Serrato exception (California) · Go Syfert
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Serrato exception in California

13 California opinions name it 1 courts 1990–2026 8 in the last five years

The cases below were cited by California courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (11)

CaseFollowedCited
People v. Torresgreen
calctapp · 2008 · cited in 4 California opinions naming this issue, 2020–2023
2 sentences

2023In the court’s view, Price was inapplicable because the case as a whole fell within the Serrato exception for unauthorized or unlawful sentences. 6 (Craig, at p. 1450; see also People v. Burbine (2003) 106 Cal.App.4th 1250 [citing Craig in holding that a defendant can receive the same aggregate prison term upon resentencing for a multi-victim felony conviction even where one count was reversed on appeal; any sentence permitted under the applicable statutes and rules may be imposed on remand, subject only to the limitation that the original aggregate prison term could not be increased].) A fina

2023In the court’s view, Price was inapplicable because the case as a whole fell within the Serrato exception for unauthorized or unlawful sentences. 6 (Craig, at p. 1450; see also People v. Burbine (2003) 106 Cal.App.4th 1250 [citing Craig in holding that a defendant can receive the same aggregate prison term upon resentencing for a multi-victim felony conviction even where one count was reversed on appeal; any sentence permitted under the applicable statutes and rules may be imposed on remand, subject only to the limitation that the original aggregate prison term could not be increased].) A fina

24
People v. Serratogreen
cal · 1973 · cited in 3 California opinions naming this issue, 1998–2026
2 sentences

2026The Serrato court concluded that “when a trial court pronounces an unauthorized sentence,” “[s]uch a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, supra, 9 Cal.3d at p. 764 .) “The Serrato rule protects the People’s right to mandated, lawful sentences.

2026The Serrato court concluded that “when a trial court pronounces an unauthorized sentence,” “[s]uch a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, supra, 9 Cal.3d at p. 764 .) “The Serrato rule protects the People’s right to mandated, lawful sentences.

23
People v. Burbinegreen
calctapp · 2003 · cited in 2 California opinions naming this issue, 2023–2023
2 sentences

2023In the court’s view, Price was inapplicable because the case as a whole fell within the Serrato exception for unauthorized or unlawful sentences. 6 (Craig, at p. 1450; see also People v. Burbine (2003) 106 Cal.App.4th 1250 [citing Craig in holding that a defendant can receive the same aggregate prison term upon resentencing for a multi-victim felony conviction even where one count was reversed on appeal; any sentence permitted under the applicable statutes and rules may be imposed on remand, subject only to the limitation that the original aggregate prison term could not be increased].) A fina

2023In the court’s view, Price was inapplicable because the case as a whole fell within the Serrato exception for unauthorized or unlawful sentences. 6 (Craig, at p. 1450; see also People v. Burbine (2003) 106 Cal.App.4th 1250 [citing Craig in holding that a defendant can receive the same aggregate prison term upon resentencing for a multi-victim felony conviction even where one count was reversed on appeal; any sentence permitted under the applicable statutes and rules may be imposed on remand, subject only to the limitation that the original aggregate prison term could not be increased].) A fina

22
People v. Pricegreen
calctapp · 1986 · cited in 5 California opinions naming this issue, 1998–2024
2 sentences

2023(Id. at p. 765.) Under these circumstances, we agree with the appellate court in Price that “[t]he holding in Serrato vindicates the People’s right to imposition of a proper sentence.” (Price, supra, 184 Cal.App.3d at p. 1409 ; accord, Torres, supra, 163 Cal.App.4th at pp. 1429-1432; Craig, supra, 66 Cal.App.4th at p. 1449 .) Thus, the Serrato exception only applies to unauthorized sentences which were unlawfully lenient to the detriment of the People.

2023(Id. at p. 765.) Under these circumstances, we agree with the appellate court in Price that “[t]he holding in Serrato vindicates the People’s right to imposition of a proper sentence.” (Price, supra, 184 Cal.App.3d at p. 1409 ; accord, Torres, supra, 163 Cal.App.4th at pp. 1429-1432; Craig, supra, 66 Cal.App.4th at p. 1449 .) Thus, the Serrato exception only applies to unauthorized sentences which were unlawfully lenient to the detriment of the People.

