Opinion
F083264 F083272
02-09-2023
THE PEOPLE, Plaintiff and Respondent, v. VINCENT SOLOMON, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Nos. 15CMS7345B, 15CMS7201. Robert S. Burns, Judge.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION THE COURT [*]
INTRODUCTION
Defendant Vincent Solomon challenges the sentence imposed on him after his prior appeal. Following a nonpublished opinion in defendant's prior appeal in People v. Solomon (Mar. 23, 2021, F078997 [nonpub. opn.] (Solomon I)), the matter was remanded to the trial court with instructions to resentence defendant due to changes in the law under Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) and because the original eight-year sentence was unauthorized.
At resentencing in August 2021, the trial court struck the prior prison term enhancements under Senate Bill 136 and corrected the unauthorized portion of the sentence, which increased the aggregate sentence to 10 years 8 months. Defendant appeals and argues he is entitled to resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), his new sentence violates state law double jeopardy principles, and the abstract of judgment does not include a 1999 in-custody conviction. (Stats. 2021, ch. 731, § 1.) The People concede the case must be resentenced under Senate Bill 567 because upper terms were imposed based on aggravating circumstances not found true by a jury or admitted by defendant; the need for resentencing renders the double jeopardy issue moot but, regardless, the claim is meritless; and a new abstract of judgment issued after resentencing should include the 1999 conviction.
We concur with the parties that the case must be resentenced given the changes in the determinate sentencing law under Senate Bill 567. Further, we conclude any increase from the original sentence resulting from correction of the unauthorized aspect does not violate state law double jeopardy principles. Finally, the abstract of judgment does not include all of the in-custody offenses that were sentenced; upon resentencing, the new abstract of judgment shall include all of the in-custody offenses.
We take judicial notice of this court's prior nonpublished opinion in Solomon I; at the People's request, which is granted, we also take judicial notice of the entire record on appeal in Solomon I, case No. F078997.
Defendant was sentenced to 27 years 4 months for an out-of-custody offense committed in Sacramento County. In 1999, defendant was convicted of an in-prison offense (possession of a controlled substance in prison, Pen. Code, § 4573.6) while serving his sentence for the out-of-custody offense, and he was sentenced to a consecutive two-year term under section 1170.1, subdivision (c).
All further statutory references are to the Penal Code unless otherwise indicated.
In 2016, while still serving the sentence for his out-of-custody offense, defendant was convicted of conspiring to possess a controlled substance while in prison (§ 182, subd. (a)(1)) and of bringing or sending a controlled substance into prison (§ 4573) (Kings Super. Ct. case No. 15CMS7345B; Case 1). In a bifurcated proceeding, the jury found true prior strikes under the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), subjecting defendant to a two-strike sentence. (§ 667, subd. (e)(1) (hereafter § 667(e)(1) or section 667(e)(1).) The jury also found true two of three prior prison term allegations under section 667.5, subdivision (b).
While sentencing was pending in Case 1, defendant was convicted of an additional in-prison offense (§ 4501.5) in a second case (Kings Super. Ct. case No. 15CMS7201; Case 2) with prior strikes under the Three Strikes law alleged and found true. These two cases were sentenced together in March 2019. In Case 1, defendant was sentenced on count 1 to double the upper term based on a strike prior for a total of eight years (§ 182, subd. (a)(1)), which was then stayed under section 654. On count 2, the trial court imposed double one-third of the three-year middle term (for a total of two years) (§§ 667(e)(1), 4573). The court sentenced defendant to one year each for the three prior prison term enhancements, but stayed one of them because it appeared to the court it was served at the same time as another prior prison term found true by the jury. In Case 2, the court imposed double one-third of the six-year middle term (for a total of two years).
On appeal, we concluded the principal term selected from among the in-custody offenses was not the greatest term imposed as required under section 1170.1, resulting in an unauthorized sentence. (§ 1170.1, subd. (c); see People v. McCart (1982) 32 Cal.3d 338, 344 [court must impose the first or most serious in-prison consecutive sentence as the new, full principal term]; People v. Venegas (1994) 25 Cal.App.4th 1731, 1744 [§ 1170.1, subd. (c), required sentencing judge to impose a single aggregate sentence for both of the defendant's in-prison offenses even though they occurred far apart in time]; see also Levenson et al., Cal. Criminal Procedure (The Rutter Group 2022) ¶ 25.65.) We remanded for resentencing with instructions to correct the unauthorized sentence by selecting the greatest term imposed among all in-custody offenses as the principal term, to strike the section 667.5, subdivision (b), enhancements, and to issue one abstract of judgment for all of the in-custody offenses.
