Opinion
E051987 Super.Ct.No. RIF128566
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER TRAVON BRADLEY, Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed with directions.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Christopher Travon Bradley appeals from the sentence imposed following remand for resentencing after we determined that his original sentence was not authorized by law. He contends that the court impermissibly increased the restitution fine because it was not the restitution fine but the term of imprisonment which was unauthorized. He also contends that if his attorney failed to preserve the issue for appeal, she rendered constitutionally ineffective assistance.
We will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Bradley and a codefendant were convicted on six counts of armed robbery. Bradley pleaded guilty to the six counts and admitted the allegation that as to all six counts he had participated as a principal knowing that another principal in the offense was armed with a firearm, within the meaning of Penal Code section 12022, subdivision (d). (All statutory citations refer to the Penal Code unless another code is specified.) Bradley did not have a plea agreement.
The trial court sentenced Bradley to a total term of eight years in state prison, including enhancements under section 12022, subdivision (d). Bradley appealed, asserting that the sentence was unauthorized because section 12022, subdivision (d) applies only to drug offenses. He asserted that he should have been sentenced under section 12022, subdivision (a).
We dismissed the appeal because Bradley failed to obtain a certificate of probable cause. (People v. Bradley (Nov. 16, 2009, E046061) [nonpub. opn.] (Bradley 1).) However, we granted in part Bradley's petition for a writ of habeas corpus, finding that because section 12022, subdivision (d) is factually inapplicable to Bradley's crimes, the sentence was unauthorized. (An unauthorized sentence is one, such as the prison term imposed pursuant to section 12022, subdivision (d) originally imposed in this case, which could not lawfully be imposed under any circumstance in the particular case. (People v. Scott (1994) 9 Cal.4th 331, 354.)) We remanded the matter for resentencing under the correct subdivision. And, because Bradley's plea was "open" for no agreed term, we held that the trial court was entitled "to consider all sentencing elements in determining a just sentence." (In re Bradley on Habeas Corpus (Mar. 24, 2010, E049710) [nonpub. opn.] [at p. 2] (Bradley 2).)
We take judicial notice of the opinions and the record in Bradley 1 and Bradley 2. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On remand, the trial court again imposed an eight-year term of imprisonment, applying the correct enhancements. It also stated that it had "rethought" the restitution fine it had originally imposed—$200—and had determined that a restitution fine of $200 per count was more appropriate, given that there were "many victims." Accordingly, it imposed a restitution fine in the amount of $1,200, and imposed and stayed a parole violation fine in the same amount.
Bradley filed a timely notice of appeal.
LEGAL ANALYSIS
1.
TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE BY
FAILING TO PRESERVE DEFENDANT'S CLAIM FOR REVIEW
Bradley contends that the increased restitution fine imposed on remand for resentencing on his successful habeas corpus petition violated state constitutional provisions prohibiting double jeopardy and guaranteeing due process of law and violated his federal due process rights. He did not object to the sentence below, and consequently forfeited appellate review of his constitutional claims. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20.) If his claims are meritorious, however, then his attorney's failure to object to the increased restitution fine deprived him of his right to the effective assistance of trial counsel under the state and federal Constitutions. (Strickland v. Washington (1984) 466 U.S. 668, 688-689; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) Consequently, in order to address the claim of ineffective assistance of counsel, we must first address the merits of the constitutional claims.
The Increased Restitution Fine Did Not Violate the State Constitution.
Basing his argument on People v. Hanson (2000) 23 Cal.4th 355 (Hanson),Bradley contends that the increased restitution fine violated the prohibition against double jeopardy provided for in article I, section 15 of the California Constitution and denied him his state constitutional right to due process.
In Hanson, the California Supreme Court addressed the contention that an increased restitution fine upon resentencing—from $1,000 to $10,000—following the partial reversal of the defendant's conviction violated the California Constitution. Article I, section 15 of the California Constitution prohibits the imposition of greater punishment following a successful appeal of a criminal conviction. The court concluded that because a restitution fine is a criminal punishment, state double jeopardy and due process guarantees prohibit an increase in a restitution fine following the successful appeal of a conviction, for the same reasons that those principles prohibit any increase in the term of imprisonment. (Hanson, supra, 23 Cal.4th at pp. 358-367.)
Although double jeopardy principles embodied in the California Constitution preclude imposition of more severe punishment on resentencing following a successful appeal, federal double jeopardy principles do not. (Hanson, supra, 23 Cal.4th at p. 358.) We address Bradley's federal due process argument below.
However, state double jeopardy and due process principles do not prohibit imposition of greater punishment upon resentencing after an appeal where the original sentence was not authorized by law. (Hanson, supra, 23 Cal.4th at p. 360, fn. 3, citing People v. Serrato (1973) 9 Cal.3d 753, 764 (Serrato), disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) Accordingly, because Bradley's appeal arises from resentencing to correct an unauthorized sentence rather than resentencing following a successful challenge to the conviction, Hanson does not support his argument. Indeed, in Hanson, the court stated that because in that case there was no contention that the original restitution fine imposed was unauthorized, "we have no basis for invoking the [Serrato]exception on these facts." (Hanson, at p. 360, fn. 3.)
