Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF116457, Helios (Joe) Hernandez, Judge.
Richard Jay Moller, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
“A jury convicted defendant [Larry Scott Thompson] of inflicting corporal injury on his wife (Pen. Code, § 273.5, subd. (a)), during which he used a firearm (§ 12022.5, subd. (a)(1)), and kidnapping for rape or oral copulation (§ 209, subd. (b)(1)), assault with intent to commit rape (§ 220), forcible rape (§ 261, subd. (a)(2)), forcible penetration with a foreign object (§ 289, subd. (a)(1)), and incest (§ 285, subd. (a)(1)).” (People v. Thompson (Dec. 18, 2007, E040252) [nonpub. opn.], p. 2.) The court that presided over trial (hereinafter, “the trial court”) reduced defendant’s conviction for aggravated kidnapping to simple kidnapping and sentenced him to prison for 32 years. He appealed, claiming errors occurred at trial and at sentencing. We rejected his contentions concerning trial error and affirmed his convictions. We did not address his assignments of error in sentencing because we agreed with the People that the trial court’s reduction of his conviction for aggravated kidnapping was improper and we reinstated that conviction and remanded the entire sentence for resentencing. Upon resentencing, the court below (hereinafter the “resentencing court”) imposed a determinate sentence of 30 years and an indeterminate sentence of 7 years to life. Defendant here appeals, claiming the resentencing court violated his right against double jeopardy by imposing, on one of the counts, a greater term than the trial court had previously. We reject his contention and affirm, while correcting an error in the declaration of the sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
A different judge than the one that presided at trial conducted the resentencing.
Thankfully, the sickening facts of this case need not be recounted here.
The trial court, at defendant’s original sentencing, imposed the midterm of three years for his infliction of corporal injury on his spouse (count 1). It also imposed a one year, eight months term for assault with intent to commit rape (count 4). The resentencing court chose to stay the midterm for this count under section 654. The resentencing court did the same on count 7, incest. The resentencing court imposed the upper term for count 1. Defendant claims that this violated his right against double jeopardy.
The trial court also imposed the upper term of 10 years for his use of a firearm during this offense. The resentencing court did the same.
The trial court failed to impose sentence for this count. Although the prosecutor asserted that it was obvious that punishment for this count had to be stayed and both the minutes for the sentencing hearing and the abstract of judgment show that it was, the trial court failed to include it in its oral pronouncement of sentence.
First, he cites cases which he asserts hold, “When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.” However, defendant was not successful in his appeal—this court rejected all his assignments of trial error, did not address any of his assignments of sentencing error, agreed with the People’s contention that the trial court improperly reduced his conviction for aggravated kidnapping to simple kidnapping and remanded the entire sentence to allow the resentencing court to restructure it in any manner it deemed appropriate in light of the resurrection of the conviction for aggravated kidnapping. Taking defendant’s argument to its logical extension, we should reverse the resentencing court’s staying of the four-year sentence for assault with intent to commit rape and the two-year sentence for incest because these had not been stayed by the trial court. In fact, defendant ended up with a lesser total determinate sentence upon resentencing than he had when the trial court sentenced him—30 years versus 32.
Defendant cites People v. Henderson (1963) 60 Cal. 2d 482 (Henderson), in which the death penalty was imposed upon retrial after reversal of the defendant’s conviction, for which a life term had been imposed. It did not involve one portion of a total sentence being increased upon resentencing. He also cites People v. Hanson (2000) 23 Cal.4th 355, which involved a restitution fine.
Thus, as the People point out, had the resentencing court corrected only the sentence for aggravated kidnapping, as defendant suggests it should have, and left the other sentences as the trial court had imposed them, defendant would have ended up with a sentence of life plus 30 years, 4 months versus the life plus 30 years the resentencing court gave him.
Moreover, defendant recognizes that the rule against imposition of a harsher sentence on resentencing does not apply where the original sentence is unauthorized. In People v. Hill (1986) 185 Cal.App.3d 831 (Hill), which defendant cites, the trial court erroneously imposed a full consecutive sentence under section 667.6, subdivision (d) for an offense not covered by that subdivision. (Hill, supra, at p. 833.) Upon recall, the trial court corrected its error, and then ran consecutive the terms for two other offenses, which had originally been run concurrently. (Ibid.) In response to defendant’s contention that the court should have only corrected the erroneously imposed full consecutive sentence and left the two formerly concurrent sentences alone, the court of appeal observed, “When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited merely to striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme. [Citation.] . . . The trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal. . . . [¶] . . . [Defendant] is not entitled to . . . keep favorable aspects of the first sentence and to eliminate unfavorable aspects.” (Id. at pp. 834-835.)
More recently, People v. Torres (2008) 163 Cal.App.4th 1420, 1432 (Torres), said of, inter alia, Hill, “[D]efendant [properly] received a greater sentence [upon remand] . . . only when the court’s sentence demonstrated legally unauthorized leniency that resulted in an aggregate sentence that fell below that authorized by law.”
