Filed 9/26/22 P. v. Fischer CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD TIMOTHY FISCHER,

Defendant and Appellant.

 D079585

 (Super. Ct. No. SCN383174)

APPEAL from an order of the Superior Court of San Diego County, 

Daniel B. Goldstein, Judge. Affirmed.

Alan S. Yockelson and John M. Bishop, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, A. 

Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

Richard Timothy Fischer pled guilty to four felony counts of assault by 

a public officer (Pen. Code, § 149),1 two misdemeanor counts of assault by a 

public officer (§§ 149, 17, subd. (b)(4)), and one count of false imprisonment 

(§ 236). The trial court imposed a five-year split sentence, with 44 months to 

be served in local prison and 16 months to be served on mandatory 

supervision, with three days of presentence custody credits. 

On May 15, 2020, while Fischer was serving his sentence, the trial 

court approved the parties’ stipulation to increase Fischer’s presentence 

custody credits from three to 959, resulting in Fischer’s release from local 

prison to begin serving his term of mandatory supervision. After the People 

discovered that they were mistaken in stipulating to the additional 

presentence custody credits, they filed a motion seeking to undo the 

stipulation. The trial court granted the motion, reduced the amount of 

presentence custody credits to three as originally ordered, and directed 

Fischer to report to local prison after completing his term of mandatory 

supervision. The trial court concluded that it had jurisdiction to grant that 

relief because the order awarding an additional 956 days of presentence 

custody credits resulted in an unauthorized “illegal” sentence. 

Fischer contends that the trial court lacked jurisdiction to vacate its 

order awarding an additional 956 days of presentence custody credits because 

that order did not result in the type of unauthorized sentence that can be 

corrected after the defendant begins serving a sentence. Fischer further 

contends that even if we conclude that the trial court had jurisdiction to 

vacate its award of an additional 956 days of presentence custody credits, it 

1 Unless otherwise indicated, all further statutory references are to the 

Penal Code.
3

would be fundamentally unjust to require him to serve the rest of his 

sentence.

We conclude that Fischer’s arguments lack merit. We accordingly 

affirm the trial court’s order that vacated the grant of an additional 956 days 

of presentence custody credits and remanded Fischer to custody to serve out 

the remainder of his local prison sentence. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

Fischer is a former Deputy Sheriff in the San Diego County Sheriff’s 

Department. On February 22, 2018, a criminal complaint charged Fischer 

with 14 counts based on allegations that while on duty, Fischer made

inappropriate physical contact with several women. Fischer posted bail in 

the amount of $100,000. The Honorable Daniel B. Goldstein was assigned to 

Fischer’s case for all purposes. 

In August 2018, while Judge Goldstein was on vacation, the People 

filed a second criminal complaint against Fischer involving additional alleged 

victims. In connection with that filing, the People requested and received an 

order from a different judge, setting Fischer’s bail at $2 million. After Judge 

Goldstein returned from vacation, defense counsel requested at an August 20, 

2018 hearing that Fischer’s $2 million bail be reduced to $210,000, consistent 

with the bail schedule.2 After a lengthy hearing, at which the People argued 

the bail should remain at $2 million due to the nature of Fischer’s alleged 

2 Defense counsel argued, “[L]et’s reduce bail to something that is 

rational and within reason. $2 million just boggles the mind.” The court 

noted, “The issue is does the bail amount protect the public and does it 

ensure the defendant’s appearance? Those are the two main concerns that 

the Court has.” Neither defense counsel nor the People requested that 

Fischer be placed on home detention or be ordered to wear a GPS monitor. 
4

crimes, Judge Goldstein reduced the bail amount to $750,000. He explained, 

“So my ruling is going to be a little bit split here. What I’m going to do is I’m 

going to lower bail, but I’m going [to] set it over schedule. And the reason 

why I’m doing that is I think there’s a particular dollar amount that ensures 

the likelihood of appearance, but also with the conditions I’m going to set on 

it . . . decrease the likelihood of any danger to the public or danger to the 

victims. So I’m going to set bail at $750,000. I’m going to require the

defendant have GPS, right, and have a monitoring system. . . . So we’re going 

to get him set up. He is going to have a GPS bracelet by Friday.” As an 

additional condition of bail, Fischer was ordered to have no contact with, and 

to stay away from, any of his alleged victims. 

Near the conclusion of the August 20, 2018 hearing, the courtroom 

clerk came on the record and asked which entity should be used for setting up 

the GPS monitoring of Fischer: 

“THE CLERK: Your Honor, can I verify SCRAM? GPS or CPAC?

“THE COURT: [Probation officer], who is doing SCRAM?

“[PROBATION OFFICER]: SCRAM is different. I think CPAC 

would be appropriate.

“THE COURT: Okay. We will get that figured out when we get 

off the record.” 

“CPAC” refers to the County Parole and Alternative Custody Unit. It 

was apparently decided during the off-the-record discussion that CPAC was 

the best entity to use, as the next day Fischer signed a pre-printed “CPAC 

Electronic Monitoring Application.” Two days later, on August 23, 2018, 

Fischer signed an acknowledgment of CPAC’s rules and regulations, which 

stated he had been accepted into the CPAC program. 
5

All of the documents related to the CPAC application and approval are 

consistent with the trial court’s order that Fischer would be placed on GPS 

monitoring but would not be restricted in his movements other than the 

requirement to stay away from his alleged victims. First, the sheriff’s 

department form titled “Electronic Monitoring Screening” was filled out to 

state, “No restrictions to movement other than protected [parties] in 

[criminal protective orders]. No programs. GPS monitor only.” Next, on the 

CPAC form titled “Participant Checklist,” the box was checked indicating “No 

restricted movement,” and a comment provided, “Only movement restrictions 

will be Unapproved locations (Exclusion Zones) of protected parties.” Finally, 

Fischer signed a preprinted form titled “Rules and Regulations” for “Home 

Detention Electronic Monitoring,” but on that form, several items were 

crossed out, consistent with CPAC’s role being limited to providing GPS 

monitoring to ensure Fischer stayed away from his alleged victims. Among 

others, the following items were crossed out: “I shall remain within the

interior premises of my residence during the hours designated by [CPAC]”; 