Apart from his misplaced reliance on Hanson, Bradley contends that where the term of imprisonment is unauthorized but the restitution fine originally imposed was not unauthorized, the trial court cannot increase the restitution fine upon remand for resentencing to correct the unauthorized sentence because, although the restitution fine is criminal punishment, it is of a different nature than incarceration and its constitutionality must be analyzed separately. He cites no authority for that proposition, and we have not found any cases which discuss it. Nor does he develop the argument beyond the bald assertion that because restitution fines are "different" from prison terms, correction of an illegal prison term should not include the discretion to increase the accompanying restitution fine. We note, however, that as discussed in Serrato, supra, 9 Cal.3d 753, vacating an unauthorized sentence returns the case to the status quo ante and affords the trial court the same sentencing discretion it had before it imposed the unauthorized sentence. (Id. at pp. 762-765.) Stated another way, the trial court's discretion is not limited to correcting the illegal portion of the sentence, if it had legal and illegal components. Rather, the court has the discretion to impose any lawful sentence, even if it is harsher than the original unauthorized sentence. (People v. Hill (1986) 185 Cal.App.3d 831, 834-835; see also People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 488-489 [court has discretion to impose harsher sentence, even though the more severe sentence was not required in order to correct prior unauthorized sentence].) In the absence of any authority or a properly developed argument, we need not address this contention. (People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.)
In addition, it appears that it is law of the case that the trial court had the discretion to increase the restitution fine: In Bradley 2, we held that the trial court was entitled "to consider all sentencing elements in determining a just sentence." (Bradley 2, supra, E049710 [at p. 2].) Since the parties have not addressed this issue, however, we need not decide it.
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The Increased Restitution Fine Did Not Violate Federal Due Process Principles.
A trial court's discretion to impose a harsher sentence upon remand to correct an unauthorized sentence is not unlimited, however. As Bradley points out, a court violates the defendant's federal constitutional right to due process if it increases the sentence vindictively, in retaliation for the defendant's exercise of his or her right to challenge an unauthorized sentence or to appeal the conviction. However, as we will discuss, he has not demonstrated any vindictiveness in his resentencing.
In North Carolina v. Pearce (1969) 395 U.S. 711 (Pearce), the court held that when a defendant succeeds on appeal in having a conviction set aside and upon retrial is convicted again, the court may not thereafter impose a greater sentence as punishment for the successful appeal. Accordingly, the Supreme Court concluded, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." (Id. at p. 726.) Further, Pearce held, the reasons "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." (Ibid.)
Subsequently, the Supreme Court held that the Pearce rule applies only where there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. (Alabama v. Smith (1989) 490 U.S. 794, 799-800; People v. Williams (1998) 61 Cal.App.4th 649, 657.) Where there is no such reasonable likelihood, the burden is on the defendant to prove actual vindictiveness. (Alabama v. Smith, supra, at pp. 799-800.)
Here, even if we presume vindictiveness, the presumption is rebutted by the record. First, the court imposed the same prison term as it had previously, eight years. The aggregate term consisted of the middle term of three years on the principal count, plus the one-year enhancement; three consecutive terms of one year, plus three four-month enhancements; and two concurrent terms. Had the court wished to be vindictive, it could have sentenced Bradley to consecutive terms on all counts, for an additional two years eight months. Next, the court stated that upon reflection and after reviewing "all these materials," it had decided to increase the restitution fine from $200 to $200 per count because there were "many victims." This is supported by the record. Although Bradley was charged with only six counts of robbery, the probation report shows a total of eight victims: three victims in the first incident (counts 1 & 2); one victim in the second incident (count 3); two victims in a single incident charged as count 4; and one victim each in two separate incidents charged as counts 5 and 6. Further, the restitution fine imposed is only slightly over 10 percent of the $10,000 maximum restitution fine (§ 1202.4, subd. (b)(1)), and is far less than the amount which would have resulted based on the formula the Legislature apparently deems to be reasonable: "the product of two hundred dollars ($200) multiplied by the number of years the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted" (§ 1202.4, subd. (b)(2)). Applying that formula in this case, the restitution fine would have been $9,600. Because the court imposed only the same term of imprisonment it had previously imposed and increased the restitution fine for a rational reason and to an amount far less than would have reasonable under the circumstances of this case, there is no basis for concluding that the court was motivated by vindictiveness.
2.
THE MATTER MUST BE REMANDED TO THE TRIAL COURT FOR THE
PURPOSE OF CALCULATING THE NUMBER OF DAYS BRADLEY SPENT IN
CUSTODY BEFORE RESENTENCING
Upon resentencing, the trial court awarded Bradley the same number of presentence custody credits (491 days of actual custody and 74 days of good time/work time credits, totaling 565 days) that he received when he was originally sentenced on June 20, 2007. Bradley contends, and the Attorney General concurs, that the matter must be remanded with directions to the trial court to calculate the actual time Bradley had served prior to the resentencing.
We agree. In People v. Buckhalter (2001) 26 Cal.4th 20, the California Supreme Court held that "when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (Id. at p. 29.) Here, the trial court modified Bradley's sentence not only with respect to the restitution and parole revocation fines but also both as to the terms and enhancements imposed on each of the counts of conviction.
Because Bradley's claims with respect to the sentence are without merit, his trial attorney's failure to object did not cause her performance to fall below objective standards of professional competence, and his claim of ineffective assistance of counsel fails. (Strickland v. Washington, supra, 466 U.S. at p. 688; People v. Ledesma, supra, 39 Cal.4th at pp. 745-746.)
DISPOSITION
The judgment is affirmed. The cause is remanded to the Riverside County Superior Court, and the court is directed to recalculate and credit against the modified sentence all actual time defendant Christopher Travon Bradley has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody, and to issue an amended abstract of judgment. A copy of the amended abstract of judgment shall be provided to the defendant and to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Ramirez
P.J.
Miller
J.