PEOPLE v. SASSER

Appellant’s Petition for Review

Cal.March 14, 2014

S2171 99 a SUPREME GUURT MAR 1 4 2014 Frank A. McGuire Clerk IN THE SUPREME COURTOF THE STATE OF CALIFORNIA?eputy THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent. Vv. DARREND. SASSER, Defendant and Appellant. No. First District Court ofAppeal No. A136655 Alameda County Superior Court No. 156534 PETITION FOR REVIEW Petition for Review of the Decision of the First District Court of Appeal Division Five, Affirming Petitioner’s Conviction Counsel for Appellant: Dirck Newbury Attorney at Law (State Bar No. 87959) P.O. Box 5575 Berkeley, CA 94705 (510) 644-1371 By appointment ofthe Court of Appeal underthe First District Appellate Project’s independent case system TOPICAL INDEX PETITION FOR REVIEW QUESTIONS PRESENTED FOR REVIEW (1) This court in People v. Tassel (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, held that prior serious felony conviction wasa status-type enhancementand only applied once to an aggregate determinate term. Where a criminal defendant has suffered a priorserious felony conviction (Pen. Code, §667, subd. (a)(1)), does the Three Strike Law (Pen. Code, §§667, subd. (e), 1170.12, subd. (c)(1)) require imposition of the 5-year term for the prior serious felony enhancement on each consecutively imposed determinate term? (2) Maya trial court impose a greater term of imprisonment after appellate remand of an unauthorized sentence wherethetrial court’s original sentence was within the allowable range provided by statutes, but in error because of the method ofcalculation? NECESSITY FOR REVIEW STATEMENT OF THE CASE STATEMENT OF FACTS MEMORANDUM IN SUPPORT OF REVIEW I. THIS COURT SHOULD NOT ABANDON THE DISTINCTION BETWEEN OFFENSE-RELATED AND OFFENDER-RELATED ENHANCEMENTS IN CALCULATING DETERMINATE TERMS Il. THE 495-YEAR TO LIFE SENTENCE IMPOSED AFTER REMAND WAS NOT MANDATORY, THE COURT HAD DISCRETION TO IMPOSELESS, AND ITS IMPOSITION VIOLATED CONSTITUTIONAL PROVISIONS AGAINST IMPOSING A GREATER SENTENCE ON REMAND CONCLUSION 22 29 Appendix: Opinion of the Court of Appeal First District, Division Five Filed February 11, 2014 Appendix A -li- TABLE OF AUTHORITIES Cases: People v. Brown (1987) 193 Cal.App.3d 957 People v. Collins (1978) 21 Cal.3d 208 People v. Ewoldt (1994) 7 Cal.4th 380 People v. Hanson (2000) 23 Cal.4th 355 People v. Henderson (1963) 60 Cal.2d 482 People v. Jones (2001) 25 Cal.4th 98 People v. Misa (2006) 140 Cal.App.4th 805 People v. Murphy (2001) 25 Cal.4th 136 People v. Serrato (1973) 9 Cal.3d 753 People v. Tassel (1984) 36 Cal.3d 77 People v. Williams (2004) 34 Cal.4th 397 Rose v. Lundy (1982) 455 U.S. 504 Statutes: Penal Code § 667(a)(1) § 667(e) § 667.6 § 667.61 § 667.71 § 669 § 1170.1 § 1170.1(h) § 1170.12(c)(1) § 1170.12(c)(2) -iii- 27-28 5, 22 2, 3, 12 5, 26 22, 26 10 13, 19-20 5 26 2, 3-5, 12-15, 19 3-5, 10, 19 6 1,2 2 1, 6, 13, 28 1,5 1, 5-8 5-8 28 14 2, 16 16-17 . Federal Statutes 28 U.S.C. §2254(b) Other Authorities: Cal. Const. Art. I, §15 United States Const., 5 Amendment California Rules of Court rule 4.426 rule 8.500 rule 8.516 rule 8.1105(b) rule 8.1110 -iV- 5, 22, 26 — E S e S & 6 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and Respondent. Vv. First District Court of Appeal No. A136655 DARREND. SASSER, Alameda County Superior Court Defendant and Appellant. No. 156534 PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner, Darren D. Sasser, hereby respectfully requests review pursuant to California Rules of Court, rules 8.500 and 8.516, following the decision of the First District Court ofAppeal, Division Five, filed February 11, 2014,' affirming his convictions for kidnaping and sexual offenses and sentence to 495 yearsto life under the Habitual Offender Act, the One- Strike Law, and the Three Strikes law. (§§667(a)(1), 667.6, 667.61, 667.71, 1170.12.). A petition for rehearing wasnotfiled. The decision wascertified for partial publication. (Cal. Rules of Court, rule 8.1105(b) and 8.1110.) 'Decision ofthe First District Court of Appeal, Division Five, filed February 11, 2014 is attached hereto as Appendix A; said decision referred to as “Slip opn.,” herein. *Further statutory references are to the Penal Code unless otherwise stated. -]- PETITION FOR REVIEW QUESTIONS PRESENTED FOR REVIEW (1) This court in People v. Tassel (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, held that prior serious felony conviction wasa status-type enhancement and only applied once to an aggregate determinate term. Where a criminal defendant has suffered a prior serious felony conviction (Pen. Code, §667, subd. (a)(1)), does the Three Strike Law (Pen. Code, §§667, subd. (e), 1170.12, subd.(c)(1)) require imposition of the 5-year term for the prior serious felony enhancement on each consecutively imposed determinate term? (2) Maya trial court imposea greater term of imprisonmentafter appellate remand of an unauthorized sentence wherethetrial court’s original sentence was within the allowable range provided by statutes, but in error because of the method of calculation? PETITION FOR REVIEW NECESSITY FOR REVIEW The instant Court ofAppeal Opinion presents for this court’s review an issue reserved by this court in People v. Williams (2004) 34 Cal.4th 397, 402 (“Williams’’), whether the Three Strikes law requires a 5-year prior serious felony enhancement be imposed on each consecutively imposed determinate term, as opposed to being imposed once per aggregate determinate term. Thirty years ago this court in People v. Tassel (1984) 36 Cal.3d 77, 90 (‘Tassel’), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, held that prior serious felony conviction was a status-type enhancementand only applied once to a determinate term imposed pursuant to Section 1170.1. Construing the Determinate Sentencing Law, Tassel observed that there were two kinds of enhancements: those that related to personal history of the defendant and those that related to the acts constituting the offense, “(1) those which go to the nature of the offender; and (2) those which goto the nature of the offense.” (Tassel, at p. 90.) More recently Williams, supra, distinguished Tassel’s general rule that status-type enhancements are added only once to defendant’s aggregate determinate sentence, noting that in Three-Strikes cases the statute mandates full and consecutive application of the 5-year enhancementto life terms. Williams limited Tassel to determinate sentences: “Section 1170.1, however, applies only to determinate sentences. It does not apply to multiple indeterminate sentences imposed underthe Three Strikes law.” (Williams, supra, 34 Cal.4th at p. 402 (italics in original).) Evenstill, this court in Williams chose not to extendits ruling to the determinate terms of secondstrike cases sentenced under the Three Strikes law because that issue was not before it. Williams phrasedits rule as applicable to third-strike -3- PETITION FOR REVIEW sentences: “Accordingly, we concludethat, under the Three Strikes law, section 667(a) enhancements are to be applied individually to each count of a third strike sentence.” (/d., at p. .) Williams did not overrule Tassel. Rather Williams limited Tassel to determinate sentences. After the decision in Williams, the Fourth District Court ofAppeal, Division One, ruled that a second-strike sentence under the Three Strikes law required a 5-year term for a prior serious felony conviction be imposed on both an indeterminate life term imposed for torture and an accompanying determinate term imposed for an assault. (People v. Misa (2006) 140 Cal.App.4th 805.) The Fourth District acknowledged that its analysis was not compelled by the ruling in Williams, but stated that Williams’ reasoning allowed for such a result, “Because he wasnot subjected to multiple indeterminate sentences pursuant to the Three Strikes law as wasthe defendant in Williams, the California Supreme Court's analysis in that case is not directly dispositive of the issue before us. However, we conclude that a similar analysis is applicable here.” (/d., at pp. 811-812.) Thus, Misa _ further limited Tassel, a step that this court in Williams wasnotyet willing to do. The instant decision of the First District Court of Appeal takes the next step, imposing a 5-year prior serious felony enhancement on multiple consecutively imposed determinate terms,“we hold that a prior serious felony enhancement must be applied to each term imposed under the Three Strikes law, whether for a secondstrike offense or a third strike offense.” (Slip opn., p. 1.) In so doing the Court ofAppeal appears to have interpreted the Three Strikes Law to mandate imposition of 5-year serious felony conviction enhancements on each consecutively imposed determinate term. The decision of the Court ofAppeal thus eliminates the PETITION FOR REVIEW distinction between the crime-related and defendant-related types of enhancements (see Tassel, supra), a distinction which pre-dated the Three Strikes Law, and reinterprets the Determinate Sentencing Law in a manner not intended byeitherlegislative or initiative process. Review is necessary to settle important questions of law and secure uniformity of opinion. (Cal. Rules of Court, rule 8.516; and further discussed in the accompanying Memorandum in Support ofReview, Section I, infra.) Also presented for this court’s review is whether a sentencing court upon remand for imposing a sentence that was within the range of punishments provided by statute but was calculated in a mannernot authorized by statute, such as imposing one-third terms on consecutivelife sentences, may imposea greater term after appeal. A punishment imposing a greater sentence upon remand implicates double jeopardy, due process, and hasa chilling effect on a criminal defendant’s right to appeal. (Cal. Const., art. I, §15, United States Const., 5Amendment[due process]; People v. Hanson (2000) 23 Cal.4th 355; People v. Collins (1978) 21 Cal.3d 208.) The 495-year to life term imposed after remand wasthe maximum authorized by the Habitual Offender Act (§667.71), but was not the minimum authorized sentence.’ Under the Habitual Offender Act the court has discretion to impose concurrent or consecutive sentences, but imposition of such terms is not mandatory. (§667.71(b), §669; People v. Murphy (2001) 25 Cal.4th 136, 151.) The increase in the minimum term prior to parole eligibility from 458 to 495 years was not required in order to *Contrast the alternative sentencing scheme provided by the One- Strike Law, which as of 2006 requires mandatory consecutive sentencing, former subdivision (g) of §667.61, now subdivision (h). The 229-year to life sentence under the One-Strike was stayed in the instant case becauseit provided for a lesser term of imprisonment. PETITION FOR REVIEW conform the sentence to the minimum required by the statutory sentencing schemes. This issue is available for this court’s review and, though not included in the published portion of the court of appeal opinion, must in any event be preserved for further federal review. (28 U.S.C. §2254(b); Rosev. Lundy (1982) 455 U.S. 504, further discussed in SectionII, infra.) STATEMENT OF THE CASE Petitioner was convicted by jury of a series of forcible sexual offenses against Jane Doe 1 on November9, 2005 anda series of offenses against Jane Doe 2 on November 17, 2005 (§§261(a)(2), 286(c)(2), 288a(c)(2)), along with a prior conviction that qualified as a serious felony (§667(a)(1)), a “strike” under this state’s Three Strikes law (§1170.12(c)(1), §667(e)(1)), and qualified the forcible sexual offenses for life terms under the Habitual Offender Act. (§667.71) (CT 2-3.) Petitioner was originally sentenced on January 15, 2010 to eleven consecutive life terms under the Habitual Offender Act (§667.71) with a minimum of 458 years, with an identical term stayed under the One-Strike Law (§667.61).4 (CT 15-16.) Appeal from these proceedings resulted in an unpublished decision by the First District Court of Appeal, Division 5, No. A127431 reversing ‘Consecutive twenty-five to life terms on Counts 2, 5, 7, 8, 10, 11, and 15 (§667.61, §667.71, §667.6(d)) were doubled to terms offifty to life as a second strike under the Three Strikes Law (§667(e)), and to each was added a 5-year enhancementforthe serious felony prior (§667(a)(1)). Consecutive eight year, four month to life terms on Counts 6, 13, 16, and 17: (§667.6(c)) were doubled to sixteen years, eight monthsto life (§667(e)), and to each was added a oneyear, eight month enhancementfor the same serious felony prior (§667(a)(1)). (CT14-16.) -6- PETITION FOR REVIEW two counts (Counts 11 and 17) for instructional error,” reversing the sentence for failure to apply the then-applicable “spatial proximity”test for consecutive sentencing under the One-Strike Law (Jones-type®error) and for imposition of an unauthorized sentence in the form of minimum-parole- eligibility terms reduced to one-third of mandatory period on several, but not all, of the consecutively imposed counts. On remittitur in superior court the two counts reversed for instructional error (Counts 11 and 17) were dismissed and petitioner was resentenced to 495 yearsto life under the Habitual Offender Act; a 229- year-to-life sentence under the One-Strike Law wasstayed. (CT 28-31.) Asto the Habitual Offender Act, for each of the sexual offenses the court imposedidentical consecutive life terms calculated as follows: a 25-to-life _ term under the Habitual Offender Act (§667.71) doubled to 50 to life under the Three Strikes Law (§667(e)(1)) plus five years for the serious-felony prior (§667(a)(1)) for a total of 55 years to life for each sexual offense. The court imposed this term on Counts 2, 5, 6, 7, 8, 10, 13, 15, and 16, fora total of 495 to life. (CT 28-29, 32-33 [Abstract].) As to the One-Strike Law,the court imposed 55 years to life on both Counts 2 and 10, then added *Reversal of convictions on these counts was required dueto the failure to instruct sua sponte on lesser included offenses. Lesser included instruction was required on attempted sodomy because there was “substantial evidencethat the offenses ... were attempted, not completed sodomies.” (Slip opn., p. 25.) *Subdivision (g) of section 667.61 wasrevised effective September20, 2006 and replaced with subdivision (i), which mandated consecutive sentencing in crimes involving separate victims, or the same victim on separate occasions as determined by Section 667.6(d), superseding this court’s decision in People v. Jones (2001) 25 Cal.4th 98, 107. The amendmentoccurred after the offenses were committed but before the trial and sentencing in the instant case. Thetrial court applied the newer subdivision and thus failed to incorporate the Jones “spatial proximity”test at the initial sentencing, leadingto error calculating mandatory consecutive life sentences under the One-Strike Law. -7- PETITION FOR REVIEW identical consecutive 17-year terms’ for each of the seven remaining sexual offenses, for a total of 229 years to life. (CT 30-31.) The seventeen year term was calculated as the midterm ofsix years for each of the forcible sexual offenses (§§288a(c)(2), 286(c)(2), 261(a)(2)) doubled pursuant to Three Strikes plus five years for the serious felony prior (§667(a)). The 229 year to life term was stayed. (CT 31; see Section 667.61(g).) Petitioner timely filed notice of appeal from the resentencing (CT 37-38), resulting in the opinion subject ofthe instant petition for review. STATEMENT OF FACTS This statement of facts is abbreviated because the instant petition presents questions concerning sentence and resentencing. On the morning ofNovember9, 2005, a man that Jane Doe 1 later identified as petitioner posed as a Comcast repairman and forced his way into her apartment. (CT 2-3.) He took her to the bedroom at knife-point. (CT 3.) Once in the bedroom an act of forced oral copulation ensued. (CT 3.) After the oral copulation, Doe 1 was movedto the living room where anotherseries of forcible rapes and one sodomyoccurred. (CT 3.) DNA evidence recovered from Doe | produced the sameprofile as petitioner’s, which an expert opined occurred in one in 113 billion profiles. (CT 3-4.) During the evening ofNovember 17, 2005 Jane Doe 2 went to the area of 20" Avenue and East 23™ Street to buy rock cocaine, “To purchase ’The trial court in passing sentence occasionally called the 17-year term both “an aggregate term of 17 yearsto life” (RT 12:5, 12:9 [Count 6 & 7] and a determinate-type sentence, an “aggregate term of Count 5 of 17 years.” (RT 11:25-28 [Count 5]; see also RT 12:13 [Count 8], RT 13:7-20 [Counts 13 & 15].) Yet, it does not appear that the sentencing court was attempting on remandto impose 17-yearto life terms. (CT 28-31; and see Slip Opn., p. 6 [treating the 17- year terms as determinate].) PETITION FOR REVIEW crack.” (CT 3-4.) Petitioner approached, got in the van and supplied crack cocaine in exchange for money. (CT 3-4.) After the exchange petitioner asked Doe 2 for a ride to 2600 Wallace Street. (CT 4.) Uponarrival at Wallace Street, things changed. Petitioner locked the doors and demanded oral copulation. (CT 4.) While petitioner was preparing for these sexual acts Doe 2 testified that she saw a gun hit the floor, from “out his back.” (CT 4.) Fearing for her safety, Doe 2 performed oral copulation on petitioner as he sat in the front passenger seat. (CT 4.) Doe 2 was pushed into the back row ofseats and petitioner forced Doe 2 into acts of rape, attempted rape, and oral copulation. (CT 4.) Petitioner took Doe’s van and drove to a secondlocation with Doe 2 still in the back seat. (CT 4.) While at the secondlocation, “a secluded construction area,” forced acts of oral copulation, rape, and attempted sodomyrecurred. (CT 4.) DNA recovered from Doe 2 produced the sameprofile as petitioner’s, which occurred one in 113 billion profiles. (CT 4-5.) Petitioner’s FirstAppeal - No. Al27431 Petitioner’s first appeal resulted in remand. Two of the sodomy convictions were reversed dueto instructional error and resentencing was required due the imposition of life terms with minimum-mandatory-parole- eligibility-terms reduced to one-third the statutory term for consecutivelife terms on Counts 6, 13, 16 and 17 and error in imposing a sentencing law enacted after the date of the offense. (Cf. subdivision (i), section §667.61, discussed fn. 6, supra.) As to the “Jones”error the Court ofAppeal stated: Weagree with the parties that the case must be remanded so that the court can make a determination under Jones{] whether any of the offenses were committed against the same victim on a single occasion. PETITION FOR REVIEW | (Opinion, pp. 29-30, citing People v. Jones (2001) 25 Cal.4th 98, 107 (Jones).) The unpublished opinion also noted that the reduction to one-third the minimum mandatory parole-eligibility terms on the life sentences and the commensurate one-third reductions of the five-year serious felony enhancements attached to those reduced counts produced unauthorized terms. The trial court had imposedlife sentences of 18 years, 4 months to life on 6, 13, 16 and 17. (CT 15.) Thetrial court had calculated same- occasion terms as 8 years, 4 monthsto life (one-third the term of 25 years to life), doubled to 16 years, 8 months by the Three Strikes law, plus one year eight months (one-third the term of 5-years) for the serious felony prior. (CT 15.) The Court ofAppeal agreed with the Attorney Generalthat “the matter must be remandedto correct the unauthorized sentence terms imposed on counts 6, 13, 16 and 17.” (CT 17-18.) Further, and ofparticular relevance to the instant petition for review, whenthe trial court reduced the minimum mandatory parole eligibility term _ for the same-occasion offenses to one-third it also reduced the attendant5- year recidivist clauses to one-third. The Court of Appeal’s first Opinion noted that the imposition of one-third terms for prior serious felony offenses was unauthorized by statute and noted this court’s decision in People v. Williams (2004) 34 Cal.4th 397 which ruledthat the 5-year serious felony priors must be imposed on each consecutive intedeterminate sentence imposed underthe Three Strikes law. (/bid.) As to the 5-yearpriors, “the court lacked discretion to imposeless than the full five-year enhancement.” (Slip opn., p. 33.) The matter was remanded for resentencing. (Jbid.) -10- PETITION FOR REVIEW Proceedings on Remand Remittitur issued December 7, 2011. On July 27, 2012 the matter cameon for resentencing. (CT 27-31, 35.) On motion ofthe District Attorney, Counts 11 and 17 were dismissed.