Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA071860. Robert M. Martinez, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Larry Hernandez appeals his resentencing on remand after we reversed his conviction for first degree murder and gave the People the option of accepting a reduced conviction of second degree murder or retrying defendant’s first degree murder conviction. The People chose to accept a reduced sentence, and the trial court resentenced defendant. He contends on appeal that the trial court was vindictive in resentencing him to consecutive, rather than concurrent sentences, and his 16-years-to-life sentence for an unintended homicide violates the prohibition on cruel and unusual punishments, and asks that on remand we order his resentencing to be heard by a different judge. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Defendant’s Conviction of First Degree Murder.
Hernandez was tried with codefendant Victor Hernandez (no relation) in a jury trial for the fatal shooting of Gregory Acuna.
Defendant and Victor Hernandez were members of the Lomas Street gang. The Lomas gang claimed the Rosemead area as its territory. A rival gang, Sangra, claimed San Gabriel as its territory. Neither gang claimed the City of West Covina, where the shooting took place.
Alejandro Valadez knew defendant and Victor Hernandez. Valadez had met them through childhood friends Marcus Gallardo and Paul Garcia, also members of the Lomas gang. Gallardo was the brother of Monique Gallardo, with whom Valadez had a child. Although not a member of the Lomas gang, Valadez had several friends who were members of the gang.
Valadez was living with Monique and their infant child at her mother’s house in West Covina in December 1994. He had been living there for two years. Monique’s brother Marcus Gallardo also lived at the house. On New Year’s Eve 1994, a group of Lomas gang members gathered at the West Covina house to celebrate the New Year. The group included defendant, Victor Hernandez, Marcus Gallardo, Danny Hernandez, Paul Garcia, Jose Menchaca, Robert Ramirez and Brent Avila. Valadez came home from work and joined the group.
Sometime before that day he had learned from Lomas gang members that a Sangra gang member was living in the neighborhood. Valadez looked out the window that night and saw a young man walking on the sidewalk in front of the house. The young man was wearing baggy pants, baggy shirt, and a black jacket. Although Valadez had not seen him before, he assumed that the young man was the Sangra gang member who had been reported to be living in the neighborhood. The young man was Gregory Acuna, the victim, who was not a member of the Sangra gang.
Valadez yelled out to the others at the party. He expected that they would “go up to him, jump him maybe.” By “jump” he meant to “beat him up.” Valadez did not intend to personally confront the man. Defendant, Victor Hernandez and another man ran out and confronted Acuna, saying: “Where are you from?” which was a question asking about Acuna’s gang affiliation. Valadez walked out of the house onto the grass in front, holding his baby in his arms. Acuna was trying to walk away with the three following him. Defendant tried to pull Acuna’s jacket off, and Victor Hernandez took a swing at Acuna. As Acuna tried to get away, Victor Hernandez pulled out a gun and started shooting at him. Acuna ran across the street as Victor Hernandez continued firing at him. Valadez heard a total of four or five shots.
The jury convicted defendant and Victor Hernandez of first degree murder of Acuna. The jury further found true allegations pursuant to Penal Code sections 12022, subdivision (a)(1) and 186.22, subdivision (b)(1)(A) as to defendant. In a bifurcated proceeding, the trial court found true the special circumstance allegation that defendant had sustained a prior conviction of first degree murder within the meaning of section 190.2, subdivision (a)(2).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury convicted codefendant Victor Hernandez of one count of first degree murder, with true findings pursuant to sections 12022.5, subdivisions (a), 1203.06, subdivision (a)(1), 12022, subdivision (a)(1), and 86.22, subdivision (b)(1)(A). We modified his sentence to strike a three-year sentence imposed pursuant to section 186.22, subdivision (b)(1) and otherwise affirmed the judgment as to Victor Hernandez. (People v. Hernandez (Dec. 8, 2008, B202401) [nonpub. opn.].)
At defendant’s sentencing hearing, the prosecution asked for 25 years to life to run concurrently, or life without the possibility of parole (LWOP), also running concurrently, observing that “whether it’s concurrent or consecutive, practically speaking makes little difference but I’ll submit on that.” The court stated “it is the judgment of this court that probation be denied. Denial can be based solely on the fact that defendant is currently serving a term in state prison of life without the possibility of parole. More importantly, defendant poses an obvious serious and compelling danger to others. [¶] It is the judgment of this court that defendant be sentenced to the state prison for the term of life without the possibility of parole. [¶]... [¶] The court questions at this time whether it really has an ability to impose consecutive lifes without the possibility of parole, and the reality is that [if] for whatever reason the prior conviction [is] upset this one would step right in to fill in any gap. So the court is going to allow to run concurrent by operation of law.” The court sentenced defendant to a term of life in prison without the possibility of parole, plus one year, with the sentence to run concurrently with defendant’s life sentence on the first degree murder conviction in case No. KA027773.
On April 3, 1996, defendant suffered a prior conviction for first degree murder in case No. KA27773 and was sentenced to life without possibility of parole.
On appeal, we reversed defendant’s first degree murder conviction, finding the trial court erred in responding to a jury question relating to aider and abettor liability. We gave the People on remand the option of seeking a new trial or accepting a conviction to second degree murder.