“Work schedules may only be changed with verification by employer and 

approval of the electronic monitoring vendor”; and “I will immediately, or as 

soon as possible, report any illness or circumstance to my CPAC Case 

Manager that prevents me from adhering to my schedule.” There were also 

deletions of items relating to alcohol and drug prohibitions; consent to 

warrantless searches; consent to allow CPAC to conduct chemical, blood, 

breath, saliva or urine testing; prohibition on contact with inmates, gang 
6

members and felons; and consent to allow CPAC to direct enrollment in 

counseling or treatment programs.3

On December 7, 2018, a consolidated information charged Fischer with 

one count of forcible oral copulation (§ 288a, subd. (c)(2)(A)); one count of first 

degree burglary (§ 459); 16 counts of assault and battery by an officer (§ 149); 

one count of sexual battery (masturbation) (§ 243.4, subd. (d)); and one count 

of false imprisonment (§ 236). 

On September 9, 2019, Fischer pled guilty to each of the counts set 

forth in an amended consolidated information: four felony counts of assault 

by a public officer (§ 149), two misdemeanor counts of assault by a public 

officer (§§ 149, 17, subd. (b)(4)), and one count of false imprisonment (§ 236). 

The plea agreement stated that the parties agreed to a sentence of up to five 

years in local prison with the sentence on the misdemeanors to run 

concurrently with any sentence imposed on the felony counts. 

On December 10, 2019, the trial court sentenced Fischer to a five-year 

split sentence, with 44 months to be served in local prison and 16 months to 

be served on mandatory supervision. Although the trial court did not 

specifically address the issue of presentence custody credits during the 

sentencing hearing, the minute order from the sentencing hearing and the 

abstract of judgment stated that Fischer had three days of presentence 

3 As Fischer points out, the following items were not crossed out in the 

list of rules and regulations that he signed: (1) “CPAC staff may, without 

further order of the court, immediately remove me from the program . . . if . . . 

[¶] . . . I fail to remain within or return to my residence as stipulated in the 

agreement”; and (2) “I will notify my CPAC Case Manager in the event of an 

emergency situation that necessitates my leaving my residence at

unauthorized times . . . .” (Italics added.) However, those items do not 

conflict with an order limited to GPS monitoring, as both of the items 

explicitly depend on the incorporation of any stated restrictions on Fischer’s 

movements, which in this case undisputedly did not exist. 
7

custody credits, which was consistent with the recommendation in the 

probation officer’s report.4

On May 15, 2020, the trial court approved a stipulation that was 

entered into by the parties to significantly amend the number of presentence 

custody credits to which Fischer was entitled from three to 959 (including 

conduct credits).5 The stipulation stated:

“Custody credits are to be amended and corrected to add 478 days 

of custody pursuant to People v. Yanez for days spent on Sheriff’s 

CPAC electronic monitoring and 478 days of [section ]4019 

behavior credits for a total additional 956 days. These credits are 

to be added to the 3 days credit of jail previously awarded, plus 

121 days of custody that Mr. Fischer has served to today’s date, 

April 7, 2020, from his sentencing date of December 10, 2019 for 

a total of 124 days. Additionally, he is ordered to receive another 

124 days of [section ]4019 good behavior credits for a total of 248 

days. The 248 days are to [be] added to the 956 days, which 

equals a total of 1,204 custody days ordered to be credited to 

Mr. Richard Fischer’s sentence as of April 7, 2020.”6

4 Prior to sentencing, counsel for Fischer filed a response to the probation 

officer’s report, taking issue with the probation officer’s calculation of 

presentence custody credits. Counsel stated, “The probation officer has 

concluded that Mr. Fischer is entitled to only three (3) days of custody 

credits. Mr. Fischer disagrees with this calculation since it does not take into 

account the time that he has been subject to GPS monitoring prior to his 

sentencing in this case, and it also does not take into account [Penal Code 

section] 4019 credits.” (Italics omitted.) 

5 The judge who signed the stipulation was the Honorable Lorna A. 

Alksne. Judge Alksne included a handwritten notation under her signature 

which indicated “with approval of Judge D. Goldstein.” This procedure was 

apparently used because of the pandemic. 

6 In context, it is evident that the stipulation included the reference to 

People v. Yanez (2019) 42 Cal.App.5th 91 because that case serves as 

authority for including the good behavior (i.e., “conduct”) credits pursuant to 
8

As a result of the trial court’s order approving the stipulation, Fischer 

was released from local prison and began serving his term of mandatory 

supervision on May 15, 2020, i.e., the day the stipulation was approved by the 

trial court.7

On July 22, 2020, the People filed a motion to (1) withdraw the 

stipulation; (2) vacate the order granting the additional presentence custody 

credits; and (3) remand Fischer to custody to complete the custodial portion of 

his split sentence.8 As the People explained, they had entered into the 

stipulation in error during a confusing period at the beginning of the 

pandemic based on incomplete information which led them to believe that 

section 4019. (Yanez, at p. 93 [the “disparity in eligibility for conduct credits 

between pretrial and postjudgment electronic monitoring home detainees 

violates equal protection” and therefore a defendant who spends time on 

presentence home detention “is eligible for conduct credits notwithstanding 

the Legislature’s failure to provide for them in . . . section 4019”].)

7 Likely due to the pandemic, there was a delay in issuing the minute 

order showing that the trial court had approved the stipulation and had 

accordingly amended Fischer’s presentence custody credits. Specifically, on 

June 18, 2020, the trial court (Judge Alksne) issued an ex parte minute order 

stating that it was amending Fischer’s presentence custody credits as 

provided in the stipulation it approved on May 15, 2020: “602 Actual days” 

and “602 [section] 4019 credits” for “1,204 Total days custody credits.” The 

minute order stated, “The Court finds that the defendant is entitled to receive 

the credits stated above and amends the sentence imposed on December 10, 

2019, nunc pro tunc to that date.” The trial court also corrected the abstract 

of judgment to reflect the credits. 