® (CT 28-31.) The court then proceeded to sentencing under both the Habitual Offender Act (§667.71) and the One-Strike law (§667.61) as of 2005 (People v. Jones, supra, 25 Cal.4th 98). (RT 6-14.) As to the Habitual Offender Act the court imposed identical consecutive life terms for each of the sexual offenses calculated as a 25-to-life term under the Habitual Offender Act (§667.71) doubled to 50 to life under the Three Strikes Law (§667(e)(1)) plusfive years for the serious-felony prior (§667(a)(1)) for a total of 55 years to life for each sexual offense. The court imposedthis term on Counts2, 5, 6, 7, 8, 10, 13, 15, and 16, for a total of 495 to life. (CT 28-29, 32-33 [Abstract].) As to the One-Strike Law,the court imposed 55 years to life on both Counts 2 and 10, then added identical consecutive 17-year terms for each of the seven remaining sexual offenses, for a total of 229 years to life. (CT 30-31.) The seventeen year term wascalculated as the midterm of six years for each of the forcible sexual offenses (§§288a(c)(2), 286(c)(2), 261(a)(2)) doubled pursuant to Three Strikes plus five years for the serious felony prior (§667(a)). The 229 year to life term was stayed. (CT 31; see Section 667.61(g).) Thus, after remandthe abstract ofjudgment recorded a 495 yearto life sentence. (CT 32-34.) ‘The dismissal of one ofthe unauthorized terms, Count 17, left three unauthorized terms, Counts 6, 13, and 16, to be corrected on remand. -11- PETITION FOR REVIEW MEMORANDUMIN SUPPORT OF REVIEW I. THIS COURT SHOULD NOT ABANDON THE DISTINCTION BETWEEN OFFENSE-RELATED AND OFFENDER-RELATED ENHANCEMENTS IN CALCULATING DETERMINATE TERMS Several of the determinate terms in the instant case are enhanced by five years for the sameprior conviction. (§667(a).) Although this issue only applies to the stayed portion of petitioner’s sentence, the 2'59-to-life One-Strike term, it presents an issue reserved bythis court in People v. Williams (2004) 34 Cal.4th 397, 402 (“Williams”). People v. Tassel (1984) 36 Cal.3d 77, 90 (“Tassel”), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, held that prior serious felony conviction was a status-type enhancementand only applied once to a determinate term imposed pursuant to Section 1170.1. Construing the Determinate Sentencing Law, Tassel observed that there were two kinds of enhancements: those that related to personal history of the defendant and those that related to the acts constituting the offense. The court described the “two kinds of enhancements:(1) those which goto the nature of the offender; and (2) those which goto the nature of the offense. Enhancements for prior convictions — authorized by sections 667.5, 667.6 and 12022.1 — are of the first sort. The second kind of enhancements — those which arise from the circumstances of the crime — are typified by sections 12022.5 and 12022 wasa firearm used or was great bodily injury inflicted? Enhancements ofthe second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since -12- PETITION FOR REVIEW they are related to the offender, are added only onceasa step in arriving at the aggregate sentence.” (Tassel, supra, at p. 90.) Proceedings in the Instant Case After remand, addressing the One-Strike alternative sentencing scheme,the trial court converted several indeterminate terms to determinate terms. Thetrial court added 5-year recidivist enhancementsto each ofthe determinate terms in addition to the 5-year determinate term imposed on the indeterminate term. On appeal of the resentencing petitioner noted that the imposition of the 5-year recidivist enhancements on the stayed portion of petitioner’s sentence raised an issue reserved bythis court in Peoplev. Williams (2004) 34 Cal.4th 397, 402 (“Williams”). (See People v. Tassel (1984) 36 Cal.3d 77 [distinguishing status- and offense-related enhancements]; People v. Misa (2006) 140 Cal.App.4th 805 [extending reasoning of Williams to impose 5-year enhancementsto secondstrike sentence].) Atissue in the instant case are 5-year serious felony prior conviction enhancements appended to same-victim-same-occasion forcible sexual offenses qualifying for punishment under subdivision ( c) of section 667.6. Subdivision ( c) of section 667.6 authorizes a court to impose full and consecutive terms for qualifying sexual offenses: (c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision(e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted ofat least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision,it shall be served consecutively to any -13- PETITION FOR REVIEW other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commenceat the time the person otherwise would have been released from prison. (§667.6( c).) The issue arises whether determinate terms are transformed into an alternative sentencing schemethat allows, or requires, imposition of 5-year enhancements on each term imposed. Some vagueness may ensue dueto reference to sentencing under Section 1170.1. Determinate terms imposed underboth Section 1170 and 667.6 are discussed by subdivision (h) of section1170.1. Subdivision (h) is meant to ensure that section 1170.1 is not mistaken asa limit on the number of enhancements otherwise lawfully imposed. Subdivision (h) discusses imposition of enhancements on terms imposed under 667.6: (h) For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposedshall not be limited, regardless ofwhether the enhancements are pursuantto this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term. (§1170.1(h).) Subdivision (h) clarifies that Section 1170.1 does not limit the number of enhancements that may otherwise be lawfully imposed. On the other hand, subdivision (h) does not require that same-victim-different-occasion sexual offenses (§667.6( c)) be consecutively imposed. This court faced the same issue in Tasse/, construing then subdivision (I) of section 667.6, and ruled that subdivision wasnot intended to direct imposition of recidivist -14- PETITION FOR REVIEW enhancements: The obvious purpose of subdivision(i) is to nullify certain limitations set forth in other parts of section 1170.1 regarding the numberand length of enhancements that may be added to particular counts. It is not intended to affect the method by which enhancements for prior convictions are imposed. (Tassel, supra, at p. 90.) Subdivision (h) of Section 1170.1 does not settle the recidivist enhancement issue.” *The Court ofAppeal Opinion’s concluding footnote referencing subdivision (h) of Section 1170.1 as a potential additional grounds for imposing multiple recidivist enhancements(slip opn., p. 12, fn. 5) also conflicts with Tassel. The §1170(h) argument (formerly subdivision (i), which has again been changed back to subdivision (h)) was presented and squarely rejected by Tassel: Thetrial court justified its double use of the sameprior convictions for enhancementby relying on section 1170.1, subdivision (i) (formerly subd. (h)).[] Subdivision (i), which - applies only to forcible sex offenses, provides: "For any violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or sodomyor oral copulation by force, violence, duress, menaceor threat of great bodily harm as provided in Section 286 or 288a, the number of enhancements which may be imposedshall not be limited, regardless of whether such enhancementsare pursuant to this or some other section of law. Each of such enhancementsshall be a full and separately served enhancementand shall not be merged with any term or with any other enhancement."