15
People v. Mustafaagreen
calctapp · 1994 · cited in 3 California opinions naming this issue, 2014–2022
2 sentences

2022He contends that “there is also an exception to the Serrato exception” when “there is a legally unauthorized component of the sentence, but the aggregate sentence is not legally unauthorized leniency.” Asserting his to be such a case, Donald explains, “The trial court could run the determinate term in Count 2 concurrently to the 50-to-life term for murder in Count 1. [Citations.] Thus, the mandatory minimum term here is 50-to-life, and a sentence of 77 years, 4 months to life is much greater than that mandatory minimum term.” In support of these contentions that the original sentence was a leg

2022He contends that “there is also an exception to the Serrato exception” when “there is a legally unauthorized component of the sentence, but the aggregate sentence is not legally unauthorized leniency.” Asserting his to be such a case, Donald explains, “The trial court could run the determinate term in Count 2 concurrently to the 50-to-life term for murder in Count 1. [Citations.] Thus, the mandatory minimum term here is 50-to-life, and a sentence of 77 years, 4 months to life is much greater than that mandatory minimum term.” In support of these contentions that the original sentence was a leg

13
People v. Fosselmangreen
cal · 1983 · cited in 2 California opinions naming this issue, 1998–2014
2 sentences

2014(People v. Reyes, supra, 212 Cal.App.3d at p. 857 .) In People v. Serrato (1973) 9 Cal.3d 753, 764 (Serrato), disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583 , footnote 1, our Supreme Court explained that when a sentence is legally unauthorized, the guarantee against double jeopardy does not bar the imposition of a proper sentence, “even though it is more severe than the original unauthorized pronouncement.” Under the Serrato rule, in correcting an unauthorized sentence, the trial court may exercise its discretion when appropriate, even though the result is a lon

2014(People v. Reyes, supra, 212 Cal.App.3d at p. 857 .) In People v. Serrato (1973) 9 Cal.3d 753, 764 (Serrato), disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583 , footnote 1, our Supreme Court explained that when a sentence is legally unauthorized, the guarantee against double jeopardy does not bar the imposition of a proper sentence, “even though it is more severe than the original unauthorized pronouncement.” Under the Serrato rule, in correcting an unauthorized sentence, the trial court may exercise its discretion when appropriate, even though the result is a lon

12
People v. Buckhaltergreen
cal · 2001 · cited in 1 California opinions naming this issue, 2025–2025
2 sentences

2025(See People v. Buckhalter (2001) 26 Cal.4th 20, 23, 29-30, 37, 40-41 .) Disposition Our prior decision filed on December 13, 2023, is vacated.

2025(See People v. Buckhalter (2001) 26 Cal.4th 20, 23, 29-30, 37, 40-41 .) Disposition Our prior decision filed on December 13, 2023, is vacated.

11
People v. Scottgreen
cal · 1994 · cited in 1 California opinions naming this issue, 2022–2022
2 sentences

2022(See People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case”].) Accordingly, the Serrato exception applies, and the trial court was not barred by the double jeopardy clause for imposing a more severe sentence than the original in its resentencing.

2022(See People v. Scott (1994) 9 Cal.4th 331, 354 [“a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstances in the particular case”].) Accordingly, the Serrato exception applies, and the trial court was not barred by the double jeopardy clause for imposing a more severe sentence than the original in its resentencing.

11
People v. Irvingreen
calctapp · 1991 · cited in 1 California opinions naming this issue, 2014–2014
2 sentences

2014(People v. Irvin (1991) 230 Cal.App.3d 180, 190-193 [after fashioning unauthorized sentence by staying enhancement, the trial court had the discretion to correct the error by imposing or striking enhancement, as permitted by governing statute].) In view of Serrato, the trial court properly imposed consecutive terms on appellant’s offenses and exercised its discretion to reduce the term for the grand theft.

2014(People v. Irvin (1991) 230 Cal.App.3d 180, 190-193 [after fashioning unauthorized sentence by staying enhancement, the trial court had the discretion to correct the error by imposing or striking enhancement, as permitted by governing statute].) In view of Serrato, the trial court properly imposed consecutive terms on appellant’s offenses and exercised its discretion to reduce the term for the grand theft.

11
People v. Panizzongreen
cal · 1996 · cited in 1 California opinions naming this issue, 1998–1998
2 sentences

1998(People v. Panizzon (1996) 13 Cal.4th 68, 88 [ 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ]; People v. Serrato (1973) 9 Cal.3d 753, 764-765 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ], overruled on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ].) As the court in Serrato explained “. . . a defendant who successfully attacks a judgment which is in excess of the court’s jurisdiction is not necessarily entitled to claim the protection of that invalid judgment as an absolute limitation upon what the court may do thereafter.” (People v. Serrato, supra, a

1998(People v. Panizzon (1996) 13 Cal.4th 68, 88 [ 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ]; People v. Serrato (1973) 9 Cal.3d 753, 764-765 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ], overruled on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ].) As the court in Serrato explained “. . . a defendant who successfully attacks a judgment which is in excess of the court’s jurisdiction is not necessarily entitled to claim the protection of that invalid judgment as an absolute limitation upon what the court may do thereafter.” (People v. Serrato, supra, a