At resentencing in August 2021, the trial court struck the prior prison term enhancements pursuant to Senate Bill 136 and modified the unauthorized portion of the sentence by selecting count 2 in Case 1 (§ 4573) as the principal term. This resulted in an aggregate sentence of 10 years 8 months as follows: an upper term of eight years for count 2, Case 1 (§§ 667(e)(1), 4573); an upper term of eight years for count 1, Case 1 (§§ 182, subd. (a)(1), 667(e)(1)), stayed under section 654; a consecutive two-year term for the conviction in Case 2 (§ 4501.5) (one-third the middle term of three years, doubled for the strike prior); and a consecutive eight-month term for the 1999 conviction (purportedly one-third of a middle term). Defendant appeals this sentence.
Defendant filed an appeal in Case 1 (Kings Super. Ct. case No. 15CMS7345B) and Case 2 (Kings Super. Ct. case No. 15CMS7201) to challenge the August 2021 sentence. The two separate appeals have been consolidated under case No. F083264.
DISCUSSION
I. Senate Bill 567
As amended by Senate Bill 567, effective January 1, 2022, section 1170 now provides, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2)." (Id., subd. (b)(1).) "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial..." (Id., subd. (b)(2).)
Although defendant was resentenced in 2021, "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date." (People v. Gentile (2020) 10 Cal.5th 830, 852, citing In re Estrada (1965) 63 Cal.2d 740, 744-745; accord, People v. Esquivel (2021) 11 Cal.5th 671, 673, 675-676.) "This presumption 'rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (Gentile, supra, at p. 852; accord, People v. Esquivel, supra, at p. 675.) There is no dispute that Senate Bill 567 is ameliorative and applies in this nonfinal case. (People v. Dunn (2022) 81 Cal.App.5th 394, 402-403; People v. Banner (2022) 77 Cal.App.5th 226, 240.)
At resentencing, the court based its decision to impose the upper terms for the offenses in Case 1 based on the same circumstances identified at the original sentencing hearing. At the original sentencing, the trial court imposed an upper term in Case 1, count 1, based on the following factors: "defendant did induce someone he referred to as his nephew to participate in the crime and he occupied a position of leadership in that crime himself"; the manner in which the crime was committed demonstrated both planning and criminal sophistication; the crime involved a large quality of contraband; defendant has a "lengthy criminal history beginning in the early 1980s and continuing through today"; and his prior performance on probation and parole had been unsatisfactory. (See Cal. Rules of Court, rule 4.421(a)(4), (a)(8), (a)(10), (b)(5).)
Defendant argues the trial court relied on aggravating circumstances to impose the upper term in a manner that is now impermissible under Senate Bill 567. Many of the aggravating circumstances were based on case-specific facts that were not found true by a jury beyond a reasonable doubt or admitted by defendant (§ 1170, subd. (b)(2)), and circumstances related to prior offenses were not substantiated by certified records of conviction (id., subd. (b)(3)). The People concede that because "the trial court apparently relied upon factors in aggravation that were neither admitted by [defendant] nor found to be true beyond a reasonable doubt, the trial court should resentence [defendant] consistent with the changes made to section 1170, subdivision (b), under the authority granted by Senate Bill No. 567." We accept the People's concession.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,'" and where the defendant has been sentenced in the absence of informed discretion, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Flores (2020) 9 Cal.5th 371, 431-432.) In light of the ameliorative amendment to section 1170 under Senate Bill 567 and the absence of any clear indication from this record that remand would be futile, defendant is entitled to be sentenced by a court exercising discretion informed by the law as it now stands. Therefore, remand for resentencing is the appropriate remedy in this case.
II. Double Jeopardy
The court originally sentenced defendant to an aggregate term of eight years. In Solomon I, we concluded the greatest term imposed among all of defendant's in-custody offenses was not selected as the principal term, which resulted in an unauthorized sentence. At resentencing, the trial court imposed the upper eight-year term on count 2 in Case 1 and designated this as the principal term (§§ 182, subd. (a)(1), (a)(6), 667, subd. (e)(1)); the court also imposed the upper eight-year term on count 1 in Case 1 (§§ 4573, 667(e)(1)), but stayed the sentence pursuant to section 654. The remaining subordinate terms were imposed consecutively: a two-year term imposed for the conviction in Case 2 (one-third the middle term of six years (§§ 4501.5, 667(e)(1)), and eight months for the 1999 offense under section 4573.6 (one-third the low term of two years). Thus, the aggregate term for the in-custody offenses was 10 years 8 months.