(Italics added.) Petitioner contendsthetrial court read subdivision (i) of section 1170.1 too broadly in finding that it ordained using the sameprior convictions twice to enhance one aggregate sentence. Weagree. The obvious purpose of subdivision(i) is to nullify certain limitations set forth in other parts of section 1170.1 regarding the numberand length of enhancements that may be added to particular counts. It is not intended to affect the method by which enhancementsfor prior convictions are imposed. (Tassel, supra, p. 90 [footnote omitted].) -15- PETITION FOR REVIEW There was goodreasonthis court’s opinion in Williams did not extendits ruling to second-strike sentencings. Determinate terms have historically been calculated under the guidelines endorsed by Tassel: recidivist enhancements are imposed once per a defendant’s status at a sentencing. Offense-related enhancements are imposed onceper each of a defendant’s criminal offenses. The Three-Strikes Law describes the punishmentsto be imposed for so-called second- andthird-strike - convictions. Notably, persons convicted of second- andthird- strikes are subjected to distinct, and different, sentencing schemes. A person suffering a conviction with a single, qualifying serious or violent felony offense has the term lawfully imposed by other sentencing provisions doubled. A person suffering a conviction with two qualifying serious or violent felony offenses is subjected to an alternative sentencing scheme:life with a minimum mandatory term otherwise calculated under the Three-Strikes law itself. Subdivision ( c) of Section 1170.12 describes the punishmentto be imposed whereonestrike has been pleaded and proved: (1) If a defendanthas oneprior serious and/or violent felony conviction as defined in subdivision (b) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishmentfor the current felony conviction. (§1170.12(¢ c)(1).) Subdivision (c)(1) doubles a term imposed by anotherstatute. It doubles a determinate term imposed by another sentencing scheme, “the determinate term ... shall be twice the term otherwise provided... .” (§1170.12(c)(1).) In contrast, subdivision ( c)(2) provides an alternative sentencing scheme where a defendanthas suffered at least twopriorstrikes: (2) (A) Except as provided in subparagraph (C), ifa -16- PETITION FOR REVIEW defendanthas two or moreprior serious and/or violent felony convictions, as defined in subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term oflife imprisonment with a minimum term ofthe indeterminate sentence calculated as the greatest of... . (§1170.12( c)(2).) Under subdivision ( c)(2), a life term is imposed instead of a determinate term. A third strike does not include the calculation of a determinate term and thus does not unsettle precedent regarding attachmentofrecidivist enhancements to an aggregate term. Opinion ofthe Court ofAppeal The opinion of the Court ofAppeal holds that 5-year prior serious felony enhancements must be imposed for each term imposed pursuantto subdivision ( c) of section 667.6. If the term was imposed underthe Three Strikes law,either for a second strike offense or for a third strike offense, the enhancement must be applied. (Slip opn., p. 12.) Petitioner, based upon Tassel, had argued that only onerecidivist enhancement should be applied to the combined determinate term, “Sasser argues that only one recidivism enhancement may be imposedonthe entire determinate term portion of his sentence (along with an enhancementfor each of the indeterminate terms).” (Slip opn., p. 11.) The Court ofAppeal considered petitioner’s argument, but limited Tasse/ to determinate terms imposed under Section 1170.1: In People v. Tassell (1984) 36 Cal.3d 77 (Tassell), on which Sasserrelies, the court considered whether an enhancement -17- PETITION FOR REVIEW for a prior serious felony conviction (§ 667, subd. (a)) could be applied to each of several determinate terms imposed pursuantto section 1170.1. (Slip opn., p. 11.) The Court of Appeal then distinguished determinate terms imposed under the Three Strikes Law from determinate terms otherwise imposed under Section 1170.1, Unlike the defendant in Tassell, Sasser was not sentenced under section 1170.1, but under the Three Strikes law, which permits multiple enhancements. (See Williams, supra, 34 Cal.4th at p. 402; Misa, supra, 140 Cal.App.4th at p. 847.) Accordingly, the court did not err in imposing a recidivist enhancementas to each of Sasser’s seven second-strike determinate terms. (Slip opn., p. 11.) Yet, the language of the Court ofAppeal opinion then goes beyond terms imposed pursuant to subdivision ( c) of section 667.6 and appears to apply its reasoning to all terms imposed in second-strike sentencings under the Three Strikes law: In sum, deciding whethera recidivism enhancement should be applied to each countor only once to the aggregate sentence, the key distinction is not whether the term for the count is determinate or indeterminate, but whether it was imposed pursuant to section 1170.1 or pursuant to the Three Strikes law. If the term was imposed underthe Three Strikes law, either for a second strike offense or for a third strike offense, the enhancement must be applied. (Slip opn., p. 12.) The premise of the Court of Appeal’s rulingis that there are different types of determinate terms: a determinate term imposed under the Three Strikes Law “is fundamentally different than a determinate term imposed under section 1170.1.” (Slip opn., p. 11.) Whether or not the branching of the -18- PETITION FOR REVIEW sentencing statutes has created a new category of determinate terms, especially one which mandates imposition of consecutive 5-year recidivist termsfor a prior serious felony conviction, is a fundamental change in established sentencing law and merits review. Necessity for Review Williams, supra, distinguished Tassel’s general] rule that status-type enhancements are only added once to defendant’s sentence, noting that in Three-Strikes cases the statute mandates full and consecutive application of the 5-year enhancementto life terms. Williams limited Tassel to determinate sentences: “Section 1170.1, however, applies only to determinate sentences. It does not apply to multiple indeterminate sentences imposed under the Three Strikes law.” (Williams, supra, 34 Cal.4th at p. 402 (italics in original).) Evenstill, this court in Williams chose not to extendits ruling to the determinate terms of secondstrike cases sentenced underthe Three Strikes law because that issue was not before it. Williams phrasedits rule as applicable to third-strike sentences: “Accordingly, we conclude that, under the Three Strikes law, section 667(a) enhancementsare to be applied individually to each countof a third strike sentence.” (/d., at p. .) Williams did not overrule Tassel. Rather Williams limited Tassel to determinate sentences. Since Williams, the Fourth District Court of Appeal, Division One, issued an opinion holding that a second-strike sentence must include a 5- year term for a single prior serious felony conviction on each determinate term imposed under the Three Strikes law. (People v. Misa (2006) 140 Cal.App.4th 805 [a five-year term is mandatory under Three Strikes law, _ but is not required for separate determinate terms].) Six foot, three inch, -19- PETITION FOR REVIEW 300-pound Vince V. Misa assaulted and tortured someonethat he believed had stolen from him. Misa cracked his victim’s skull with a golf club, then kept the victim in garage such that the victim continued to suffer from the exposure ofhis brain tissue and intra-cranial hemorrhaging. (/d., at pp. 807-808.) Misa was convicted of the crimes of torture (§206) and aggravated assault (§245(a)(1)) with a strike prior. He was sentenced to an indeterminate term for torture plus a determinate term for the assault, and to each was addeda 5-year term because the prior wasa serious felony (§667(a)(a)). (Id., at p. 808.) On appeal Misa’s sentence wasaffirmed, the Fourth District reasoning that Williams’ analysis of the Three Strikes law should extend to a determinate secondstrike term as well as the indeterminate third strike term in that case. The Fourth District acknowledged that its analysis was not compelled by the ruling in Williams, but decided that Williams reasoning would allow for such a result, “Because he wasnot subjected to multiple indeterminate sentences pursuant to the Three Strikes law as was the defendant in Williams, the California Supreme Court's analysis in that case is not directly dispositive of the issue before us. However, we conclude that a similar analysis is applicable here.” (d., at pp. 811-812.) Thus, Misa appears to have further limited Tassel, a step that this court in Williams wasnot yet willing to do. The instant opinion takes recidivist enhancements one step further, ruling that the Three Strikes Law compels multiple 5-year enhancements where an offender suffers a secondstrike. The ruling conflicts with Tassel. David Tassel was sentenced to consecutive determinate terms under | subdivision ( c) of Section 667.6. “He was sentencedto the upper term of eight years for rape (count IT) and — pursuantto the special sentencing provisions of section 667.6, subdivision (c) for forcible sex offenses — to a fully consecutive upper term of eight years for oral copulation (countII). -20- PETITION FOR REVIEW Enhancements for prior convictions were added to the terms of both counts II and III — oneyearto each for a prior Florida statutory rape conviction (§ 667.5, subd. (b)) and five years to each for a prior California rape conviction (§ 667.6, subd. (a)).” (Ud., at p. 89.) This court reasoned that there were two types of enhancements, those that went-to the nature of the offender, and those which wentto the nature ofthe offense, and that “using the same prior convictions twice to enhance one aggregate sentence” was not required nor intended by sentencing law in calculating an aggregate term. (/d., 90.) The distinction was well-reasoned andits application should not be abandoned. -21- PETITION FOR REVIEW I. THE 495-YEAR TO LIFE SENTENCE IMPOSED AFTER REMAND WAS NOT MANDATORY, THE COURT HAD DISCRETION TO IMPOSELESS, AND ITS IMPOSITION VIOLATED CONSTITUTIONAL PROVISIONS AGAINST IMPOSING A GREATER SENTENCE ON REMAND On resentencing after remittitur the trial court imposed full and consecutive sentences despite discretion to impose a sentence within the lunits of the original 458 year to life term. (Counts 6, 13 and 16, discussed further herein.) In so doing the trial court erred. A trial court may not impose a greater sentence on remand after a successful appeal. (California Constitution,article I, section 15, People v. Henderson (1963) 60 Cal.2d 482, 495; People v. Collins (1978) 21 Cal.3d 208, 216 (Collins).) At the first sentencing hearing the trial court appeared to have exercisedits discretion to impose less than full-and-consecutive terms under the Habitual Offender Act (§667.71) for those offense which the trial court termed “same time frame offenses,” imposing terms of 1/3-the-midterm-to-life. In contrast, at the sentencing after remand the court abandonedthedistinction