Opinion
Review Granted June 23, 1994.
Review Granted Previously published at: 28 Cal.App.4th 1659, 23 Cal.App.4th 774
Opinion on pages 1334-1346 omitted.
REVIEW GRANTED.
COUNSEL [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
[28 Cal.Rptr.2d 577]Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., David H. Rose, Deputy Atty. Gen., for plaintiff and appellant.
Stuart R. Rappaport, Public Defender, Michael L. Chastaine, Deputy Public Defender, for defendant and respondent.
OPINION
PREMO, Acting Presiding Justice.
After this court reversed Penal Code section 667.7 findings of habitual offender status on appeal by defendant Robert Earl Jenkins, his sentence of 20 years to life for murder and assault was vacated and the matter was remanded to the trial court. (People v. Jenkins (Oct. 27, 1992) H008625 [nonpub. opn.].) The People had also appealed the sentence but it was then moot. (Id. at p. 14.)
Further statutory references are to the Penal unless otherwise stated.
At resentencing, the trial court promised it would not increase defendant's sentence, and he admitted that he acted with specific intent to inflict great bodily injury within the meaning of section 667.7 as to each count.
Over the People's objection, the court reimposed the 20-year to life state prison commitment. The People appeal a second time, again asserting that the sentence under section 667.7 was unauthorized. We agree and reverse the judgment for further proceedings.
FACTS
On September 9, 1990, at 2:30 a.m., defendant entered the San Jose home of Raymond Pacheco, Ben Padilla, and Cecilia McLaughlin. He stabbed and strangled Pacheco and assaulted Padilla with a knife and a toaster. Defendant was convicted at jury trial of the second degree murder of Pacheco by use of a knife (§§ 187, 12022, subd. (b)) and two [28 Cal.Rptr.2d 578] counts of assault with a deadly weapon on Padilla (§ 245, subd. (a)(1)). The information alleged that as to all three counts defendant used force likely to produce great bodily injury (§ 667.7), that he suffered four prior serious felony convictions of robbery by means of force (§ 667.7, subd. (a)(1)), and that he suffered two serious felony convictions (§§ 667, 1192.7).
The jury found true all the allegations of force, the prior serious felony convictions which qualified defendant under section 667.7 as an habitual offender of crimes involving force likely to produce great bodily injury, and two prior serious felony convictions under section 667. Section 667 requires that defendant receive an additional five-year consecutive sentence for each. Section 667.7 requires a sentence of life imprisonment with ineligibility for parole for 20 years or longer.
Section 667.7 provides, in pertinent part: " (a) Any person convicted of a felony in which the person inflicted great bodily injury ..., or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5 for the crime[s] of [list of crimes omitted] is a habitual offender and shall be punished as follows:
At the resentencing hearing, the trial court stated it was continuing to rely on People v. Victor (1991) 227 Cal.App.3d 518, 278 Cal.Rptr. 7 in making its sentencing choice.
The prosecution repeated its argument that the " court has the authority to run the life sentence on the murder consecutively to the habitual criminal sentence on the [section] 245 convictions which would be a sentence of 35 years to life. [¶ ] Also, the People's position is that the original sentence, ... was unauthorized by law because ... the court was required to pick between the sentencing schemes the greatest possible sentence and ... the minimum possible sentence ... was ... 15 years to life under the murder conviction and at least an additional 10 years for the serious felony priors which would have been a sentence of 25 years to life."
The prosecutor requested consecutive life sentences because defendant's " prior record and the facts of this particular case indicate that he is far more dangerous than somebody who had been convicted of first degree. It was an appropriate second degree murder [verdict] ... [b]ut just the blind acting out of an attack upon people for no reason at all makes him a tremendous danger to society." The court reimposed the original sentence. This appeal ensued.