8 The People originally contacted the trial court about Fischer’s 

presentence custody credits on June 4, 2020, which was done via email due to 

disruptions caused by the pandemic. The trial court instructed the People to 

file a formal motion. 
9

Fischer was on home detention prior to sentencing.9 Thus, based on the 

information available to them at the time, the People agreed with defense 

counsel that Fischer was entitled to presentence custody credits pursuant to 

section 2900.5, subdivision (a), which provides for presentence custody credit 

for “days served in home detention pursuant to Section 1203.016 or 

1203.018.” (§ 2900.5, subd. (a).)10

The People explained that only after the stipulation was approved by 

the trial court did they learn from later-obtained CPAC records and the 

reporter’s transcript from the August 20, 2018 hearing that Fischer had not 

been confined on home detention but instead had been released on bail while 

ordered to undergo GPS monitoring by CPAC. According to the People, the 

stipulation and the trial court’s subsequent order awarding additional credits 

was invalid because “it impermissibly and incorrectly stipulates that the law 

permits custody credits for a person who was not ordered to home detention—

a situation not authorized by law.” 

9 Neither defense counsel, nor the Deputy District Attorney who signed 

the stipulation, was involved in the case in August 2018 when the trial court 

made the order setting bail at $750,000 and requiring GPS monitoring. At 

the hearing on the motion, the People explained, “[T]his all happened in a 

very unique circumstance where we had a pandemic, where records weren’t 

available to the parties. Because of that inaccessibility to the records, at no 

fault of their own, [the prosecutors] came to the best conclusion they could 

based upon this information they had. Unfortunately, it was not complete 

information because of the pandemic and the lack of accessibility of records.” 

10 Section 2900.5 states, “In all felony and misdemeanor convictions, 

either by plea or by verdict, when the defendant has been in custody, . . . all 

days of custody . . . including . . . days served in home detention pursuant to 

Section 1203.016 or 1203.018, shall be credited upon his or her term of 

imprisonment.” Section 1203.016 governs post-conviction home detention, 

while section 1203.018 governs pre-conviction home detention. 
10

Fischer filed an opposition on August 19, 2020, and a supplemental 

opposition on September 15, 2020. In opposition, Fischer argued, among 

other things, that (1) he was on home detention within the meaning of section 

1203.018 because the GPS monitoring was sufficiently restrictive and was 

pursuant to a home detention agreement he signed with CPAC; and (2) the 

trial court did not have jurisdiction to vacate its order awarding the 

additional presentence custody credits because that order did not result in an 

unauthorized sentence. 

A hearing on the People’s motion was held on September 24, 2021, 

before Judge Goldstein, which was more than a year after the People filed 

their motion on July 22, 2020. The hearing was delayed due to the pandemic 

and other factors involving the trial court’s calendar availability. 

In ruling on the motion, the trial court explained that it had not 

ordered Fischer to be on home detention, but instead had ordered that

Fischer be subject to GPS monitoring, with CPAC as the entity chosen to 

perform the monitoring. The trial court stated, “What I said was that he was 

to stay away from certain locations, and I said that he was going to have to 

have an electronic monitor, and he was going to have a Fourth waiver and

surrender his passport and do things like that. And, often, I’ll do that, 

ironically, not to eat up custody credits. That, while the case is pending, I

just want to know where a particular defendant is or I want law enforcement 

to know where he or she is. And, I mean, if you take my order from the

dockets and from the transcript and then you look at the CPAC order, the 

CPAC order is entirely consistent with what I said, right? I mean, they 

crossed out you have to stay at home because I didn’t say it.” The trial court 

also explained that CPAC was the best entity to use for the GPS monitoring 

because the court wanted someone to watch the GPS monitoring data to 
11

make sure Fischer did not go near an alleged victim. “So there was a 

plethora of victims, right? So if you G.P.S. monitor, who is monitoring the

monitor, right? You either engage CPAC or the sheriff’s department to do it, 

right? The sheriff’s department would not be—we use those for pretrial or

presentencing monitoring systems, but that wouldn’t have been a good choice 

in this case, so CPAC was doing it.” 

After additional argument from defense counsel, the trial court 

concluded, “I don’t believe the defendant was in custody for the purpose of 

calculating credits. I just don’t.” It ruled, “So I do find that the custody 

credits were awarded illegally to the defendant. I also find that the People’s 

stipulation with the defendant thus was illegal.”11 The trial court therefore 

ordered Fischer to report to jail on November 21, 2021 (after completing his 

mandatory supervision time), to finish serving his local prison sentence. The 

minute order from the hearing states: “The court denies the GPS/CPAC 

credits. The defendant is ordered to report to central jail on 11/21/21 . . . to 

serve 949 total days per [section] 1170(h)(5)(a), to commence on 11/21/21, as 

stated on the record.” 

Fischer filed a notice of appeal on October 4, 2021.12

11 The trial court also specified that it found no bad faith by either the 

People or the defense, explaining that the pandemic and other logistical 

difficulties gave rise to the situation that led to the court’s approval of the 

stipulation regarding Fischer’s presentence custody credits. 

12 In his reply brief filed April 27, 2022, Fischer represented that he 

began serving the remainder of the local prison sentence as ordered by the 

trial court, but that he was then granted bail pending appeal on April 5, 

2022. 
12

II.

DISCUSSION

A. The Trial Court Had Jurisdiction to Vacate the Unauthorized Sentence 

Created by Its Approval of the Parties’ Stipulation

We first consider Fischer’s contention that the trial court lacked 

jurisdiction to vacate its order awarding 956 additional days of presentence 

custody credits to Fischer. 

1. A Trial Court Has Jurisdiction to Correct an Unauthorized 

Sentence at Any Time

Fischer relies on the general rule that “a trial court is deprived of 

jurisdiction to resentence a criminal defendant once execution of the sentence 

has commenced.” (People v. Karaman (1992) 4 Cal.4th 335, 344 (Karaman).) 