The base sentencing triad for section 4573.6 is two, three or four years; this was the base triad at the time of defendant's offense and 1999 sentencing. (§ 4573.6; see Stats. 1990, ch. 1580, § 4.) One-third the middle term of three years is one year rather than eight months. This portion of the August 2021 sentence was unauthorized.
Defendant argues this sentence violates California's prohibition on double jeopardy, and, even to the extent remand is required for resentencing under Senate Bill 567, this court should exercise its discretion to reach the issue and order the trial court not to exceed the length of the original aggregate sentence of eight years upon resentencing. The People maintain because defendant must be resentenced under Senate Bill 567, the issue is moot and should not be addressed. On the merits, the People contend any aggregate increase in the original sentence due to addressing the unauthorized portion is not subject to double jeopardy principles.
We agree with the People that the issue is technically moot because the existing sentence must be vacated for resentencing under Senate Bill 567, but we exercise our discretion to reach it. This issue will likely arise again on resentencing, the parties have fully briefed the matter, and given recent changes in the law that often necessitate resentencing, application of state law double jeopardy principles remains a continuing issue of public interest. (See Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 867 [general rule regarding mootness is tempered by court's discretionary authority to decide moot issues].)
In California, the prohibition on double jeopardy, California Constitution, article I, section 15, generally prevents imposition of a greater sentence on remand following appeal-i.e., the Henderson rule. (People v. Henderson (1963) 60 Cal.2d 482, 495-497 (Henderson); see People v. Hanson (2000) 23 Cal.4th 355, 357; see also People v. Price (1986) 184 Cal.App.3d 1405, 1408 (Price II).) Double jeopardy principles are meant "to preclude vindictiveness and more generally to avoid penalizing a defendant for pursuing a successful appeal." (People v. Collins (1978) 21 Cal.3d 208, 216.)
However, in People v. Serrato (1973) 9 Cal.3d 753 (Serrato), disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, footnote 1, the California Supreme Court set out an exception to the Henderson rule. In Serrato, the high court held the Henderson rule "is otherwise when a trial court pronounces an unauthorized sentence. Such 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, at p. 764, fn. omitted.)
In Price II, a panel of this court applied the Serrato exception to an unauthorized sentence that was increased upon resentencing after appeal. Originally, as discussed in People v. Price (1984) 151 Cal.App.3d 803 (Price I), the defendant was convicted of four sex offenses and two counts of robbery; attached to each conviction, the jury had found true weapon enhancement allegations. The trial court imposed fully consecutive upper terms on each of the four sex offenses (eight years each) pursuant to section 667.6, subdivision (c), each with a three-year weapon enhancement-two of which were stayed and one was not mentioned at all in sentencing (see Price II, supra, 184 Cal.App.3d at p. 1411); the trial court also imposed concurrent three-year middle terms on each of the robbery convictions, each with a one-year weapon enhancement that were also stayed. The aggregate sentence imposed was 35 years (four 8-year upper terms for a total of 32 years, plus one 3-year weapon enhancement). (Price I, supra, at pp. 809-810.)
On appeal, although affirming the convictions, this court concluded the sentence was unauthorized in the following respects: one of the robbery convictions was required to be imposed consecutive rather than concurrent to the sex offenses under section 1170.1 (Price I, supra, 151 Cal.App.3d at p. 817), and while the trial court had the authority to strike the weapon enhancements under section 1385, it had not stated any reasons for doing so; rather, it had impermissibly stayed those enhancements under section 654 (Price I, supra, at pp. 818-819; see Price II, supra, 184 Cal.App.3d at p. 1411).
At resentencing, the trial court increased the sentence from the original 35 years to a 50-year aggregate total: fully consecutive upper eight-year terms for all four sex offenses (32 years), each with a three-year weapon enhancement (12 years); a fully consecutive upper five-year term for one robbery count with a stayed one-year weapon enhancement, followed by a consecutive one-year term for the second robbery count (one-third the three-year middle term), with an attached but stayed one-year weapon enhancement. (Price II, supra, 184 Cal.App.3d at pp. 1407, fn. 2, 1415, appendix A.). The appellate court concluded the increases in the original sentence to correct the unauthorized aspects (the impermissibly stayed weapons enhancements and the failure to impose a consecutive sentence for one robbery count) were increases within the Serrato exception. (Id. at p. 1412.)