ISSUES ON APPEAL
The People contend that " under all reasonable theories, [defendant's] sentence here was unduly restricted." The People propose that a proper sentence would include the 15-year-to-life sentence for the second degree murder with 10 years of enhancements for the two section 667 findings. " An additional weapon enhancement could be imposed under section 12022, as well as a consecutive subordinate term for one ADW. This term, of between 25 and 30 years, being longer than 20 years, would be appellant's minimum term."
" For purposes of simplicity," the People will not contest the application of section 654 to one of the assault counts.
THE CONTROLLING STATUTE
As he stood before the court for resentencing, defendant was a person with prior serious felony prison terms who was convicted at the same trial of murder and of two other serious violent felonies. We hold that defendant should have been sentenced on the murder count under section 190 and under section 667.7 for counts 2 and 3.
[28 Cal.Rptr.2d 579] We first arrived at this position while determining the issue of work credits in a case involving defendants with collections of charges similar to Jenkins'. In In re Diaz (1993) 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395, we declared that the sentencing scheme for convicted murderers contained in section 190 " applies to every person convicted of murder and that such persons must be sentenced under section 190 and receive the punishment that it prescribes."
We continued: " [T]he punishment prescribed by section 190 may not be modified by the subsequently enacted recidivist statute providing an entirely different sentencing scheme." (In re Diaz, supra, 13 Cal.App.4th at p. 1760, 17 Cal.Rptr.2d 395.)
We explained: " the language in section 667.7 referring to section 190 is designed to apply to a situation where a defendant with two prior prison terms is convicted of murder and sentenced under section 190 but is also convicted and sentenced at the same time for another serious violent felony falling within section 667.7. In such a case, the defendant would not be eligible for parole until he had reached the later of two potential minimum eligible parole dates, either his minimum date for the murder set under section 190 or the term under section 667.7 for the second offense. Given that the sentencing court under section 667.7 must always choose the greatest applicable minimum parole eligibility period [citation], [this] interpretation sensibly effects the intent of the drafters of section 667.7 to ensure that persons sentenced thereunder receive the greatest possible applicable punishment." (In re Diaz, supra, 13 Cal.App.4th at p. 1761, 17 Cal.Rptr.2d 395; see, contra, People v. Tuggle (1991) 232 Cal.App.3d 147, 283 Cal.Rptr. 422 and Brodheim v. Rowland (N.D.Cal.1991) 783 F.Supp. 1245, affd. in part and vacated in part in Brodheim v. Rowland (9th Cir.1993) 993 F.2d 716.)
In the instant case, the trial court reimposed the life term under section 667.7 for the murder count. For the assault charges of counts 2 and 3, the court imposed 13 years for each count, and stayed and struck the additional terms. In arriving at that sentence, the court chose the three-year midterm for each assault count and added five years for each of the two section 667 enhancements. It ordered the terms stayed pursuant to section 654 because " it involves the same victim with a different weapon, and essentially the same course of conduct." The court then struck the sentences on counts 2 and 3 pursuant to sections 654 and 667.7 " as being merged as the sentence imposed in count one under the authority of People v. Victor 227 Cal.App.3d 518 [278 Cal.Rptr. 7]."
People v. Victor, supra, states: " [S]ection 667.7 creates an independent, self-contained, indeterminate sentencing scheme for certain violent habitual offenders. For the adjudicated habitual offender with two prior prison terms for relevant violent crimes, section 667.7 provides a mandatory sentence in lieu of the determinate sentence the offender otherwise would have received under section 1170. [Citation.]" (227 Cal.App.3d at p. 524, 278 Cal.Rptr. 7. fn. omitted.)
However, as the Fifth Appellate District clarified in a later case, " Victor held only that the court cannot utilize any enhancements, whether necessary or unnecessary to a section 667.7 finding, if those enhancements relate to the count under which the habitual offender determination was made. Victor did not hold that once a habitual offender term is imposed no further consecutive terms may be imposed on separate counts." (People v. Burkett (1991) 1 Cal.App.4th 971, 976, 2 Cal.Rptr.2d 330.) Furthermore, more than one life term based on the same prior convictions does not bar the imposition of consecutive life sentences. (Id. at p. 977, 2 Cal.Rptr.2d 330.)