2. Defendant’s Resentencing.
On remand, the People waived retrial, agreed to sentencing for second degree murder, and requested a sentence of 16 years to life plus one year for the weapons enhancement. Defendant advised the court that because his prior sentence had run concurrently, the court was required to sentence him concurrently on the second degree conviction. The court stated, “The prohibition of increasing a defendant’s sentence following appeal is primarily the chilling effect it would have on one’s right to appeal. In light of the fact that he was under a sentence of life without the possibility of parole, my sentence was another life without the possibility of parole. Now it’s 16 to life. And the court is of the view that it has the discretion to run it consecutive to his earlier case....” Defendant argued that theoretically there would not have been a consecutive sentence in the prior case. The People argued that “what the court did at the first sentencing hearing was to assure that the defendant would never be released from prison if something were to happen with the first LWOP sentence[, ]... [h]e doesn’t have the backup LWOP sentence, and the court was basically trying to assure that he would never get out. So I think the court would still have the discretion to make this now 16 to life consecutive in the rare chance the something would happen to the first LWOP sentence.” The court disagreed with defendant’s argument that his present sentence would stand alone regardless, observing that “if something happened to the ineligibility of parole, if for some reason [in] the future the ineligibility was lifted, then my consecutive term would begin.”
The court imposed consecutive sentences. The court noted that it had “taken into consideration that they are separate occasions involving separate victims. And it’s the court’s view that in light of the fact that... they’re consecutive sentences, he’s not entitled to credit to the 668 days because those will be credited to his first case and this case will start anew....” The court struck the special circumstance finding, and gave defendant a 16-years-to-life sentence.
DISCUSSION
I. IMPOSITION OF CONSECUTIVE SENTENCES ON REMAND.
Defendant argues that because he is already serving a life without possibility of parole sentence in case No. KA027773, the consecutive sentences imposed on remand resulted in a harsher net increase in his sentence. Defendant argues that his sentencing on remand was vindictive and violated his due process rights because his sentence was ordered to run consecutively to his life without possibility of parole on a 1996 murder conviction. (North Carolina v. Pearce (1969) 395 U.S. 711, 723–725 [89 S.Ct. 2072, 23 L.Ed.2d 656].) The People contend that defendant’s sentence is not more severe because he now becomes eligible for parole; further, the court’s decision to run his sentences consecutively was not vindictive, but was meant to ensure defendant remained incarcerated as long as possible.
Under federal constitutional law, a judge is not precluded from imposing a more severe sentence upon reconviction. (North Carolina v. Pearce, supra, 395 U.S. at p. 723.) However, due process requires that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” (Id. at p. 725.) In Pearce, the Supreme Court concluded that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” (Id. at p. 726.) Further, Pearce held the reasons “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (Ibid.) Subsequently, the Supreme Court held that the Pearce rule applies only where there is a reasonable likelihood the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. (Alabama v. Smith (1989) 490 U.S. 794, 799–800 [109 S.Ct. 2201, 104 L.Ed.2d 865]; People v. Williams (1998) 61 Cal.App.4th 649, 657.) “Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness....” (Alabama v. Smith, at pp. 799–800.)
Although under federal constitutional double jeopardy principles a defendant may be sentenced to a greater term on resentencing, under the double jeopardy clause of the California Constitution, defendants are afforded protection against a more severe sentence on retrial. In People v. Hanson (2000) 23 Cal.4th 355 (Hanson), the court affirmed the principle that a defendant may not be sentenced to a greater term upon successful appeal of his conviction. (Id. at p. 357; People v. Henderson (1963) 60 Cal.2d 482, 497.) Henderson reasoned that a defendant should not have to choose between exercising the right to appeal and the risk of a greater punishment on retrial. “A defendant’s right of appeal from an erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that right. Since the state has no interest in preserving erroneous judgments, it has no interest in foreclosing appeals therefrom by imposing unreasonably conditions on the right to appeal.” (Henderson, at p. 497.) On the same rationale, a defendant who was originally given concurrent sentences may not be resentenced upon retrial to consecutive sentences. (People v. Ali (1967) 66 Cal.2d 277, 281.) “Where a defendant has been sentenced to concurrent terms and then upon a retrial is sentenced to consecutive terms for the same offenses, his punishment has been increased by indirect means.” (Id. at p. 281.)
An LWOP sentence is an indeterminate sentence without a minimum term; namely, it is neither a determinate term nor an indeterminate sentence that carries a minimum term. (People v. Smithson (2000) 79 Cal.App.4th 480, 503.) For this reason, because 16 years is a lesser term than a life sentence, a sentence of 16 years to life is a lesser sentence than a sentence of life without possibility of parole. The fact that defendant’s first sentence consisted of two concurrent LWOPs and on resentencing his sentence was set to run consecutively is of no consequence to our analysis because the minimum parole eligibility, 16 years, is less than a life term.
We need not consider defendant’s request that we direct the matter on remand to be assigned to a new judge pursuant to Code of Civil Procedure section 170.1, subdivision (c) because our conclusion his sentence was not more severe renders remand unnecessary.
DISPOSITION
The judgment of conviction of the Superior Court is affirmed.
We concur: MALLANO, P.J., ROTHSCHILD, J.