The Price II court also held, however, that the trial court's treatment of the robbery convictions was not within the Serrato exception because this caused a three-year increase from the original 35-year sentence that had nothing to do with correcting the unauthorized portions. The defendant had originally and lawfully been sentenced to a three-year middle term for one robbery conviction, but on resentencing the trial court imposed a five-year upper term and then, rather than imposing the second robbery conviction to run concurrently as before, the trial court ran it consecutively at one-third the three-year middle term of one year. The result was an impermissible three-year increase from the original sentence that violated the Henderson rule because this increase had no nexus to the original illegality in the sentence. (Price II, supra, 184 Cal.App.3d at p. 1413.)
A few years later, in People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa), the appellate court noted the Serrato exception would not apply to a correction of an unauthorized sentence that caused an increase from the original aggregate sentence. (Mustafaa, supra, at pp. 1311-1312.) The defendant had pled guilty to three counts of robbery while personally armed with a firearm, among other things. (Id. at p. 1309.) The trial court selected one of the robbery counts as the principal term and imposed a middle three-year term for that conviction plus an upper five-year term for the gun enhancement; on the remaining robbery convictions the trial court imposed concurrent terms but imposed the gun enhancements attached to these robbery felonies to run consecutive to the principal term. (Ibid.) The appellate court explained an enhancement could not be imposed as a subordinate term on its own, separate from the attached offense. (Id. at p. 1310.) The resulting punishment, in light of the trial court's lawful election to run the two robbery felony convictions concurrently, was unauthorized-the enhancement terms had to be imposed in the same manner as the felony offenses to which they were attached. (Id. at p. 1311.) The court then explained the rule against double jeopardy would apply on remand for resentencing "because the [trial] court [had] imposed a legal aggregate sentence, only fashioning it in an unauthorized manner. The court's error in separating the convictions from their attendant enhancements, though unauthorized by law, does not make the total sentence illegal. On remand the court may not impose a total sentence more severe than the sentence originally imposed." (Id. at pp. 1311-1312.)
Similarly, People v. Torres (2008) 163 Cal.App.4th 1420 (Torres) involved an unauthorized sentence that was unlawfully harsh. There, the defendant was convicted of one count of attempting to dissuade a witness and one count of issuing a criminal threat, and on each count a gang enhancement allegation was found true. (Id. at p. 1424.) At sentencing, the trial court struck the gang enhancement allegations, imposed what it believed was the upper term of seven years for the criminal threat conviction and imposed and stayed a middle term for the conviction of attempting to dissuade a witness. (Id. at p. 1427.) No appeal followed, but the Department of Corrections and Rehabilitation sought clarification of the sentence by letter, pointing out the upper term for the criminal threat conviction was three years, not seven. The trial court recalled the sentence under section 1170, subdivision (d). (Torres, supra, at p. 1427.)
At resentencing, the trial court reversed course and refused to strike the gang enhancements. The enhancements triggered an alternative sentencing scheme of seven years to life on the criminal threat conviction, which the trial court imposed. (Torres, supra, 163 Cal.App.4th at p. 1428.) On appeal, a panel of this court held the life sentence violated double jeopardy principles because the Serrato unauthorized-sentence exception did not apply. (Torres, supra, at pp. 1432-1433.) After reviewing several cases that involved the Serrato exception, the court noted in all of them the defendant either received a sentence equal to or lesser than his original sentence or received a greater sentence only when the court's sentence demonstrated a "legally unauthorized leniency that resulted in an aggregate sentence that fell below that authorized by law." (Torres, supra, at p. 1432.) The Torres court emphasized the statements in Mustafaa that "'the rule against double jeopardy applies because the court imposed a legal aggregate sentence, only fashioning it in an unauthorized manner,'" and, although "'unauthorized by law,'" this did "'not make the total sentence illegal.'" (Torres, supra, at p. 1432, quoting Mustafaa, supra, 22 Cal.App.4th at pp. 1311-1312.) The Torres court pointed out "the aggregate sentence of seven years imposed on [the] defendant at the original sentencing hearing could have been lawfully achieved" by a different combination of discretionary choices, and thus "it did not fall below the mandatory minimum sentence and was therefore not a legally unauthorized lenient sentence." (Torres, supra, at p. 1432.) The court concluded that "[p]rinciples of double jeopardy as well as the mandate of section 1170, subdivision (d) require that under these circumstances the trial court may not impose a sentence longer than originally imposed [upon resentencing]." (Id. at pp. 1432-1433.) In other words, it was impermissible for the trial court to correct the authorized portions of the sentence-i.e., striking the gang enhancements-if that correction would lead to an increase over the original sentence.