However, an exception to this rule applies when the trial court acts to correct 

an unlawful sentence. Specifically, as our Supreme Court has explained,

“where 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.” (Id. at p. 349, fn. 15.) “ ‘ “It is well established that when the trial 

court pronounces a sentence which is unauthorized by the Penal Code that 

sentence must be vacated and a proper sentence imposed whenever the 

mistake is appropriately brought to the attention of the trial court or the

reviewing court.” ’ ” (People v. Zito (1992) 8 Cal.App.4th 736, 741-742 (Zito); 

see also People v. Serrato (1973) 9 Cal.3d 753, 763 (Serrato) [if an 

unauthorized sentence is imposed, “the law is well settled that such a 

sentence would have been subject to judicial correction whenever the error 

came to the attention of the trial court or a reviewing court”], disapproved of 

on other grounds by People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
13

Our Supreme Court has “observed that ‘a sentence is generally 

“unauthorized” where it could not lawfully be imposed under any 

circumstance in the particular case,’ and ‘commonly occurs where the court 

violates mandatory provisions governing the length of confinement.’ ” (People 

v. Roth (2017) 17 Cal.App.5th 694, 702-703 (Roth), quoting People v. Scott

(1994) 9 Cal.4th 331, 354 (Scott).) The crucial distinction in determining 

whether a sentence is unauthorized is whether the error concerns “a 

sentencing decision that the trial court had the discretion to make, although 

flawed in some way” or whether it concerns “one for which it had no legal

authority.” (Roth, at pp. 704-705, italics added.)

The context in which a trial court has jurisdiction to grant relief from 

an unauthorized sentence includes a post-sentencing motion to vacate 

brought by the People after the defendant has already begun serving a 

sentence. Two cases illustrate that a trial court has jurisdiction to grant 

relief in response to such a motion.

First, in People v. Gisbert (2012) 205 Cal.App.4th 277 (Gisbert), “[t]he 

trial court awarded [the defendant] 88 days of presentence custody credits, 

after defendant pled guilty.” (Id. at p. 279.) Several weeks after the 

defendant was sentenced, the People filed a motion to vacate the credits on 

the ground that the award of credits violated the rule that “[a] defendant is 

not entitled to presentence custody credits when [the defendant] is charged 

with a crime while already incarcerated and serving a sentence on a 

separate, earlier crime.” (Id. at p. 281.) Gisbert held that “[t]he trial court 

had jurisdiction to entertain the prosecution’s motion because an 

unauthorized sentence may be corrected at any time.” (Id. at p. 279.)

The second case illustrating the trial court’s jurisdiction to rule on a 

motion by the People to correct an unauthorized sentence is Wilson v. 
14

Superior Court (1980) 108 Cal.App.3d 816. Our Supreme Court favorably 

cited Wilson for the principle that “where 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.” (Karaman, supra, 4 Cal.4th at p. 349, 

fn. 15.) In Wilson, the trial court granted a motion brought by the People to 

correct an unauthorized sentence that arose from the trial court’s erroneous 

award of presentence custody credits to the defendant after he began serving 

his sentence. (Wilson, at pp. 817-818.) The defendant challenged the trial 

court’s order granting the People’s motion on the ground that the trial court 

lacked jurisdiction to do so “ ‘save by the regular course of [a timely] appeal.’ ” 

Wilson rejected the argument, explaining that the trial court properly 

granted the People’s motion because “[i]mposition of ‘a sentence not 

authorized by law . . . [is] subject to judicial correction whenever the error 

[comes] to the attention of the trial court or a reviewing court.’ ” (Id. at 

p. 818, quoting Serrato, supra, 9 Cal.3d at p. 763.)

Despite this case law, at oral argument Fischer relied on the recent 

opinion in People v. King (2022) 77 Cal.App.5th 629 (King) to contend that a 

trial court does not have jurisdiction to correct an unauthorized sentence

when, as here, the unauthorized sentence is brought to the trial court’s 

attention in a motion filed by the People after the defendant has begun 

serving his sentence. As King described the law, “the unauthorized sentence 

doctrine is a principle of waiver rather than jurisdiction,” and thus “[t]he 

doctrine does not itself create jurisdiction for the trial court to rule on a 

motion challenging the legality of a sentence.” (Id. at p. 637.) King

accordingly held that the unauthorized sentence doctrine did not give the 

trial court jurisdiction to consider the defendant’s motion to correct an 
15

unauthorized sentence imposed by the trial court more than 30 years earlier, 

as the trial court lost jurisdiction after the defendant began serving his 

sentence. (Ibid.) King premised its understanding of the law on our Supreme 

Court’s opinion in In re G.C. (2020) 8 Cal.5th 1119 (G.C.). 

The issue in G.C. was whether the appellate court had jurisdiction in 

an appeal following an order in a juvenile delinquency proceeding to correct 

an allegedly unauthorized dispositional ruling made by the juvenile court in a 

previous proceeding concerning different offenses, which was not timely 

appealed. (G.C., supra, 8 Cal.5th at pp. 1123-1124.) G.C. first set forth a 

lengthy discussion of why the appeal of the dispositional order from the 

previous proceeding was not timely. (Id. at pp. 1126-1129.) It then turned to 

an explanation of why the appeal was not saved from untimeliness by the fact 

that the appellant was contending that the previous dispositional order was 

an unauthorized sentence. G.C. explained that the unauthorized sentence 

rule “ ‘is an exception to the waiver doctrine . . . , not to the jurisdictional

requirement of a timely notice of appeal.’ ” (Id. at p. 1129.) As G.C. stated,

“to invoke this rule the court must have jurisdiction over the judgment.” (Id. 

at p. 1130.) G.C. explained that the appellate court did not have jurisdiction 

over the previous dispositional order because there was “no correlation 

between the [earlier] error and the current judgment on appeal.” (Ibid.)