11
People v. Westgreen
calctapp · 1980 · cited in 1 California opinions naming this issue, 1990–1990
2 sentences

1990“Arbuckle recognizes that if a defendant’s case is assigned to a different judge for sentencing, the defendant can proceed before that judge or withdraw his plea. [Citation.] [A] defendant . . . does not have the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge.” (People v. West (1980) 107 Cal.App.3d 987, 992 [ 165 Cal.Rptr. 24 ], italics omitted.) Because Adams failed to object below to sentencing by a judge other than the one who took his plea, he waived his Arbuckle right.

1990“Arbuckle recognizes that if a defendant’s case is assigned to a different judge for sentencing, the defendant can proceed before that judge or withdraw his plea. [Citation.] [A] defendant . . . does not have the option of taking his chances before the different judge and, if the result is unfavorable, then demand the original judge.” (People v. West (1980) 107 Cal.App.3d 987, 992 [ 165 Cal.Rptr. 24 ], italics omitted.) Because Adams failed to object below to sentencing by a judge other than the one who took his plea, he waived his Arbuckle right.

11

Distinguished, questioned or overruled (0)

CaseNegativeCited
No negative-treatment citations attached to this issue in California. Read the followed side critically anyway.

Also cited on this issue (10)

CaseCitedYears
People v. Brown green
calctapp · 1987
2 sentences

2023After noting the “general rule” that “a greater sentence may not be imposed upon remand after an appeal,” the court considered the Serrato exception which provides that “an unauthorized sentence ‘is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’ ” (Brown, supra, 193 Cal.App.3d at p. 962 .) The court read Serrato as “set[ting] up a distinction between resentencing upon retrial 19 necessitated by an error not involving the sentence and resentencing necessitated by

2023After noting the “general rule” that “a greater sentence may not be imposed upon remand after an appeal,” the court considered the Serrato exception which provides that “an unauthorized sentence ‘is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’ ” (Brown, supra, 193 Cal.App.3d at p. 962 .) The court read Serrato as “set[ting] up a distinction between resentencing upon retrial 19 necessitated by an error not involving the sentence and resentencing necessitated by

22023–2023
People v. Karaman green
cal · 1992
2 sentences

2023(Cf. Karaman, supra, 4 Cal.4th at p. 349 & fn. 15 [contrasting the situation where a trial court may not increase a valid sentence after it has commenced with Serrato and Ricky H., stating: “[W]here the court is required to impose a certain minimum term but imposes a lesser term instead, the unauthorized sentence is considered invalid or ‘unlawful’ and may be increased even after execution of the sentence has begun.”].) We also find support for the conclusion that Serrato applies only to unauthorized, lenient sentences in the Supreme Court’s decision in Collins.

2023(Cf. Karaman, supra, 4 Cal.4th at p. 349 & fn. 15 [contrasting the situation where a trial court may not increase a valid sentence after it has commenced with Serrato and Ricky H., stating: “[W]here the court is required to impose a certain minimum term but imposes a lesser term instead, the unauthorized sentence is considered invalid or ‘unlawful’ and may be increased even after execution of the sentence has begun.”].) We also find support for the conclusion that Serrato applies only to unauthorized, lenient sentences in the Supreme Court’s decision in Collins.

22023–2023
People v. Craig green
calctapp · 1998
2 sentences

2023(Id. at p. 765.) Under these circumstances, we agree with the appellate court in Price that “[t]he holding in Serrato vindicates the People’s right to imposition of a proper sentence.” (Price, supra, 184 Cal.App.3d at p. 1409 ; accord, Torres, supra, 163 Cal.App.4th at pp. 1429-1432; Craig, supra, 66 Cal.App.4th at p. 1449 .) Thus, the Serrato exception only applies to unauthorized sentences which were unlawfully lenient to the detriment of the People.

2023(Id. at p. 765.) Under these circumstances, we agree with the appellate court in Price that “[t]he holding in Serrato vindicates the People’s right to imposition of a proper sentence.” (Price, supra, 184 Cal.App.3d at p. 1409 ; accord, Torres, supra, 163 Cal.App.4th at pp. 1429-1432; Craig, supra, 66 Cal.App.4th at p. 1449 .) Thus, the Serrato exception only applies to unauthorized sentences which were unlawfully lenient to the detriment of the People.

