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March 12, 2026 Get Citation Alerts Download PDF Add Note

People v. Yu CA3

California Court of Appeal

• Citations: None known
• Docket Number: C102920

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.5K)

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Combined Opinion

Filed 3/12/26 P. v. Yu CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

THE PEOPLE, C102920

Plaintiff and Respondent, (Super. Ct. No. 62166376)

v.

ANTHONY YU,

Defendant and Appellant.

Defendant Anthony Yu appeals from his resentencing following remand from this
court. In his second appeal, defendant contends the trial court erred when it imposed the
full term for his attempted torture conviction (Pen. Code, §§ 664/206)1 and when it
imposed the full one-year weapon-use enhancement (§ 12022, subd. (b)(1)), on his
criminal threat conviction (§ 422, subd. (a)) instead of one-third the enhancement. He

1 Undesignated statutory references are to the Penal Code.

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also contends the trial court failed to calculate his credits for actual days in custody and
requests that we remand with instructions for the court to do so.
We agree the trial court erred when it imposed the full one-year term for the
enhancement and will modify the judgment to reflect a term of four months. Our review
of the record also disclosed an error in the abstract of judgment for fees imposed. We
will modify the judgment to correct the error. We will also order a limited remand for the
trial court to calculate defendant’s credits for actual days in custody and direct the court
to amend the abstract of judgment to reflect the corrected credits and fees.
I.
BACKGROUND
A discussion of the facts underlying defendant’s convictions is unnecessary. We
summarize only the facts pertinent to the sentencing issues he raises in this appeal.2
Following a jury trial, defendant was convicted on one count of attempted torture
(§§ 664/206), one count of assault with a deadly weapon (§ 245, subd. (a) (1)), two
counts of criminal threats (§ 422, subd. (a)), two counts of felony child abuse (§ 273a,
subd. (a)), assault with force likely to inflict great bodily injury (§ 245, subd. (a)(4), two
counts of misdemeanor child abuse (§ 273a, subd. (b)), one count of false imprisonment
(§ 236), two counts of attempt to dissuade a witness by force or threat (§ 136.1, subd.
(c)(1)), four counts of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(2)),
two counts of violating a protective order (§ 166, subd. (c)(1)(a)), two counts of lewd or
lascivious acts on a child under 14 (§ 288, subd. (a)), and three counts of forcible lewd or
lascivious acts on a child under 14 (§ 288, subd. (b)(1)). In connection with count four,
one of his criminal threat convictions, the jury found true that defendant personally used

2 On the court’s own motion, we incorporate by reference our unpublished opinion in
defendant’s prior appeal. (People v. Yu (Feb. 2, 2024, C096075) nonpub. opn..)

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a deadly or dangerous weapon, a knife. (§ 12022, subd. (b)(1)). The jury also found true
several other special allegations and aggravating circumstances. (Yu, supra, C096075.)
The trial court sentenced defendant to an aggregate term of 63 years 2 months.
(Yu, supra, C096075.) Defendant timely appealed.
In his first appeal, a different panel of this court reversed defendant’s convictions
on two counts of dissuading a witness from reporting a crime for insufficiency of the
evidence. This court also found that the trial court erred when it did not stay punishment
on four counts under section 654. With the exception of the two convictions that were
reversed, the judgment was affirmed and remanded so the trial court could exercise its
discretion under section 654. (Yu, supra, C096075.)
Resentencing on Remand
At resentencing, the trial court sentenced defendant to an aggregate term of 56
years. The court dismissed the two counts that this court reversed.
Based on section 654, the court stayed the sentences on four of defendant’s
convictions: two convictions for felony child abuse, a conviction for assault with a
deadly weapon, and a conviction for assault with force likely to inflict great bodily injury.
The court selected the attempted torture conviction, count one, as the principal term and
imposed the middle term of seven years. The remaining sentences and enhancements
were left in place.
Defendant timely appealed.
II.
DISCUSSION
In this appeal, defendant raises three issues. He contends that under section
1170.1, the consecutive seven-year sentence for count one should be modified to one-
third the seven-year term instead of the full term. Defendant makes the same argument
regarding the one-year weapon-use enhancement for count four, contending it should be
modified to four months. Finally, he contends that, at resentencing, the trial court erred

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when it did not calculate his credits for actual days in custody and asks us to remand with
directions for the court to do so.
The People agree with defendant in part. Specifically, they agree that the use of a
weapon enhancement should be modified to four months or one-third the term and the
trial court erred when it did not calculate defendant’s credits for actual days in custody
between his original sentencing and resentencing. They disagree, however, that
defendant’s sentence for count one should be modified. Under section 1170.1, they argue
the court was required to impose the full middle term of seven years on that count
because it was the principal term. We conclude the People have the better argument.
A.
Unauthorized Sentence
“A sentencing court has a duty to impose the punishment prescribed by law
[citation], and has no discretion to deviate from the statutorily specified penalty.”
(People v. Martinez (2015) 240 Cal.App.4th 1006, 1012, citing § 12.) When the trial
court has imposed a sentence that “ ‘could not lawfully be imposed under any
circumstance in the particular case,’ ” it has imposed an unauthorized sentence that must
be corrected even if raised for the first time on appeal. (People v. Anderson (2020)
9 Cal.5th 946, 962.)
Section 12022, Subdivision (b) Enhancement
The parties agree the trial court erred when it imposed the full one-year
enhancement for use of a knife on count four. We concur.
Defendant was convicted of two or more felonies. Section 1170.1, subdivision (a)
required the trial court to select a principal term and designate the terms for his other
convictions as subordinate terms. (People v. Nguyen (1999) 21 Cal.4th 197, 202.) The
conviction carrying the greatest term of imprisonment is designated the principal term.
(Ibid; § 1170.1, subd. (a).) For the conviction designated as the principal term, the court