King derives from G.C. the sweeping principle that an unauthorized 

sentence does not, in itself, confer jurisdiction on a court to address an 

unauthorized sentence, even on the trial court that imposed the sentence in the 

first place. (King, supra, 77 Cal.App.5th at pp. 636-637.) We do not read 

G.C. so broadly. G.C.’s holding arose in the situation of successive 

dispositional orders, on different petitions, in the juvenile court, where a

juvenile failed to file a timely appeal but then attempted to challenge the 
16

order in an appeal from a different proceeding. Our Supreme Court in G.C.

said nothing about whether a trial court in an adult criminal proceeding has 

ongoing jurisdiction to correct its own unauthorized sentence whenever such 

a sentence comes to its attention.13 G.C. did not identify, discuss, or purport 

to disapprove the principle our Supreme Court described in Karaman, that 

“where 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.” (Karaman, supra, 4 Cal.4th at p. 349, fn. 15, italics added.) In our 

view, Karaman identifies a rule that remains valid and that is directly 

applicable here: the trial court has jurisdiction to entertain a motion by the 

People, filed in the trial court after the defendant has started serving his 

sentence, to correct a sentence that is unauthorized because it is shorter than 

required by law.14

13 Indeed, G.C. did not reach the question of whether the juvenile court 

itself would have had jurisdiction to correct an earlier unauthorized 

dispositional order had it been asked to do so. (G.C., supra, 8 Cal.5th at 

p. 1134, fn. 13.) 

14 We note also that King itself limits its holding in a manner that makes 

it inapplicable to the situation presented by Fischer’s case. King states, “Our 

holding here is necessarily limited to the circumstances of this case, involving 

a motion filed by an incarcerated defendant seeking a substantive change to 

his sentence after his conviction has become final and where the trial court 

did not otherwise have jurisdiction. We do not attempt to consider all the 

potential implications of characterizing the unauthorized sentence rule as a 

principle of waiver rather than jurisdiction. Instead, our holding is restricted 

to the proposition that the unauthorized sentence doctrine does not itself 

create jurisdiction for a trial court to rule on an incarcerated defendant’s 

motion to correct an alleged illegal sentence after the conviction is final and 

after the execution of the sentence has begun.” (King, supra, 77 Cal.App.5th 
17

2. The Award of an Additional 956 Days of Presentence Custody 

Credits to Fischer Was Unauthorized

Based on the above, to resolve whether the trial court had jurisdiction 

to vacate its order awarding an additional 956 days of presentence custody 

credits to Fischer, we must determine whether that order resulted in an 

unauthorized sentence which “could not lawfully be imposed under any 

circumstance in the particular case.” (Scott, supra, 9 Cal.4th at p. 354.) Put 

another way, we must determine whether, in awarding additional 

presentence custody credits to Fischer, the trial court “pronounce[d] a 

sentence which [was] unauthorized by the Penal Code” (Zito, supra, 8 

Cal.App.4th at p. 741), “for which it had no legal authority” and lacked “the 

discretion to make” (Roth, supra, 17 Cal.App.5th at pp. 704-705).

As a general matter, “[a] sentence that awards custody credits

exceeding statutory limits is unauthorized, and may be corrected whenever 

the error is discovered.” (People v. Valenti (2016) 243 Cal.App.4th 1140, 

1184.) The principle that an improper award of presentence custody credits 

is an unauthorized sentence follows from the fact that a trial court is not 

afforded any discretion in awarding presentence custody credits. (§ 2900.5, 

subd. (a); People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139 [“The 

calculation of credits is not discretionary and there are no ‘choices.’ ”]; People 

v. Jack (1989) 213 Cal.App.3d 913, 917 [“the trial court exercises no 

discretion when determining the days of presentence custody”].) Thus, an 

improper award of presentence custody credits “could not lawfully be imposed 

at pp. 641-642, fn. omitted.) Here, the trial court was not considering a 

motion by an incarcerated defendant to correct an unauthorized sentence, but 

rather a motion by the People seeking to correct a sentence that was shorter

than required by law, which is precisely the situation covered by Karaman. 

(Karaman, supra, 4 Cal.4th at p. 349, fn. 15.)
18

under any circumstance in the particular case.” (Scott, supra, 9 Cal.4th at 

p. 354.) 

Here, the trial court’s order resulted in an unauthorized sentence if 

Fischer had no legal entitlement to an additional 956 days of presentence 

custody credits.15 As we will explain, Fischer was not entitled to those 

additional presentence custody credits.

In relevant part, section 2900.5, subdivision (a) provides that a 

defendant is entitled to presentence custody credits for “all days of custody

. . . served in home detention pursuant to Section . . . 1203.018.” Section 

1203.018 applies to “inmates being held in lieu of bail and on no other basis.” 

(§ 1203.018, subd. (a).) It authorizes a county “to offer a program under 

which inmates being held in lieu of bail in a county jail or other county 

correctional facility may participate in an electronic monitoring program” if

certain enumerated conditions are met. (Id., subd. (b).) The statute allows 

each particular county to prescribe its own reasonable rules and regulations, 

but it requires, at a minimum, the following requirements, to which each 

participating defendant must agree in writing: “(1) The participant shall 

remain within the interior premises of the participant’s residence during the 

hours designated by the correctional administrator. [¶] (2) The participant 

shall admit any person or agent designated by the correctional administrator 

into the participant’s residence at any time for purposes of verifying the 

participant’s compliance with the conditions of the detention. [¶] (3) The 

electronic monitoring may include global positioning system devices or other 

supervising devices for the purpose of helping to verify the participant’s 

15 Fischer’s appellate briefing does not take a position on whether, under 

the applicable law, he was entitled to an additional 956 days of presentence 

custody credits. 
19

compliance with the rules and regulations of the electronic monitoring 

program. . . . [¶] (4) The correctional administrator in charge of the county 

correctional facility from which the participant was released may, without 

further order of the court, immediately retake the person into custody if the 

electronic monitoring or supervising devices are unable for any reason to 

properly perform their function at the designated place of home detention, if 

the person fails to remain within the place of home detention as stipulated in 

the agreement, or if the person for any other reason no longer meets the 

established criteria under this section.” (Id., subd. (d).) 