In our view, what occurred here is most similar to the facts in People v. Serrato (1973) 9 Cal.3d 753, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, footnote 1. Therein, the jury convicted the defendants of possessing a fire bomb, but the trial court, in lieu of granting their motion for a new trial, “reduced” their convictions to those of disturbing the peace and granted them probation. (Id. at pp. 756-757.) On appeal, the defendants successfully contended that their convictions of disturbing the peace were improper because it was not a lesser included offense of possessing a fire bomb and they otherwise lacked notice that they could be held liable for it. (Id. at p. 759.) They were unsuccessful, however, in arguing that upon remand to the trial court, their convictions for possessing a fire bomb would have to be dismissed or acquittals of that offense entered for them. (Id. at p. 760.) Finally, the Supreme Court rejected their contention that when they were sentenced for possessing a fire bomb upon remand, they could not receive a harsher sentence than they had originally, i.e., probation. In distinguishing People v. Henderson (1963) 60 Cal.2d 482 and other cases, the Supreme Court noted that in them, “the sentence imposed after the first trial was a lawful one, within the limits of the discretion conferred by statute for the offense of which the defendant had been convicted. The judgments pronounced at the first trials were reversed because of errors having nothing to do with the sentences. [¶] The 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. . . . [¶] . . . [¶] In the case at bench, the order made by the trial court in ruling on the motion for a new trial, and all proceedings thereafter, were in excess of the court’s jurisdiction, and must be set aside.” (Id. at pp. 764-765.)
Defendant relies on Henderson and also on People v. Ali (1967) 66 Cal.2d 277 (Ali), which will be addressed later in this opinion.
Here, the trial court’s reduction of defendant’s conviction of aggravated kidnapping to simple kidnapping was improper and resulted in an unauthorized sentence of 32 years being imposed, when defendant’s conviction for aggravated kidnapping mandated a sentence of life, in addition to the sentences required for the other offenses. Thus, the original sentence resulted in “legally unauthorized leniency” which brought it within Serrato’s exception to the double jeopardy prohibition on imposing a longer sentence on remand following appeal. As defendant, himself, recognizes, under Hill, when an illegal sentence is imposed, a trial court has authority to consider all of its sentencing choices on remand and is not limited to merely correcting the improper portion(s). (Accord, People v. Savala (1983) 147 Cal.App.3d 63, 65-66, disapproved on other grounds in People v. Foley (1988) 170 Cal.App.3d 1039, 1044.)
Defendant cites Division One’s opinion in People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa), as requiring a different outcome. In Mustafaa, the trial court imposed consecutive terms for two gun use enhancements while running the terms for the crimes to which those enhancements were attached concurrent with the principal term. (Id. at p. 1309.) On appeal, the defendant successfully argued that this violated section 12022.5, subdivision (a) and the court held that the matter must be remanded for resentencing. (Mustafaa, supra, at p. 1311.) However, it concluded that the trial court had imposed “a legal aggregate sentence, only fashioning it in an unauthorized manner” and double jeopardy required that defendant receive no greater aggregate sentence upon remand. Here, in contrast, the original sentence was not a legally aggregate one.
Torres, supra, 163 Cal.App.4th 1420 relied on Mustafaa. In Torres, the trial court sentenced defendant to the wrong number of years in prison as the upper term for making terrorist threats, while striking its attendant gang enhancement and one attached to another offense for which sentence was not imposed. (Torres, supra, at pp. 1421-1422.) Upon recall after its error had been pointed out to it by the Department of Corrections, the trial court refused to strike either enhancement and sentenced defendant to life. (Id. at p. 1422.) The Torres court rejected the trial court’s reliance on the unauthorized sentence exception to the double jeopardy prohibition on imposing a greater sentence after appeal. (Id. at p. 1432.) The appellate court reasoned, like Mustafaa, that the trial court could have, when it originally imposed sentence, arrived at the sentence it did in a proper manner (i.e., by not striking the gang enhancement, imposing the authorized 5-year term for it and imposing the correct middle term for making terrorist threats). (Torres, supra, at p. 1432.) Therefore, the sentence originally imposed did not fall below the mandatory minimum sentence and was not a legally unauthorized lenient sentence. (Ibid.) In fact, the trial court’s original sentence for terrorist threats was not lenient but more severe than was allowed. (Ibid.) Here, in contrast, the original sentence imposed was more lenient than the convictions found by the jury, and affirmed by this court, required.
Ali, supra, 66 Cal. 2d 277, also cited by defendant, is distinguishable. There, defendant was given concurrent sentences for convictions of three offenses. (Id. at p. 281.) For reasons unexplained in the opinion, the judgment was vacated on appeal, defendant was retried and convicted and sentenced again. (Ibid.) This time, consecutive terms were imposed. (Ibid.) The California Supreme Court held that defendant could not be sentenced to terms greater than those originally imposed. (Ibid.) Nothing in Ali indicates that the original sentence was not a lawful one. Therefore, the exception to the double jeopardy prohibition on increasing sentences following an appeal did not apply there.
DISPOSITION
The sentencing court is directed to amend the indeterminate abstract of judgment to show that defendant was convicted of kidnapping for rape or oral copulation, not robbery, as the abstract currently states. The court is also directed to amend this abstract and the minutes of the resentencing hearing to show that the sentence for the aggravated kidnapping is life with the possibility of parole, not seven years to life, as they currently state. Finally, the court is directed to amend the minutes of the resentencing hearing to change the reference to a “total [i]ndeterminate sentence of 37 years to life” to a “total indeterminate sentence of life with the possibility of parole and a total determinate sentence of 30 years.” In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., McKINSTER, J.