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must impose the full term. (Nguyen, at p. 202.) Subordinate terms and their applicable
enhancements receive one-third of the middle term. (Ibid.)
Here, at resentencing, the trial court designated count four as a subordinate term
and imposed one-third the middle term. In doing so, section 1170.1, subdivision (a)
required the court to impose one-third of the term for any enhancement applicable to that
count. The applicable enhancement was the one-year enhancement under section 12022,
subdivision (b)(1), which means the trial court was required to impose only four months.
(§ 1170.1, subd. (a).) Instead, it imposed the full one-year enhancement which was error.
Accordingly, we modify the judgment to impose a term of four months for the
section 12022, subdivision (b)(1) enhancement on count four.
Section 1170.1 Principal Term
In his opening brief, defendant argued that the trial court erred in imposing a full
middle term on count one, the attempted torture conviction, because it had already
designated count twenty-five, one of defendant’s three convictions for forcible lewd acts
on a child, as the principal term. The trial court, therefore, was required to impose one-
third the middle term for count one. After reviewing People v. Pelayo (1999)
69 Cal.App.4th 115, defendant appears to concede that count one is the proper principal
term under section 1170.1, subdivision (a). He contends, however, that the trial court did
not state at resentencing that it selected count one as the principal term and the amended
abstract does not reflect that it did so.
Although the court did not use the phrase “principal term,” it was evident from its
imposition of the full term that it designated count one as the principal term under section
1170.1, subdivision (a). That selection was proper because this conviction had the
greatest term of imprisonment among the convictions to which section 1170.1 applied.
As the People point out, section 667.6, subdivision (d) “removes the trial court’s
discretion to impose a more lenient sentence under section 1170.1” where a defendant
commits “two or more violent sex crimes . . . against more than one victim or . . . against

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the same victim on more than one occasion.” (People v. Pelayo, supra, 69 Cal.App.4th at
p. 124.) Therefore, the court could not designate any of defendant’s three convictions for
forcible lewd acts against a child under 14 as a principal or subordinate term under
section 1170.1, subdivision (a). (Pelayo, at p. 124.) Because his conviction for count
one had the greatest term of imprisonment, it was the only choice from the remaining
convictions. (§§ 667.6, subd. (d), 1170.1, subd. (a).)
We conclude the trial court did not err when it imposed the full middle term of
seven years on count one, and the amended abstract of judgment accurately reflects the
full term imposed on that count.
B.
Custody Credits
The parties agree the trial court erred when it failed to calculate and award
defendant credits for his actual days in custody from the day after he was originally
sentenced up to and including the date of his resentencing. We agree with the parties.
Section 2900.1 “specifies that when a sentence is modified while in progress, the
‘time’ already served ‘shall be credited upon any subsequent sentence [the defendant]
may receive upon a new commitment for the same criminal act or acts.’ ” (People v.
Buckhalter (2001) 26 Cal.4th 20, 37.) “[H]aving modified defendant’s sentence on
remand, [the trial court] was obliged, in its new abstract of judgment, to credit him with
all actual days he had spent in custody, whether in jail or prison, up to that time.” (Ibid.)
Here, the trial court erred when it did not calculate defendant’s credits for his
actual days in custody from the day after it originally sentenced him up to and including
the day it resentenced him. (People v. Buckhalter, supra, 26 Cal.4th at p. 37.) We
remand with instructions for the trial court to calculate defendant’s credits for his actual
days in custody and amend the abstract of judgment to reflect those calculations.

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C.
Abstract of Judgment
The jury convicted defendant on 23 counts. At defendant’s original sentencing,
the trial court imposed a $30 facilities assessment (Gov. Code, § 70373) and a $40 court
operations assessment (§ 1465.8) for each conviction. On remand, the court dismissed
counts seventeen and twenty-one, the two convictions this court reversed on appeal,
leaving 21 convictions. The trial court failed to amend the assessments, leaving 23 of
each assessment rather than 21 to reflect the new number of convictions.
We may order the correction of abstracts of judgment that do not accurately reflect
the oral pronouncements of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181,
185.) We may also correct assessments that do not involve a discretionary sentencing
choice and result in an unauthorized sentence. (See People v. Smith (2001) 24 Cal.4th
849, 854.) Therefore, we direct the trial court to correct the abstract of judgment so that
it accurately reflects the $30 facilities assessments and the $40 court operations
assessments for defendant’s remaining 21 convictions. (Mitchell, at pp. 185-186.) In the
interest of judicial economy, we make the corrections without having requested
supplemental briefing. A party claiming to be aggrieved by this procedure may petition
for rehearing. (Gov. Code, § 68081.)
III.
DISPOSITION
We modify the judgment to reflect a term of four months for the section 12022,
subdivision (b) enhancement on count four, and order the trial court to correct the
abstract of judgment to reflect the modified sentence. We also modify the judgment to
reflect the court operations assessment and the facilities assessment for defendant’s 21
convictions and order the trial court to correct the abstract of judgment to reflect the
accurate fees. We order a limited remand for the trial court to calculate defendant’s

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credits for his actual days in custody and amend the abstract of judgment to reflect that
calculation. In all other respects, the judgment is affirmed.

/s/
WISEMAN, J.

We concur:

/s/
EARL, P. J.

/s/
DUARTE, J.

 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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