By its express terms, section 1203.018 describes a circumstance in 

which a defendant is in pretrial custody in lieu of bail but is determined by 

the county correctional administrator to be suitable for pretrial home 

detention. In that circumstance, section 2900.5 requires that the defendant 

receive presentence custody credits for the time spent on home detention 

pursuant to section 1203.018. (§ 2900.5, subd. (a).) However, case law relies 

on constitutional principles of equal protection to expand the list of 

defendants entitled to presentence custody credits while on home detention to 

those “who are out on bail and subject to electronic monitoring” with terms of 

release that are “as ‘custodial, or restraining’ as a statutory home detention 

program pursuant to section 1203.018.” (People v. Gerson (2022) 80 

Cal.App.5th 1067, 1089 (Gerson); see also People v. Raygoza (2016) 2 

Cal.App.5th 593, 602 (Raygoza).) As Raygoza explained, in section 2900.5, 

subdivision (a), “the phrase ‘pursuant to . . . Section 1203.018’ must be read 

to require the award of custody credit if the home-detained defendant 

participated in an electronic monitoring program established ‘pursuant to’

section 1203.018 without regard to the manner in which the defendant came 

to be assigned to the program. The Legislature could not have intended to 
20

exclude home detentions that met the standards outlined in section 1203.018 

from section 2900.5’s definition of ‘in custody’ merely because the defendant 

became a participant as a result of a court order.” (Raygoza, at p. 601.) 

“[T]he focus is properly on whether the placement met certain custodial 

conditions and standards, not the procedure by which the defendant was 

placed.” (Ibid.) In both Gerson and Raygoza, the defendants were subject to 

the home detention conditions equivalent to those imposed by section 

1203.018 because they were ordered to be confined to their homes at all times 

except for certain defined exceptions, and were otherwise subject to electronic 

monitoring and supervision. (Raygoza, at p. 600 [there was no “dispute that 

appellant’s electronically-monitored confinement was subject to the 

conditions described in section 1203.018: he was tagged with an electronic 

monitor, he was required to remain in his home during the hours designated 

by the administrator”]; Gerson, at p. 1090 [“Gerson was required to remain in 

his home during the hours designated by the court.”].)

Here, as the trial court properly ruled, Fischer did not spend any time 

on pretrial home detention under either of the circumstances entitling a 

defendant to presentence custody credits based on section 1203.018. First, 

Fischer was not selected by a county correctional administrator to participate 

in a pretrial home detention program in lieu of bail, as he was continuously 

released on bail pending his conviction and sentencing. Second, the trial 

court did not order that, as a condition of bail, Fischer be placed on any type

of home detention. (Raygoza, supra, 2 Cal.App.5th at p. 602; Gerson, supra, 

80 Cal.App.5th at p. 1089.) Instead, as the trial court confirmed by reviewing 

the reporter’s transcript from the August 20, 2018 bail-review hearing, it 

ordered Fischer to be placed in a GPS monitoring program to ensure that he 

kept away from his alleged victims. The trial court also reviewed the 
21

documents created by CPAC to confirm that CPAC acted in conformity with 

the trial court’s order to limit its role to conducting GPS monitoring of 

Fischer. The forms revealed that although CPAC apparently created some 

confusion by using the same forms for its GPS monitoring of Fischer as it 

uses for its implementation of home detention orders, those forms were 

modified to strike out all of the items relating to home detention. Further, 

the relevant forms implementing CPAC’s monitoring of Fischer stated: “No 

restrictions to movement other than protected [parties] in [criminal 

protective orders]. No programs. GPS monitor only”; and “Only movement 

restrictions will be Unapproved locations (Exclusion Zones) of protected 

parties.” 

As the trial court determined, the undisputed facts showed that it did 

not order Fischer to participate in home detention of any type, and consistent 

with that order, CPAC never confined Fischer to his home in any manner. 

Therefore, as a matter of law, Fischer was not entitled to any presentence 

custody credits pursuant to section 2900.5 as someone “out on bail and 

subject to electronic monitoring” with terms of release that are “as ‘custodial, 

or restraining’ as a statutory home detention program pursuant to section 

1203.018.” (Gerson, supra, 80 Cal.App.5th at p. 1089.) The trial court’s 

award of an additional 956 days of presentence custody credit for the time 

that Fischer was subject to GPS monitoring by CPAC was accordingly an 

unauthorized sentence that the trial court had the jurisdiction to correct at 

any time. (Gisbert, supra, 205 Cal.App.4th at p. 281.)