The record makes clear that the trial court believed that defendant's habitual offender status mandated that the murder count be punished pursuant to section 667.7 and that People v. Victor, supra, 227 Cal.App.3d 518, 278 Cal.Rptr. 7, deprived it of discretion to impose consecutive sentences. If a court believes it has no discretion to impose a particular sentence, it clearly does not exercise its discretion with respect to that sentencing choice. (People v. Myers (1983) 148 Cal.App.3d 699, 704, 196 Cal.Rptr. 234.)
[28 Cal.Rptr.2d 580] LIMITS ON RESENTENCING
The People assert that on remand for resentencing, the trial court may impose a more severe sentence than the original one.
" [W]here a trial court has imposed an unauthorized and therefore illegal sentence the sentence may be set aside judicially and is no bar to the imposition of a proper judgment even though it is more severe than the prior unauthorized sentence. [Citations.]" (People v. Savala (1983) 147 Cal.App.3d 63, 66, 195 Cal.Rptr. 193, disapproved on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1044, 216 Cal.Rptr. 865.)
On the other hand, where the sentence is authorized by statute but the court errs in the manner of sentencing, the resulting sentence is erroneous but not illegal and is thus a bar to subsequent imposition of a greater sentence. (People v. Brown (1987) 193 Cal.App.3d 957, 961-962, 238 Cal.Rptr. 697.) Furthermore, when a case is remanded for resentencing by an appellate court, " the trial court is entitled to consider the entire sentencing scheme.... This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme. [Citation.]" (People v. Hill (1986) 185 Cal.App.3d 831, 834, 230 Cal.Rptr. 109.)
In the instant case, the original sentence was imposed under an inapplicable statute, and was therefore unauthorized. Consequently, on remand for resentencing, the trial court is not limited by the prior unauthorized sentence.
THE INDICATED SENTENCE
In response to the People's demand that defendant receive a longer sentence, defendant points out that he admitted the truth of the section 667.7 allegations because of a bargain with the trial court that it would reimpose the original sentence. Therefore, " [i]f, by virtue of this court's ruling, Mr. Jenkins will not realize the benefit of his bargain, he is entitled to withdraw his plea."
" [A]n ‘ indicated sentence’ ... is a distinct way of compromising a case short of trial. When giving an ‘ indicated sentence,’ the trial court simply informs a defendant ‘ what sentence he will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.’ [Citations.] An accused retains the right to reject the proposed sentence and go to trial. The sentencing court may withdraw from the ‘ indicated sentence’ if the factual predicate thereof is disapproved. [Citation.]" (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1271, 1 Cal.Rptr.2d 333.)
" ‘ [I]ndicated sentences' fall within the boundaries of the court's inherent sentencing powers and, in contrast to plea bargains, prosecutorial consent is not required. [Citations.]" (People v. Superior Court (Ramos), supra, 235 Cal.App.3d at p. 1271, 1 Cal.Rptr.2d 333.)
In a case similar to ours, where a trial court accepted a plea of guilty to multiple charges conditioned on concurrent sentences although the prosecutor correctly objected that the sentence was not authorized by law, this court stated: " the concurrent sentence was unauthorized and could not have been lawfully imposed. It must be vacated, and the trial court must give [defendant], if she chooses, the opportunity to withdraw her plea since it cannot be honored. (§ 1192.5....)" (People v. Baries (1989) 209 Cal.App.3d 313, 319, 256 Cal.Rptr. 920.)
Nevertheless, at oral argument, the People took the position that at resentencing defendant should not be allowed to withdraw his admissions of the section 667.7 allegations.
The People stated: " this plea was specifically conditioned ... on the possibility that it would be appealed and that the People would win and that it would go back for resentencing under our interpretation of the facts— expressly conditioned, and respondent expressly consented that his admissions of the two priors were independent of the sentencing scheme.... It could not be more clear that the admissions to the two five-year priors [28 Cal.Rptr.2d 581] and the facts underlying the five-year priors were expressly admonished to be independent of the stance that this came back after the People's appeal of which respondent was expressly apprised."