previously made between the same-occasion and different-occasion sexual offenses and imposedalllife terms full and consecutive under the Habitual Offender Act. Opinion ofthe Court ofAppeal The Court ofAppeal considered petitioner’s argument, but ruled that because one-third-the midterm sentences were unauthorized a larger sentence was permitted on remand: When a defendantsuccessfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy -22- PETITION FOR REVIEW generally precludes the imposition of more severe punishment on resentencing. (Cal. Const., art. I, § 15; People v. Hanson (2000) 23 Cal.4th 355, 363-366; People v. Henderson (1963) 60 Cal.2d 482, 495-497.) As Sasser acknowledges, however, no such limitation applies where the original sentence imposedbythe trial court was not authorized by law. [Citations.] In our prior opinion, we expressly ruled that the sentence as to counts 6, 13, 16, and 17 was unauthorized by law: based on this court’s decision in Williams, section 1170.1 did not authorize the imposition of one-third-the-midterm sentences for Sasser’s offenses, and section 667, subdivision (a) did not authorize the imposition of one-third of the enhancementterm for his serious felony prior. Accordingly, the court’s imposition of a sentence on remand that is more severe than the original sentence did not violate Sasser’s double jeopardyrights. (Slip opn., pp. 7-8.) The Court of Appeal was unmovedbypetitioner’s argumentthat it was the mannerofcalculation, and not the length of the term, that was unlawful. The Court ofAppealruled that the original sentence was unauthorized, thus allowing the court on remand to impose a sentencein excessofthe original: Sasserasserts that the court therefore could have lawfully imposed some concurrent or lesser sentence on counts 6, 13, and 16, such that the aggregate sentence would not exceed the 458-years-four- months-to-life sentence that was originally imposed. (For example, if the court had imposed sentence on counts 6, 13, and 16 to run concurrently, the total sentence would have been just 330 years to life.) Because the court did not do so, Sasser contends the court violated his right against double jeopardy. Sasser’s argument is meritless. Because the original sentence was unauthorized, the court on remand wasnot required to imposeless than full consecutive sentences on counts 6, 13, and 16. As explained ante, there was no double jeopardy requirementto do so. (Slip opn., p. 9.) -23- PETITION FOR REVIEW Thusthe issue is presented, whether remandofa sentence calculated in a mannernot authorized by statute allows the sentencing court to impose a sentence in excess ofthe original whether or not a sentence in excess of the original was requiredbystatute. Proceedings in the Instant Case At theinitial sentencing, the trial court distinguished the life terms imposed in Counts 6, 13, 16 and 17 from otherlife terms. The terms imposed were more than required by the Habitual Offender Act, but less than the maximum full and consecutive term authorized. Thetrial court found that Count 6 was committed in the “same time frame” as Count 5 [Jane Doe 1 counts], and therefore imposed a term of one-third the midterm of “18 years, 8 months,to life.” (RT 812.) As described by the Court of Appeal in its ruling on petitioner’s first appeal: On count6 (rape), the court exercised its discretion under Jessica’s law (§ 667.6, subd. (c)) “not [to] impose a full consecutive term,” finding that the offense was committed “within the same time-frame” and the same location.It therefore imposed a consecutive term of 18 years four months to life: eight years four monthsto life (one-third the midterm) under the HSOL,doubled under the TSL,plus one year eight months (one-third the midterm) for the serious felony prior. The court utilized the same calculation to impose an additional consecutive term of 18 years four monthstolife under the OSL. (CT 15.) The court made similar findings as to Counts 11 and Count 13 [Jane Doe2, prior to Embarcadero], and Counts 15, 16 and 17 [Jane Doe2,after drive to Embarcadero], reducing Count 13, 16 and 17 to one-third the midterm under the same formula as Count 6. (RT 816:11-817:8, 817-819.) -24- PETITION FOR REVIEW On count 13 (rape), the court exercised its discretion under Jessica’s law (§ 667.6, subd. (c)) to impose less than a full term after finding that the count 13 offense and the count 11 offense were a “single transaction.” As in count6,it imposed an additional consecutive term of 18 years four monthsto life under the HSOL and a consecutive term of 18 years four monthsto life under the OSL. On count 16 (rape), the court found the offense was committed within the same time-frame and location as the count 15 offense and, therefore, as in count 6, exercisedits discretion pursuant to Jessica’s law (§ 667.6, subd. (c)), to impose a consecutive term of 18 years four monthsto life under the HSOL and an additional consecutive term of 18 years four monthsto life under the OSL. On count 17 (sodomy), the court found the offense was committed within the same time-frame and location as the count 15 and count 16 offenses and, therefore, as in count6, exercised its discretion pursuant to Jessica’s law (§ 667.6, subd. (c)), to impose a consecutive term of 18 years four monthsto life under the HSOL and an additional consecutive term of 18 years four monthsto life under the OSL. (CT 15-16.) Imposition of the erroneous one-third the minimum mandatory term sentences was, apparently, pursuant to the trial court’s finding that the reduced counts were committed in the “same time frame.” (RT 812.) The phrase “same time frame”indicated that the trial court made findings that Counts 11 and 13 occurred during the same episode and that Counts 15, 16 and 17 occurred during the same episode and thus not necessarily meriting full and consecutive sentencing. In contrast, at the sentencing after remittitur, the trial court overlooked its prior finding that the listed counts occurred in the “same time frame,” and imposedfull and consecutivelife terms on each surviving -25- PETITION FOR REVIEW count.'” The court described the terms imposed as “55 yearsto life” under - the Habitual Offender Act and “17 years” under the One-Strike law. The increase of three of the terms imposed under the Habitual Offender Act to full-and-consecutive terms must be reversed because the cumulative punishment does, indeed, violate the prohibition against an increased sentence on remand. (CT 28-29 [Counts 6, 13 and 16].) Necessity for Review “When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.” (Cal. Const., art. I, §15; People v. Hanson (2000) 23 Cal.4th 355 [increase in restitution fine stricken], citing People v. Henderson (1963) 60 Cal.2d 482, 495-497 [death penalty imposed after successful appealof life sentence].) However, as withall rules, there are exceptions. The main exception being wherethe trial court imposed as punishment a sentence not authorized be law. In People v. Serrato (1973) 9 Cal.3d 753 (Serrato), overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, this court established an exceptionto this generalrule and held thatthe trial court may impose a more severe sentence on remandafter an appealifthe original sentence was unauthorized by law orillegal. When the original sentence is “an unauthorized sentence,”it “is subject to being set aside judicially andis no bar to the imposition of a proper judgmentthereafter, even thoughit is more severe than the original unauthorized pronouncement.”(Serrato,at p. "Count 17 [one ofthe two sodomy countsreversedfor instructional error] having been dismissed on motion of the District Attorney after remittitur, a consecutive term was not pronounced. -26- PETITION FOR REVIEW 764.) An unauthorized sentence maybeset aside judicially and a proper sentence may be imposedby the court even if the second sentence is more severe than the original unauthorized sentence. Yet, lest the exception swallow therule, “unauthorized” sentences must be distinguished from simply “erroneous” sentences. To determine whether defendants may be given greater sentences after appeals relating to sentencing error, appellate courts distinguish illegal sentences from sentencesthat are erroneous for some other reason. (People v. Brown (1987) 193 Cal.App.3d 957, 961 (Brown).) For example, “where the sentence imposedis not authorized by the statutes governing sentencing, the sentenceis illegal and no bar to subsequent imposition of a greater sentence." (/d., at pp. 961-962, citing Price, supra, 184 Cal.App.3d atp. 1409 [failure to impose enhancement under § 12022.3]; People v. Allen (1985) 165 Cal.App.3d 616, 630-631 [imposition of consecutive sentence in violation of § 669]; and other cases.) “On the other hand, where a sentence is authorized by statute but the court errs in the mannerof sentencing, for example, by failing to state reasons for sentencing choices, the resulting sentence is erroneous butnotillegal and is a bar to subsequent imposition of a greater sentence.” (Brown, supra, at p. 962.) “Unauthorized”is not so broad a category as to encompassall erroneously imposed sentences. Rather, an unauthorized sentence is one that has been pronouncedin excess of the court's jurisdiction or in violation of law. “[A] sentence is generally ‘unauthorized' whereit could not lawfully be imposed under any circumstancein the particular case.” (People v. Scott (1994) 9 Cal.4th 331, 354.) The Serrato court provided three examples of unauthorized sentences from the case law, including (1) where thetrial court imposed a concurrent sentence where the statute required a consecutive sentence; (2) where the trial court granted probation in a -27- PETITION FOR REVIEW murdercase; and (3) wherethe trial court imposed a jail sentence when the statute prescribed