3. No Application of Disputed Facts and No Exercise of the Trial 

Court’s Discretion Was Involved in Determining That Fischer 

Was Not Entitled to the Additional Presentence Custody Credits

In arguing that the trial court lacked jurisdiction to vacate its order 

granting additional presentence custody credits, Fischer does not attempt to 
22

argue that he was, in fact, entitled to those credits. Instead, Fischer contends 

that because his entitlement to the credits was a factual issue, the trial court 

did not have jurisdiction to vacate the award of additional credits as an 

unauthorized sentence.16

For this argument, Fischer relies principally on statements made by 

our Supreme Court in People v. Welch (1993) 5 Cal.4th 228, 235 and Scott, 

supra, 9 Cal.4th at page 354. Welch observed that the case law discussing 

“ ‘unauthorized sentence’ and ‘excess of jurisdiction’ concepts” “generally 

involve pure questions of law that can be resolved without reference to the 

particular sentencing record developed in the trial court” and arise from an 

“unwillingness to ignore clear and correctable legal error.” (Id. at pp. 235, 

236.) Later, our Supreme Court in Scott cited Welch in stating that an 

unauthorized sentence may be corrected when the “error is ‘clear and 

correctable’ independent of any factual issues presented by the record at 

16 Fischer states that no such jurisdictional deficiency existed with 

respect to the trial court’s approval of the parties’ May 15, 2020 stipulation 

awarding additional presentence custody credits after Fischer began serving 

his sentence, as a modification in response to a request by a defendant is 

authorized by section 1237.1, which states that “[n]o appeal shall be taken by 

the defendant from a judgment of conviction on the ground of an error in the 

calculation of presentence custody credits, unless the defendant first presents 

the claim in the trial court at the time of sentencing, or if the error is not 

discovered until after sentencing, the defendant first makes a motion for 

correction of the record in the trial court, which may be made informally in 

writing.” (§ 1237.1.) The People have not disputed that the trial court had 

jurisdiction to act on the parties’ stipulation awarding additional presentence 

custody credit to Fischer, and we take no position regarding the trial court’s 

jurisdiction to do so, whether under section 1237.1 or on any other basis. 
23

sentencing.” (Scott, at p. 354, citing Welch, at p. 236.)17 Seizing on these 

statements, Fischer contends that the trial court’s award of the additional 

presentence custody credits to him, even if erroneous, did not qualify as the 

type of unauthorized sentence that can be corrected by the trial court at any 

time because the trial court’s analysis “could not . . . be undertaken without 

addressing and evaluating factual matters in the record.” According to 

Fischer, in assessing whether it improperly approved the stipulation 

awarding additional presentence custody credits to Fischer, the trial court 

“was considering, assessing and weighing facts.”18

17 We note that whatever Welch and Scott intended by their reference to 

“pure questions of law” (Welch, supra, 5 Cal.4th at p. 235) and errors that are 

“ ‘clear and correctable’ independent of any factual issues presented by the 

record at sentencing” (Scott, supra, 9 Cal.4th at p. 354), other case law from 

our Supreme Court establishes that a court may look to the factual record in 

correcting an unauthorized sentence, as long as the facts are undisputed.

Specifically, Fischer cites Neal v. State (1960) 55 Cal.2d 11, as a “seminal 

case” establishing that a sentence ordered in excess of a court’s jurisdiction 

may be corrected at any time. But, in Neal, our Supreme Court looked to the

undisputed facts underlying the defendant’s conviction to determine whether 

one of the counts for which the defendant was sentenced should have been 

stayed pursuant to section 654 because it arose from the same act or omission 

as another count. (Neal, at pp. 17-21.) Following Neal, “[i]t is well settled . . . 

that the court acts in ‘excess of its jurisdiction’ and imposes an ‘unauthorized’ 

sentence when it erroneously stays or fails to stay execution of a sentence 

under section 654” (Scott, at p. 354, fn. 17), which is necessarily a fact-based 

inquiry.

18 To support his contention that a court may not correct an unauthorized 

sentence if it is required to refer to the factual record to do so, Fischer also 

quotes from inapposite cases, which we reject as inapplicable authority 

because they have nothing to do with the correction of an unauthorized 

sentence. (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 287 [in the 

absence of fraud, a trial court may not reconsider and vacate an order 

dismissing a prosecution due to newly presented facts]; People v. McGee
24

We reject Fischer’s argument because the trial court did not resolve any 

disputed factual issues at the September 24, 2021 hearing when it granted 

the People’s motion to vacate the award of the additional presentence custody 

credits. Instead, the trial court’s ruling was based on the undisputed trial 

court record. Specifically, the trial court examined the transcript from the 

August 20, 2018 bail-review hearing to confirm that it did not place Fischer 

on home detention as a condition of bail. The trial court further reviewed the 

undisputed CPAC records to confirm that CPAC followed the trial court’s 

order that Fischer be subject to GPS monitoring to ensure he stayed away 

from his alleged victims. Based on those undisputed facts, Fischer was not 

eligible, as a matter of law, to receive presentence custody credits for the 

period during which he was subject to GPS monitoring by CPAC. The award 

of the additional presentence custody credits was therefore an unauthorized 

sentence, which the trial court had jurisdiction to correct at any time.

Fischer cherry-picks certain statements made by the trial court during 

the September 24, 2021 hearing to give the impression that the trial court’s 

order during the August 20, 2018 bail-review hearing was unclear as to 

whether Fischer was being placed on home detention. For example, in trying 

to understand why the parties had stipulated that Fischer was entitled to 

additional presentence custody credits, the trial court stated on September 

24, 2021 that it was “entirely possible” that it had made “an unclear order.” 

However, based on our review of the record, there was nothing ambiguous 

about the trial court’s order at the August 20, 2018 bail-review hearing. 

Fischer was ordered to be subject to a GPS monitor to ensure that he stayed 

(1991) 232 Cal.App.3d 620, 623-626 [the trial court did not have jurisdiction 

to vacate its order allowing the defendant to withdraw his guilty plea after it 

conducted a factual reevaluation].) 
25

away from the alleged victims, and CPAC carried out that monitoring as 

ordered by the trial court. 

Fischer also relies on several cases which held that the sentence at 

issue could not be categorized as an unauthorized sentence because the issue 

was whether the trial court made an erroneous discretionary sentencing 

decision. (People v. Fond (1999) 71 Cal.App.4th 127, 133-134 [rejecting the 

People’s contention that the trial court ordered an unauthorized sentence 

after determining that a certain sentence would be cruel and unusual, as “the 

trial court relied on its view of the facts in determining the mandated 

sentence to be cruel and unusual”]; In re Wimbs (1966) 65 Cal.2d 490, 498

[the trial court did not have jurisdiction after sentence was pronounced to 

change a consecutive sentence to a concurrent sentence because that ruling 

was “an attempt, in excess of the court’s power, to revise its deliberately 

exercised judicial discretion”]; Scott, supra, 9 Cal.4th at p. 355 [an 

unauthorized sentence does not arise based on fact-specific errors by the trial 

court in making the discretionary decision to aggravate a sentence and 

impose consecutive terms]; Welch, supra, 5 Cal.4th at p. 236 [in challenging 

unreasonable probation conditions, the defendant was not challenging an 

unauthorized sentence because the defendant “essentially argue[d] only that 

the court exercised its otherwise lawful authority in an erroneous manner 

under the particular facts.”].) Those cases are inapposite here because the 

trial court was not making a discretionary decision in determining whether 

Fischer was entitled to the additional presentence custody credits. Instead, it 

determined, as a matter of law, that Fischer had no entitlement to 

presentence custody credits during the time he was subject to GPS 

monitoring.
26

In sum, Fischer was not entitled to the additional presentence custody 

credits as a matter of law, and the trial court therefore had jurisdiction to 

correct the unauthorized award of those credits.