22023–2023
People v. Martinez green
calctapp · 1998
2 sentences

2023“Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (Id., subd. (c)(2).) Appellant claims: “Because the record makes no mention of the specific [mitigating] factors enumerated in section 1385, the case must be remanded for consideration of whether the trial court shall dismiss the enhancem

2023“Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (Id., subd. (c)(2).) Appellant claims: “Because the record makes no mention of the specific [mitigating] factors enumerated in section 1385, the case must be remanded for consideration of whether the trial court shall dismiss the enhancem

12023–2023
People v. Lopez green
calctapp · 2019
1 sentence

2021The trial court held that pursuant to People v. Lopez (2019) 42 Cal.App.5th 337 , Serrato was not entitled to relief under Senate Bill No. 136 because his conviction had become final prior to the enactment of the statute.

12021–2021
People v. Ricky H. green
cal · 1981
2 sentences

2015Such a sentence is subject to being set aside judicially and is no bar *432 to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, at p. 764, italics added.) In reaffirming the Serrato exception to the Henderson rule, our high state court stated in In re Ricky H. (1981) 30 Cal.3d 176 [ 178 Cal.Rptr. 324 , 636 P.2d 13 ], that “[authority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possi

2015Such a sentence is subject to being set aside judicially and is no bar *432 to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, at p. 764, italics added.) In reaffirming the Serrato exception to the Henderson rule, our high state court stated in In re Ricky H. (1981) 30 Cal.3d 176 [ 178 Cal.Rptr. 324 , 636 P.2d 13 ], that “[authority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possi

12015–2015
People v. Massengale green
calctapp · 1970
2 sentences

2015Such a sentence is subject to being set aside judicially and is no bar *432 to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, at p. 764, italics added.) In reaffirming the Serrato exception to the Henderson rule, our high state court stated in In re Ricky H. (1981) 30 Cal.3d 176 [ 178 Cal.Rptr. 324 , 636 P.2d 13 ], that “[authority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possi

2015Such a sentence is subject to being set aside judicially and is no bar *432 to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” (Serrato, at p. 764, italics added.) In reaffirming the Serrato exception to the Henderson rule, our high state court stated in In re Ricky H. (1981) 30 Cal.3d 176 [ 178 Cal.Rptr. 324 , 636 P.2d 13 ], that “[authority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possi

12015–2015
People v. Benton green
calctapp · 1979
2 sentences

2015Under the Serrato exception to the Henderson rule, as already explained, such an unauthorized sentence is subject to correction by an appellate court “whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment.” (In re Ricky H., supra, 30 Cal.3d at p. 191 .) For example in Benton, supra, 100 Cal.App.3d 92 , which was decided in 1979, the Court of Appeal held that the defendant’s aggregate four-year state prison sentence was “unauthorized by law” because the defendant had admitted five charged prior felony convictions and t

2015Under the Serrato exception to the Henderson rule, as already explained, such an unauthorized sentence is subject to correction by an appellate court “whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment.” (In re Ricky H., supra, 30 Cal.3d at p. 191 .) For example in Benton, supra, 100 Cal.App.3d 92 , which was decided in 1979, the Court of Appeal held that the defendant’s aggregate four-year state prison sentence was “unauthorized by law” because the defendant had admitted five charged prior felony convictions and t

12015–2015
People v. Henderson green
cal · 1963
2 sentences

2015The rationale of [ Henderson, supra], 60 Cal.2d 482 . . . , forbidding increased punishment after a reversal and second trial, does not apply.

2015The rationale of [ Henderson, supra], 60 Cal.2d 482 . . . , forbidding increased punishment after a reversal and second trial, does not apply.

12015–2015
People v. Reyes green
calctapp · 1989
2 sentences

2014(People v. Reyes, supra, 212 Cal.App.3d at p. 857 .) In People v. Serrato (1973) 9 Cal.3d 753, 764 (Serrato), disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583 , footnote 1, our Supreme Court explained that when a sentence is legally unauthorized, the guarantee against double jeopardy does not bar the imposition of a proper sentence, “even though it is more severe than the original unauthorized pronouncement.” Under the Serrato rule, in correcting an unauthorized sentence, the trial court may exercise its discretion when appropriate, even though the result is a lon

2014(People v. Reyes, supra, 212 Cal.App.3d at p. 857 .) In People v. Serrato (1973) 9 Cal.3d 753, 764 (Serrato), disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583 , footnote 1, our Supreme Court explained that when a sentence is legally unauthorized, the guarantee against double jeopardy does not bar the imposition of a proper sentence, “even though it is more severe than the original unauthorized pronouncement.” Under the Serrato rule, in correcting an unauthorized sentence, the trial court may exercise its discretion when appropriate, even though the result is a lon

12014–2014

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