a prison sentence. (Serrato, supra, 9 Cal.3d at pp. 764-765, citing In re Sandel (1966) 64 Cal.2d 412, People v. Orrante (1962) 201 Cal.App.2d 553 (superseded by statute on another ground as stated in People v. Bailey (1996) 45 Cal.App.4th 926, 930), and Peoplev. Massengale (1970) 10 Cal.App.3d 689.) In contrast, the original term imposed in the instant case was well within the lawful range allowed by the Habitual Offender Act. Rather, the error was in calculating the reduced terms as such as reducing the minimum mandatory term to one-third as opposed either running the term concurrent or selecting a lawful determinate term. (§§667.6(c), 1170.1; and see Cal. Rules of Court, rule 4.426 discussed infra.) The original sentence imposed in the instant case, 458 years-to-life, with various life terms run consecutive and concurrent, was one in which the sentence was“authorized by statute but the court err[ed] in the manner of sentencing.” (Brown, supra,at p. 962.) -28- PETITION FOR REVIEW CONCLUSION For offenders facing a third strike, the Three Strikes law presents an alternative sentencing scheme which imposesan indeterminate life term instead of a determinate prison sentence. On the other hand, for second strike offenders the Three Strikes law leaves in place the determinate term but dramatically increases the calculation of the offender’s determinate term. Viewed throughthe lens of the Three Strike law, a determinate term is significantly more punitive. However,it is not necessary to further increase the punitive effect by interpreting the Three Strikes law as altering the mannerin whichrecidivist-type enhancements are applied to aggregate determinate terms. Such interpretation was probably not intended by the electorate, nor contemplated by the legislature, would dramatically increase the maximum penalty faced by second-strike offenders and the increased terms of imprisonment would result in unintended fiscal consequences. For the foregoing reasons, petitioner respectfully requests that this court grant review or such other and furtherrelief as this court deems appropriate. Respectfully Submitted, Attorney for Petitioner -29- PETITION FOR REVIEW APPENDIX --000— Opinion of the Court of Appeal First District, Division Five Filed February 11, 2014 Filed 2/11/14 CERTIFIED FOR PARTIAL PUBLICATION”® IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A136655 v. DARREN DERAESASSER, (Alameda County Defendant and Appellant. Super. Ct. No. C156534) Darren Derae Sasser (Sasser) appeals from a sentence imposed after we remanded the matter to the trial court for resentencing. He contends: (1) his new sentence of 495 yearsto life violates his right against double jeopardy, because the sentence is more severe than his original sentence of 458 years four monthsto life; and (2) the court erred in imposing a prior serious felony enhancement(Pen. Code, § 667, subd. (a)(1)) to multiple determinate terms imposed pursuant to the “Three Strikes” law (Pen. Code, §§ 667, subd. (e), 1170.12, subd. (c)(1)), as part of his stayed sentence underthe “One Strike” law (Pen. Code, § 667.61).! Wewill affirm. In the unpublished portion of our opinion, we conclude there was no double jeopardy violation. In the published portion of the opinion, we hold that a prior serious felony enhancement must be applied to each term imposed under the Three Strikes law, whether for a second strike offense or a third strike offense. * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception ofpart IT.A. 1 All statutory references are to the Penal Code. 1 I. FACTS AND PROCEDURAL HISTORY A comprehensive summary ofthe underlying facts is set forth in our prior unpublished opinion in People v. Sasser (July 27, 2011, A127431 [2011 WL 3198786]). Weneed not repeat the summary here,in light of the limited issues raised in this appeal. Instead, we focus on the jury’s verdict, Sasser’s initial sentence, our remand for resentencing, and Sasser’s new sentence on remand. A. Jury Verdict In October 2009, a jury convicted Sasser of 11 sexual offenses perpetrated against Jane Doe 1 (JD1) on November 9, 2005, and Jane Doe 2 (JD2) on November 17, 2005. As to JD1, Sasser was found guilty of one count of oral copulation (§ 288a, subd. (c)(2)), one count of sodomy (§ 286, subd. (c)(2)), and three counts of forcible rape (§ 261, subd. (a)(2)). As to JD2, he was found guilty oftwo counts of oral copulation (§ 288a, subd. (c)(2)), two counts of sodomy (§ 286, subd. (c)(2)), and two counts of forcible rape (§ 261, subd. (a)(2)). Collectively, he sustained convictions for three counts of oral copulation (count 2 as to JD1, counts 10 & 15 as to JD2); three counts of sodomy (count 5 as to JD1, counts 11 & 17 as to JD2); and five counts of forcible rape (counts 6, 7, & 8 as to JD1, counts 13 & 16 as to JD2). The jury also found true numerousallegations for sentencing purposes, including special circumstance allegations under Jessica’s Law (§ 667.6, subd. (d)) — that certain offenses involved the same victim on separate occasions — as well as multiple victim special circumstance allegations for life sentences under the OneStrike law (§ 667.61, subd.(c)). In addition, Sasser admitted a prior conviction for a lewd act on a child (§ 288, subd. (a)), which constituted a predicate for life terms underthe habitual sexual offender law (§ 667.71), constituted a strike under the Three Strikes law, and qualified as a serious felony prior for sentence enhancementpurposes (§ 667, subd. (a)(1)). He also admitted a prior prison term for the violent felony of assault with a deadly weapon (§ 245, subd. (a)(2)) for purposes of a sentence enhancement(§ 667.5). B. Initial Sentence In January 2010, Sasser was sentenced to consecutive life terms for each of his 11 convictions, with a minimum of 458 years four months. In other words, he received an indeterminate term of 458 years four monthsto life. In reaching this sentence, the court chose an indeterminate term of 25 years to life underthe habitual sexual offender law as the base term on counts 2, 5, 7, 8, 10, 11, and 15. (§ 667.61, 667.71, 667.6, subd. (d).) The court doubled each of these terms to 50- years-to-life as a secondstrike under the Three Strikes law, and then added to each term a five year enhancementfor the serious felony prior pursuant to section 667, subdivision (a)(1). The court found each ofthese offenses to constitute a separate act, and imposed these terms consecutively. The court also imposed eight year four month to life terms (one-third the midterm) under the habitual sexual offender law on counts 6, 13, 16, and 17, exercising its discretion under Jessica’s Law not to imposefull consecutive terms for these offenses because they were committed within the same time frame and samelocation (§ 667.6, subd. (c)). The court doubled each of these terms to 16 years eight monthsto life as a second strike under the Three Strikes law, and then enhanced each term by one year eight months (one-third the enhancement term) for the serious felony prior (§ 667, subd. (a)(1)). In addition, the court imposed but stayed sentence under the OneStrike law. In so doing, the court imposedall terms consecutively, without making a specific finding as to whether any of the offenses occurred on a “single occasion” under People v. Jones (2001) 25 Cal.4th 98, 107 (Jones). C. Prior Appeal and Remand In the ensuing appeal, we reversed the sodomy convictions under counts 11 and 17 due to instructionalerror. Wealso concludedthat the court imposed an unauthorized sentence with respect to counts 6, 13, 16, and 17, by imposing terms ofjust eight years four monthsto life, rather than 25 yearsto life, and recidivist enhancements ofjust one year eight months, 3 rather than five years. We stated: “The People argue the matter must be remandedto. correct the unauthorized sentence terms imposed on counts 6, 13, 16, and 17. Theyassert that although the court properly sentenced those counts consecutively it was required to imposefull-term consecutive sentences. Thus, they argue the court’s exercise of discretion reducing to one-third the indeterminate life terms and the prior serious felony enhancementterms (§ 667, subd. (a)) was unauthorized. We agree.” (Fn. omitted.) Morespecifically, we explained whythetrial court was not authorized to impose eight year four monthto life terms, rather than 25 year to life terms, on these counts. Relying on People v. Williams (2004) 34 Cal.4th 397 (Williams), the People had argued “that in imposing less than full life terms on counts 6, 13, 16, and 17, the court erroneously applied determinate sentencing principles to an indeterminate term. Williams held, ‘Section 1170.1 [requiring subordinate offenses to be punished by one-third the midterm] applies only to determinate sentences. It does not apply to multiple indeterminate sentences imposed under the Three Strikes law.’ (Williams, at p. 402.) ‘Multiple indeterminate terms sentenced consecutively are fully consecutive to each other. Any applicable conduct and status enhancements as to each countarefully consecutive to each other and arefully consecutive to the base term. (People v. Felix (2000) 22 Cal.4th 651.)’ [Citation.] Thus, the court erred in imposing less than full indeterminate life terms on counts 6, 13, 16, and 17.” Wealso explained whythe trial court was not authorized to reducethe recidivist enhancement from five years to one year eight months on these counts: “In addition, the People correctly assert that the trial court erred in imposingless than the full five year prior felony status enhancement (§ 667, subd. (a)) on counts 6, 13, 16, and 17. [{]] Section 667, subdivision (a) provides in part: ‘(1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includesall of the elements of any serious felony, shall receive, in addition to the sentence imposedby the court for the present offense, a five-year enhancementfor each such prior conviction on charges brought and tried separately. The 4 terms of the present offense and each enhancementshall run consecutively.’ [{] Where a defendanthasprior serious felony convictions, the court is required to imposea five-year section 667, subdivision (a) enhancement on each count for which it imposes a [Three Strikes law] sentence. (Williams, supra, 34 Cal.4th at pp. 403-405; [citation].) Thus, the court lacked discretion to imposeless than the full five-year enhancement on counts 6, 13, 16, and 17.” (Fn. omitted.) In another portion of our opinion, we agreed with the parties that the court erred in imposing mandatory consecutive life sentences under the One Strike law, instead of applying the spatial proximity test relevant at the time of his offenses under Jones, supra, 25 Cal.4th at page 107.2 In addition, we rejected Sasser’s request for the matter to be remanded on the groundthetrial court had been unawareof its discretion underthe habitual sexual offender law not to impose consecutive life sentences for crimes involving the same victim on separate occasions. Among other things, we notedthat the trial court had found counts 6, 13, 16, and 17 involved the samevictim on the same occasion and exercised its discretion under Jessica’s Law (§ 667.6, subd. (c)) to sentence consecutively; there was no reason to believe the court would exercise its discretion differently under the habitual sexual offender law. Accordingly, we remandedthe matter “for resentencing consistent with the views expressed in [our] opinion.” Specifically, we remandedsolely for the trial court “to correct the unauthorized sentence terms imposed on counts 6, 13, 16, and 17” and to “make a determination under Jones whether any of the offenses were committed against the same victim on a single occasion.” (Italics added, fn. omitted.) 2 Section 667.61 has been amendedto adopt the “separate occasions” language of Jessica’s Law andeliminate the “single occasion” language that was the focus of the court’s opinion in Jones. (See Jones, supra, 25 Cal.4th at pp. 105-107.) 5 D. Trial Court Proceedings on Remand Sasser was resentenced in July 2012. On respondent’s motion, counts 11 and 17 (relating to the convictions we overturned) were dismissed, and the court imposed sentence on the remaining nine counts. The court imposed a 25 yearsto life term for each of the offenses (i.e., this time as to counts 6, 7, 13, and 16; as well as to counts 2, 5, 8, 10, and 15, as previously imposed) pursuant to the habitual sexual offender law. The court doubled each of these term to 50 years to life pursuant to the Three Strikes law (§ 667, subd. (e)(1)), and added to each term five years for the serious felony prior (§ 667, subd. (a)(1)), for a total of 55 yearsto life for each offense. The result was an aggregate sentence of 495 yearsto life, rather than the 458 years four monthsto life originally imposed. Asto the sentence under the One Strike law (§ 667.61), the court determinedthat the offenses against the individualvictims were committed on a “single occasion” under Jones, but the court nonetheless exercised its discretion to sentence the charges consecutively. By imposing 55 yearsto life on count 2 and count 10 (25yearstolife, doubled pursuantto the Three Strikes law,plus five years for the serious felony prior), adding 17-year terms on each ofthe other seven counts (midterm of six years, doubled pursuant to the Three Strikes law, plus five years for the serious felony prior), and running the terms consecutively, the court imposeda total sentence of 229 yearstolife. The court stayed this sentencein light of the longer sentence imposed under the habitual sexual offender law. This appeal followed. II. DISCUSSION Weaddress Sasser’s contentions in turn. A. Double Jeopardy* Sasser contendshis right against double jeopardy was violated becausethetrial court imposed a sentence on remandthat was greater than his original sentence. We disagree.3 When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy generally precludes the imposition of more severe punishment on resentencing. (Cal. Const., art. I, § 15; People v. Hanson (2000) 23 Cal.4th 355, 363-366; People v. Henderson (1963) 60 Cal.2d 482, 495-497.) As Sasser acknowledges, however, no such limitation applies where the original sentence imposedbythetrial court was not authorized by law. (People v. Serrato (1973) 9 Cal.3d 753, 764-765, overruled on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Rodriguez (2012) 207 Cal.App.4th 204, 212 [“[w]e may set aside an unauthorized sentence so a proper sentence may be imposed, even if the new sentence is harsher”]; People v. Neely (2009) 176 Cal.App.4th 787, 799-800.) In our prior opinion, we expressly ruled that the sentence as to counts 6, 13, 16, and 17 was unauthorized by law: based on our Supreme Court’s decision in Williams, section 1170.1 did not authorize the imposition of one-third-the-midterm sentences for Sasser’s offenses, and section 667, subdivision (a) did not authorize the imposition of one-third of the enhancementterm for his serious felony prior. Accordingly, the court’s * See footnote, ante, page 1. 3 Sasser’s attorney did not object to the sentence on the specific groundthat his sentence was increased in violation of his right against double jeopardy. A double jeopardy claim maybeforfeited by a failure to assert it in the trial court. (See People v. Scott (1997) 15 Cal.4th 1188, 1201.) Sasser argues, to the extent counsel did not adequately preserve the issue for appeal, he was deprived ofeffective assistance of counsel. We will proceed to review the merits, since we would have to do so evenifthe challenge wasforfeited in order to resolve the ineffective assistance claim. (See ibid, cited in People v. Williams (1999) 21.Cal.4th 335, 343; see also People v. Daniels (2012) 208 Cal.App.4th 29, 31.) imposition of a sentence on remand that is more severe than the original sentence did not violate Sasser’s double jeopardyrights. Sasser contendsthat the original reduced terms on counts 6, 13, 16, and 17 could havebeen accomplished underthe habitual sexual offender law by a means other than section 1170.1, and therefore (1) the original sentence wasnotreally unauthorized, but just erroneous, and (2) the court on remand should not have imposedfull consecutive 25- year-to-life sentences. His arguments have no merit. 1. The Original Sentence Was Unauthorized, Not Merely Erroneous Sasserasserts that the court could have lawfully imposed the reduced terms for counts 6, 13, 16, and 17 by exercising its discretion under the habitual sexual offender law to imposeless than full consecutive sentences, rather than by erroneously using section 1170.1. The court’s error, Sasser thus urges, was “in calculating the reduced terms as [one-third]-the-midterm-to-life as opposed to selecting a lawful determinate term.” Because the length of the original term was within the permissible scope ofthe habitual sexual offender law, Sasser contends, the original sentence was “ ‘authorized by statute but the court err[ed] in the mannerof sentencing.’ ” Sasser’s reliance on People v. Brown (1987) 193 Cal.App.3d 957 (Brown)inthis regard is misplaced. In Brown, the court concluded that imposing a full two year enhancementin violation of a statutory limitation did constitute an unauthorized sentence and therefore did not bar imposition of a greater sentence on remand. (/d.at p. 963.) In dictum, the court stated that an example of an error “in the manner of sentencing” was a court’s failure to state reasons forits sentencing choices. (/d. at p. 962.) But that is not what occurred here. Here, the court imposed a sentence that was ostensibly predicated on section 1170.1 (imposing one-third the midterm) and impermissibly applied determinate sentencing principles to indeterminate sentences. Indeed, Sasser does not explain how the court could have reached the exact aggregate term of 458 years four months under any circumstancein this case, without relying on section 1170.1. (See People v. Scott (1994) 9 Cal.4th 331, 354 [‘“a sentence is generally ‘unauthorized’ whereit could not lawfully be imposed under any circumstancein the particular case,” as “where the court 8 violates mandatory provisions governing the length of confinement’’].) In any event, we expressly ruled in our prior opinion that the sentence was unauthorized, and our determination becamefinal in the case. The double jeopardy limitations on resentencing did not apply to Sasser’s sentence on remand. 2. The Sentence on Remand Was Not Erroneous Sasser similarly argues, althoughthe trial court was required on remandto change the sentences on counts 6, 13, and 16 from the “erroneous [one-third]-the-midterm-to-life sentences” (imposed under section 1170.1) to lawful sentences, it could have exercisedits discretion under the habitual sexual offender law to impose a sentencethat wasstill less than the full consecutive sentence, on somebasis other than section 1170.1. (See People v. Murphy (2001) 25 Cal.4th 136, 151 [court has discretion under habitual sexual offender law not to impose full, separate and consecutive sentences on offenses involving the same victim on the same occasion]; § 667.6, subd. (c).) Sasser asserts that the court therefore could have lawfully imposed some concurrent or lesser sentence on counts 6, 13, and 16, such that the aggregate sentence would not exceed the 458-years-four- months-to-life sentence that wasoriginally imposed. (For example, if the court had imposed sentence on counts 6, 13, and 16 to run concurrently, the total sentence would have beenjust 330 yearsto life.) Because the court did not do so, Sasser contends the court violated his right against double jeopardy. Sasser’s argument is meritless. Because the original sentence was unauthorized, the court on remand was not required to imposeless than full consecutive sentences on counts 6, 13, and 16. As explained ante, there was no double jeopardy requirement to do so. And to the extent Sasser argues that the court should have nonetheless showed leniency with respect to these counts because they were for offenses committed on the same occasion as other offenses, he fails to establish any abuse of discretion. In short, Sasser has not demonstrated any sentencingerror. B. Imposition of Multiple Enhancements for Sasser’s Prior Serious Felony On remand, regarding the sentence calculated under the OneStrike law, the court imposed a numberoffive-year enhancements for Sasser’s prior serious felony 9 conviction (§ 667, subd. (a)): an enhancementto each of the indeterminate terms on counts 2 and 10, plus an enhancementto each of the determinate terms on the seven other counts. Sasser argues that only one recidivism enhancement may be imposed on the entire determinate term portion of his sentence (along with an enhancement for each ofthe indeterminate terms). Again, we must disagree. 