B. The Trial Court’s Order Returning Fischer to Local Prison to Complete 

His Sentence Was Not Fundamentally Unjust

Fischer argues that even assuming we conclude the trial court had 

jurisdiction to vacate the award of the additional presentence custody credits, 

it would be fundamentally unjust to require Fischer to return to jail to 

complete his local prison sentence. 

In support of his argument, Fischer relies on People v. Tanner (1979) 24 

Cal.3d 514. In Tanner, the trial court struck a firearm-use finding and then 

ordered that the defendant be placed on probation, including a one-year jail 

term. (Id. at p. 518, fn. 1.) After the defendant completed the jail term and 

complied with probation, our Supreme Court ruled that the trial court did not 

have the discretion, in furtherance of justice, to strike the firearm-use 

finding, meaning that the defendant should not have been placed on 

probation with a jail term but instead should have been ordered to serve a 

prison term. (Id. at p. 521 [“the trial court erred in striking the use finding 

and sending defendant to county jail rather than to prison”].) Nevertheless, 

our Supreme Court concluded that it would be unfair and unjust to order the 

defendant to serve a prison term after he had already successfully complied 

with probation and completed the erroneously ordered jail term. (Id. at 

p. 522 [“Mr. Tanner having complied with his conditions of probation 

including one year’s stay in county jail we determine a second incarceration 

would be unjust.”].) 

Our Supreme Court has subsequently questioned the correctness of

Tanner, although it has declined to decide whether Tanner remains good law. 

(People v. Statum (2002) 28 Cal.4th 682, 695-697 (Statum); People v. Clancey
27

(2013) 56 Cal.4th 562, 585-586 (Clancey).) “Since Tanner was decided, we 

have never relied on it to pretermit the correction of a sentence that was 

illegally or improperly imposed. This is not surprising. Four months after

Tanner was decided, the Fifth Circuit Court of Appeals vacated the panel 

decision on which Tanner had relied. The sole purpose of the rehearing en 

banc was to disavow the passage that Tanner had quoted. (United States v. 

Denson (5th Cir. 1979) 603 F.2d 1143, 1145[.])” (Statum, at p. 696; accord,

Clancey, at pp. 585-586.) Our Supreme Court has agreed with the reasoning 

employed by the Fifth Circuit in rejecting the case on which Tanner relied. 

“ ‘ “The Constitution does not require that sentencing should be a game in 

which a wrong move by the judge means immunity for the prisoner.” ’ 

[Citation.] We are unaware of any authority that provides ‘the defendant 

with the right to know at any specific moment in time what the exact limit of 

his punishment will turn out to be. . . . His legitimate expectations are not 

defeated if his sentence is increased on appeal any more than are the 

expectations of the defendant who is placed on parole or probation that is 

later revoked.’ [Citation.]” (Statum, at p. 696; accord, Clancey, at p. 586.)

Further, our Supreme Court has “observed that Court of Appeal 

decisions ha[ve] subsequently ‘limited Tanner to circumstances in which 

(1) the defendant has successfully completed an unauthorized grant of 

probation; (2) the defendant has returned to a law-abiding and productive 

life; and (3) “unusual circumstances” generate a “unique element” of 

sympathy, such that returning the defendant to jail “would be more than 

usually painful or ‘unfair.’ ” ’ ” (Clancey, supra, 56 Cal.4th at p. 586.) In both 

Statum and Clancey, our Supreme Court found it unnecessary to decide

whether Tanner remains good law because no unjust circumstances were 
28

presented, even assuming Tanner remains valid law. (Clancey, at p. 586; 

Statum, supra, 28 Cal.4th at p. 696, fn. 5.)

Fischer acknowledges our Supreme Court’s criticism of Tanner, supra, 

24 Cal.3d 514, but he points out that Tanner has not been overruled. Fischer

contends that his case is “one [of] the very rare cases” that satisfies Tanner’s 

requirements because he has been “jerked around between his home and 

county jail.” Citing People v. Lockridge (1993) 12 Cal.App.4th 1752, 1760, he 

contends he has been “ ‘peculiarly put upon by errors in the judicial system.’ ” 

We reject Fischer’s argument based on our Supreme Court’s holding in 

Clancey. Like Fischer, the defendant in Clancey was released from prison 

earlier than he should have been due to an error in calculating his 

presentence custody credits. (Clancey, supra, 56 Cal.4th at pp. 584-585 [the 

trial court improperly “believed defendant could be made eligible for credits 

at [an] accelerated rate once it dismissed . . . the disqualifying allegation that 

defendant had previously suffered a serious or violent felony conviction,” and 

“defendant has already been discharged from custody”].) Clancey determined 

the situation did not give rise to the type of unfairness identified in Tanner

and thus was not grounds for an order relieving the defendant from serving 

the sentence required by law. Clancey explained, “The unfairness in Tanner

arose from the prospect of the defendant serving a specified term in prison 

when he had already ‘complied with his conditions of probation—including 

one year’s stay in county jail.’ Under those circumstances, we said ‘a second 

incarceration would be unjust.’ [Citations.] Here, by contrast, . . . there is no 

prospect that Clancey would be asked ‘to now serve a second term for his 

criminal act’ [citation] or to ‘suffer a punishment in excess of the legal 

maximum.’ [Citation.] . . . All that occurred here is that his prison term was 

erroneously calculated; the days of credit erroneously awarded were days 
29

that he should have—but did not—serve in custody. Because those days were 

not served in county jail or on probation, no issue of a ‘second incarceration’

or ‘second term’ arises.” (Clancey, at pp. 586-587.) Here, as in Clancey, 

Fischer will not be serving a second term of incarceration; he will simply be 

completing his now-correctly-calculated local prison term. It is not 

fundamentally unjust to require Fischer to do so.

DISPOSITION

The trial court’s order vacating its award of an additional 956 days of 

presentence custody credits and remanding Fischer to custody to complete 

serving his local prison term is affirmed.

IRION, Acting P. J.

WE CONCUR:

DATO, J.

BUCHANAN, J.