 1306, 1308-1309.)

 

F. Disabilities, Attorneys Fees, Etc.

1. Statutorily Unauthorized Disabilities. Quite often a Penal Code section 290 registration or an AIDS testing requirement under Civil Code section 1202.1 can be set aside if the particular offense charged does not in fact trigger the disability. (See e.g. People v. Jillie (1992) 8 Cal.App.4th 960, 963; see also People v. Butler (2003) 31 Cal.4th 1119, 1127-1129.) This may create an interesting enforcement problem, especially if the blood sample was already taken under the AIDS testing order.

2. Disabilities That Were Not the Subject of a Plea Advisement. Often the defendant is without appellate remedy unless the record indicates the significance of the disability within the plea bargain. (People v. McClellan (1993) 6 Cal.4th 367, 378; see also People v. Crandell (2007) 40 Cal.4th 1301.)

3. Attorneys Fees Imposed Without Showing of Ability to Pay. In the past, this issue could be raised even without an objection in the trial court, as the courts were willing to find the order unauthorized by Penal Code sections 987.8 or 987.81. Recently, these issues have been addressed more often on the merits when it is alleged that the trial attorney was ineffective in not questioning the defendant's ability to pay. (But see People v. Viray (2005) 134 Cal.App.4th 1186, 1216 [“We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees”].)

To the extent the challenge can be couched in terms of insufficiency of the evidence to support the order, the issue should be reviewable absent an objection in the trial court. (See People v. Butler (2003) 31 Cal.4th 1119, 1126, quoting Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [“ ‘Generally, points not urged in the trial court cannot be raised on appeal. … The contention that a judgment is not supported by substantial evidence, however, is an obvious exception’ ”]; see also Viray, supra, 134 Cal.App.4th 1186 [reversing an order for attorneys fees which was unsupported by evidence that the amount requested by the public defender represented the actual costs to the county of the services provided to the defendant].)

 

G. Recurring Adverse Consequences Related to Sentences Imposed in Guilty Plea Cases

The following are the most common adverse consequences seen in recent years, and the client should be advised of their potential in any case in which they appear likely:

 1. The clerk's minutes do not show the reason why the court struck the prior under Penal Code section 1385. (People v. Williams (1998) 17 Cal.4th 148, 161-162.)

 The question of whether an appellate court must automatically reverse a trial court’s order striking enhancements pursuant to Penal Code section 1385 because the trial court, although it stated its reasons for dismissal on the record, failed to enter the reasons upon the minutes, or can the error be found harmless, is currently on review in People v. Bonnetta (2007) 156 Cal.App.4th 1315, rev. gr. 3/12/08 (S159133/A115732).

 2. The court struck a prior prison term based on the same conviction as a strike prior to avoid multiple punishment/dual use of facts. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1138-1139; People v. Dotson (1997) 16 Cal.4th 547, 555; but see People v. Jones (1993) 5 Cal.4th 1142 [§ 667, subd. (a)(2) means "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667, subd. (a) enhancement, the greatest enhancement, but only that one, will apply." (Id. at p. 1150.)].) Therefore, the one-year punishment for a prior prison term enhancement under Penal Code section 667.5, subdivision (b) that is based on the same prior felony conviction alleged under section 667, subdivision (a)(1), should be stricken and the five-year enhancement imposed in addition to it being used as a "strike" to double or triple punishment. (People v. Dotson, supra, 16 Cal.4th at p. 555.)

3. The court failed to impose sentence on certain convictions or enhancement allegations found true by the jury (such as misdemeanor counts and prior prison term findings).

4. The court imposed full good time and work time credits in a case in which Penal Code section 2933.1 limited such credit to 15 percent.

5. The court failed to impose and stay, pending successful completion of parole, a restitution fine under Penal Code section 1202.45 in the same amount as that imposed under section 1202.4.

6. The court failed to impose other statutorily required fines, fees and disabilities.

 

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