1. Law In People v. Tassell (1984) 36 Cal.3d 77 (Tassell), on which Sasserrelies, the court considered whether an enhancementfor a prior serious felony conviction (§ 667, subd. (a)) could be applied to each of several determinate terms imposed pursuantto section 1170.1. The court ruled that, although enhancementsthat relate to the acts constituting the offense (e.g., use of a firearm) can be addedto each applicable count, enhancementsthat relate to the defendant’s status or personalhistory (e.g. prior convictions under § 667.5 or 667.6) can be applied only once, to the aggregate sentence. (Tassell, at p. 90.) Therefore, as a status type of enhancement, an enhancementfor a prior serious felony conviction can be applied only once, to the aggregate sentence, when the aggregate sentence is comprised of determinate terms imposed pursuantto section 1170.1. In the matter before us, however, Sasser was sentenced under the Three Strikes law, not section 1170.1. Our Supreme Court in Williams, supra, 34 Cal.4th 397, thereafter considered whether an enhancementfor a prior serious felony conviction (§ 667, subd. (a)) could be imposedon each of several third strike indeterminate sentences imposed under the Three Strikes law. The court distinguished Tassel/, because Tassell involved determinate terms governed by section 1170.1: “Section 1170.1, however, applies only to determinate sentences. It does not apply to multiple indeterminate sentences imposed under the Three Strikes law.” (Williams, at p. 402.) The Williams court concluded: “The Three Strikes law, unlike section 1170.1, does not draw upon any distinction between status enhancements, based on the defendant’s record, and enhancements based on the circumstancesofthe current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each 10 new offense. Accordingly, we conclude that, under the Three Strikes law, section 667[, subd.] (a) enhancements are to be applied individually to each count of a third strike sentence.” (Williams, at pp. 404-405, italics added.) Sasser, however, received second strike sentences. Thecourt in People v. Misa (2006) 140 Cal.App.4th 837 (Misa) later considered whether an enhancementfor a prior serious felony conviction (§ 667, subd. (a)) could be imposedon both a secondstrike determinate sentence imposed underthe Three Strikes law and an indeterminate sentence. The court acknowledged that Williams addressed third strike indeterminate sentences rather than a secondstrike determinate sentence, but concludedthat “a similar analysis is applicable” in light of the policy objectives of the Three Strikes law. (Misa, at p. 846.) 2. Analysis Unlike the defendant in Tassell, Sasser was not sentenced undersection 1170.1, but under the Three Strikes law, which permits multiple enhancements. (See Williams, supra, 34 Cal.4th at p. 402; Misa, supra, 140 Cal-App.4th at p. 847.) Accordingly, the court did noterr in imposing a recidivist enhancementas to each of Sasser’s seven second-strike determinate terms. Sasser urges that neither Williams nor Misa applies to this case: Williams did not address a secondstrike determinative sentence under the Three Strikes law, and Misa did not addressa situation where, as here, there was more than one secondstrike determinate sentence under the Three Strikes law. He eveninterprets Misa as imposing a single five- year enhancementon the entire determinate portion ofMisa’s sentence (which happened to consist ofjust one determinate term), as opposedto a five-year enhancementfor each determinate term (no matter how manythereare). Sasser’s argumentis unpersuasive. The point underlying Williams and Misa is that the imposition of a sentence under the authority of the Three Strikes law — whether as a determinate term for a secondstrike or an indeterminate term for a third strike — meansthe term is fundamentally different than a determinate term imposed undersection 1170.1. Given the clear policy and intent behind the Three Strikes law — to increase 1] punishmentfor prior felony convictions — the fact that the sentence is governed by the Three Strikes law meansthat a recidivism enhancement undersection 667, subdivision (a)(1) may be imposed on each count. (Williams, supra, 34 Cal.4th at p. 404; Misa, supra, 140 Cal.App.4th at pp. 846-847.)4 In sum, deciding whether a recidivism enhancement should be applied to each count or only once to the aggregate sentence, the key distinction is not whether the term for the count is determinate or indeterminate, but whether it was imposed pursuant to section 1170.1 or pursuant to the Three Strikes law. If the term was imposed underthe Three Strikes law, either for a second strike offense or for a third strike offense, the enhancement must be applied.5 IH. DISPOSITION The sentencing orderis affirmed. 4 For example, Williams instructs us: “Under [the Three Strikes law], the status or nature of the offenderas a person previously convicted of serious felony offenses does not result merely in a single additional term of imprisonment for each prior conviction added on to the overall sentence that would otherwise be imposedforall ofthe new offenses. Instead, the Three Strikes law uses a defendant’s statusas a recidivist to separately increase the punishment for each new felony conviction. For a defendant with a single qualifying prior conviction, the sentence for each new offense is double what it otherwise would be. [Citations.]” (Williams, supra, 34 Cal.4th at p. 404, fn. omitted.) The court therefore recognized that the purpose of the Three Strikes law is manifested in its provisions for secondstrike sentences as well as its provisions for third strike sentences. 5 Alternatively, respondent argues, even if section 1170.1 applied to Sasser’s second strike determinative sentences, section 1170.1 expressly permits imposition ofmultiple enhancements to sex offenses. (See § 1170.1, subd. (h), added by Stats. 2000, ch. 689, § 1, p. 4557.) Subdivision (h) of section 1170.1 reads: “For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited, regardless ofwhether the enhancements are pursuantto this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term.” Here, all nine of Sasser’s offenses are listed in section 667.6, subdivision (e). Sasser counters that the absence ofa limit on the number of enhancements is different than mandating imposition of the enhancements. In light of our conclusion that the Three Strikes law applies so as to permit an enhancementas to each count, we need not and do not addressthis issue. 12 NEEDHAM,J. Weconcur. SIMONS,Acting P.J. BRUINIERS,J. (A136655) 13 Superior Court of Alameda County, No. C156534, C. Don Clay, Judge. Dirck Newbury, under appointment by the Court ofAppeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent. 14 CERTIFICATE OF SERVICE BY MAIL I declare under penalty ofperjury that I am a citizen ofthe United States over eighteen years ofage, not a party to the aboveaction or proceeding and that my business addressis Post Office Box 5575, Berkeley, California 94705 and that I served a copy ofthe attached PETITION FOR REVIEW Byplacing said copy in a sealed envelope addressed as follows: California Attorney General Alameda County District Attorney 455 Golden Gate Blvd., Suite 11000 1225 Fallon Street, 9" floor San Francisco, CA 94102-3664 Oakland, CA 94612 First District Appellate Project Darren D. Sasser, AC 1109 730 Harrison Street, Suite 201 Corcoran State Prison San Francisco, CA 94107 PO Box 5242 Corcoran, CA 93212 Alameda County Superior Court 1225 Fallon Street Oakland, CA 94612 First District Court of Appeal, Division Five, 350 McAllister St., S.F., CA (hand delivered) with postage thereon fully prepaid and thereafter deposited in the United States Mail at Alameda County, California, that there is delivery service or regular communication by United States mail and the place so addressed, and that the date of deposit in the mail is the date of execution ofthis certificate. I declare under penalty of perjury that the foregoing is true and correct, executed at Alameda County on March 14, 2014. Dirck Newbury CERTIFICATE OF WORD COUNT (Cal. Rules Court, rule 8.360(b)(1)) I, Dirck Newbury (State Bar No. 87959), declare under penalty of perjury that I am a citizen of the United States over eighteen years of age, not a party to the above action or proceeding and that my business address is Post Office Box 5575, Berkeley, California 94705 andthat the attached brief contains 7,918 words (per WordPerfect X5 wordprocessor). I declare under penalty of perjury that the foregoing is true and correct, executed at Alameda County on March 14, 2014. Dirck Newbury