Here, defendant argues the Serrato exception was effectively narrowed by Torres and Mustafaa such that making upward corrections to an unauthorized sentence comes within the Serrato exception only if the unauthorized sentence falls below the lowest mandatory minimum sentence that could ever be lawfully imposed in the case. Relying on language in Torres, defendant contends unauthorized sentences that are simply unlawfully lenient in certain aspects, but do not result in an aggregate sentence that falls below the lowest mandatory minimum sentence lawfully possible, do not come within the Serrato exception to the Henderson rule. Applying this narrowed Serrato exception, defendant argues his original eight-year sentence was unauthorized because the principal term was not the greatest term imposed, but the aggregate sentence was not below the minimum prison sentence allowed by law. Theoretically, defendant maintains, the trial court could have made different sentencing choices for a lawful term as low as four years by imposing a four-year low term (rather than the high term selected) as the principal term in Case 2 and impose the remaining terms (for the conviction on count 2, Case 1, and the 1999 conviction) to run concurrent to the principal term. Since the unauthorized sentence did not result in an aggregate sentence lower than that theoretical four-year minimum, the sentence was not unlawfully lenient and did not come within the Serrato exception. As a result, defendant argues, the court at resentencing is prohibited from imposing a sentence greater than the original eight-year aggregate sentence.
We are unpersuaded. The holding in Torres is correct: the increased sentence on remand did not come within the Serrato exception because the increase was unrelated to correcting the unauthorized portion of the sentence. Further, Torres's reliance on Mustafaa as an analogous application of the Serrato rule was appropriate. We part ways, however, with Torres's reasoning to the extent it indicates (or can be interpreted as indicating) the Serrato exception for correcting unauthorized sentences is limited to those instances where the resulting aggregate sentence falls below the lowest mandatory sentence that could be lawfully imposed.
First, this is not consistent with Price II, a published case of this court that predates Torres and was not examined or cited by Torres. The unauthorized aspects of the sentence examined in Price I resulted in an unlawfully lenient sentence because two enhancements were improperly stayed, and a robbery count should have been run consecutively; but even with these unauthorized components, the aggregate sentence was still within the lawful sentencing range for this combination of offenses. Under defendant's reading of Torres, since the unauthorized aspects of the sentence in Price II did not cause the aggregate sentence to dip below the minimum sentence that could ever be lawfully imposed, Serrato's exception could not apply, and the resentencing court would have violated the Henderson rule by correcting the unauthorized aspects of the sentence in any manner that increased the aggregate sentence above the original 35 years. This, of course, is exactly the opposite of what Price II held. (Price II, supra, 184 Cal.App.3d at p. 1412 [correction of unauthorized aspects of sentence that increased the punishment was "condoned under the Serrato rule"].) Consistent with Price II, at least one other published decision has rejected such a narrow approach to the Serrato exception. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 438 [explaining the fact the original aggregate sentence, although unauthorized, theoretically could have been imposed in a different, lawful manner did not mean corrections to the unauthorized portions that increased the original sentence were outside the Serrato exception].)
Second, to the extent Torres appears to narrow the Serrato exception based on language in Mustafaa, we interpret Mustafaa differently and in accord with Price II. As Price II explained, when a resentencing occurs due to an unauthorized sentence, the Serrato exception does not allow the resentencing court to modify the lawful portions of the sentence in a manner that increases the sentence beyond the original. In Mustafaa, by indicating the court "imposed a legal aggregate sentence" (Mustafaa, supra, 22 Cal.App.4th at p. 1311), and the unauthorized portion did "not make the total sentence illegal" (id. at p. 1312), Mustafaa was effectively pointing out, consistent with Price II, that after reducing the sentence to correct the unauthorized portion (not imposing the enhancements consecutively), the lawful portions could not then be adjusted to increase the sentence beyond that originally imposed-that would be outside the Serrato exception and barred by the Henderson rule. For example, since the trial court in Mustafaa had lawfully elected to run the subordinate robbery counts concurrently, it could not make a different discretionary decision on resentencing that would result in a harsher sentence than the original, such as imposing the robbery convictions (and, thus, the attached enhancements) to run consecutively.
Third, narrowing the Serrato exception in this manner would prevent courts from correcting unauthorized sentences that necessitate an upward departure from the original sentence. Where an unauthorized sentence could not be corrected without increasing the original sentence, the only other option would be to force the resentencing court into different discretionary choices to prevent the aggregate sentence from exceeding the original. This undercuts the purpose of the Serrato exception. As Serrato noted, "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." (Serrato, supra, 9 Cal.3d at p. 765.)
The meaningful distinction between Torres and Mustafaa and cases like defendant's and Price II is the nature of the unauthorized sentence. When an unauthorized sentence results in a harsher punishment than legally authorized in some respect, correcting that portion of the unauthorized sentence will produce a lesser sentence than originally imposed; as a result, the only way to increase the aggregate sentence at resentencing beyond the original sentence is by making changes to the legal portions of the sentence. This type of modification is not meant to correct an unauthorized sentence and, therefore, does not come within the Serrato exception if it increases the sentence beyond the original aggregate total. (Price II, supra, 184 Cal.App.3d at p. 1413 ["If an increase in penalty has no nexus to the original illegality in the sentence, [t]he general rule applies that in California a harsher penalty may not be imposed after a successful appeal."].) In such an instance, while a sentencing court is empowered to revisit its other lawful discretionary choices on resentencing, it cannot do so in a manner that exceeds the original sentence (or the maximum lawful top of the sentencing range if it is less than the original sentence). (See People v. Calderon (1993) 20 Cal.App.4th 82, 88 [in resentencing unauthorized sentence, it is "perfectly proper" for a trial court to reimpose the same aggregate sentence in a different manner so long as lawful].) This is the ultimate holding of both Torres and Mustafaa, which is correct and echoes the holding in Price II.
On the other hand, when a sentence is unauthorized in some aspect that renders it unlawfully lenient (e.g., a term required to be consecutive was imposed to run concurrently), almost any action taken to address that unauthorized aspect will necessarily cause an uptick from the original aggregate sentence absent a downward modification to other lawful portions of the sentence-which a trial court remains free to do. In this instance, the Serrato exception applies to correct only the unauthorized portion of the sentence if that correction causes an increase from the original aggregate sentence. That is the application of the Serrato exception in Price II, and it applies here.
Like the unauthorized portions of the sentence in Price II, the unauthorized portion of the original sentence here resulted in an unlawful leniency because the greatest term imposed was not designated as the principal term. This incorrectly resulted in a principal term of two years rather than a principal term of eight years. Without making any new discretionary changes to the lawful portions of the sentence, correcting the unauthorized portion increased the aggregate sentence to 10 years 8 months, which was greater than the original eight-year sentence. This increase was permissible under the Serrato exception. On remand for resentencing under Senate Bill 567, the court may impose a sentence greater than the original eight-year aggregate sentence so long as that increase is the result of addressing an unauthorized portion of the sentence. And, of course, the court may revisit its discretionary choices to make downward departures from them that it deems appropriate.
We have identified a new unauthorized aspect of the August 2021 sentence in miscalculating the middle term for the 1999 conviction as two years rather than three; thus, one-third the middle term should have been one year rather than eight months. This must be corrected at resentencing.
III. Abstract of Judgment
Finally, we previously ordered the trial court to issue one abstract of judgment for all of the in-custody convictions, which includes the 1999 conviction. The parties note, and the record confirms, the 1999 conviction was not included in the abstract of judgment issued after the August 2021 resentencing. Upon resentencing all of the in-custody convictions together, including the in-custody conviction suffered in San Joaquin County in 1999, one abstract of judgment shall be issued that includes all of the in-custody offenses.
DISPOSITION
We vacate the August 2021 sentence and remand this matter for resentencing under Senate Bill 567 and consistent with this opinion. Upon resentencing, a new abstract of judgment, including all in-custody convictions, shall be issued and forwarded to the appropriate authorities.
[*] Before Franson, Acting P. J., Meehan, J. and Snauffer, J.