Defendant's admissions were to the elements of the section 667.7 allegations, not to the fact that he suffered prior serious felony convictions.
An examination of the resentencing transcript shows that defendant was told at least twice that upon his admission of the section 667.7 allegations, the trial court would impose a sentence no greater than 20 years to life. The second promise, phrased " as a result of the admission ..." came immediately after defendant waived his trial rights on the issue of the section 667.7 allegations. The court then allowed the prosecution to " supplement the voir dire examination."
The trial court also expressed doubt whether the section 667.7 allegations could be retried. However, there is no practical barrier to continued prosecution of an enhancement before a second jury where jeopardy is not a bar. (People v. Schulz (1992) 5 Cal.App.4th 563, 569, 7 Cal.Rptr.2d 269.)
The deputy district attorney stated: " Mr. Jenkins, the court has indicated to you the sentence that you are going to receive. However, the People will file a notice of appeal. And if the People are successful on the notice of the appeal you could be sentenced for up to at least 35 additional years in state prison, and at that time you will not have an opportunity to relitigate these charges. Do you understand that?
" [THE DEFENDANT]: Yes.
" [THE PROSECUTOR]: Do you understand that if you're unsuccessful on your [ sic ] appeal the case would simply come back here for resentencing and you would not be able to relitigate the habitual criminal issues in this case?
" [THE DEFENDANT]: Yes.
" [THE PROSECUTOR]: Do you understand also that the People offered to give up their rights to appeal in this case and have you sentenced to 25 years to life in the state prison, and my understanding is that you have rejected that offer from your attorney?
" [THE DEFENDANT]: That's correct."
Aside from being confusing in its references to defendant's being " unsuccessful on [his] appeal" and his not being able " to relitigate the habitual criminal issues in this case[,]" this advisement is mere surplusage and has no effect on the agreement between defendant and the court.
" The defendant may plead guilty to all charges and when he does so all that remains is the pronouncement of judgment and sentencing. There is no requirement that the prosecutor consent to a guilty plea. [Citation.]" (People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 915, 147 Cal.Rptr. 554.) In this case, defendant admitted all the section 667.7 allegations set forth in the information. He received no accommodation as a result of a negotiated settlement with the prosecutor. In fact, the prosecutor did all in his power to dissuade the court from proceeding with the indicated sentence by objecting to it and arguing for a heavier penalty.
In addition, the prosecutor's advisement cannot operate as a waiver of defendant's bargain with the court. A waiver is " [a]n intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and the conduct of the accused." (Johnson v. Zerbst (1938) 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.)
First, the prosecutor was not a party to the agreement and had no power to add a term to the agreement. Second, merely informing the defendant that he " cannot relitigate the habitual criminal issues in this case" is not a clear statement that in the event the sentence was struck down on appeal, defendant would lose the benefit of his bargain and would not be allowed to withdraw his admissions to the section 667.7 allegations.
Third, by acknowledging that he understood the prosecutor's statement, defendant did not consent to the loss of his option to [28 Cal.Rptr.2d 582] withdraw the admissions if he lost the benefit of his bargain.
" ‘ [T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]’ [Citation.] It ‘ " [i]s the intelligent relinquishment of a known right after knowledge of the facts.’ [Citation.]" [Citation.] The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.]" (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662, 17 Cal.Rptr.2d 445.)
We are satisfied that this transcript does not contain the agreement that defendant would receive the agreed sentence in exchange for his admissions but that if the sentence was struck down on appeal he could not withdraw the admissions. The remedy for the failure of the bargain is the opportunity to withdraw the admission. (People v. Baries, supra, 209 Cal.App.3d at p. 319, 256 Cal.Rptr. 920.)
Consequently, when on remand the trial court recalculates the sentence under section 190 for count one and under section 667.7 for counts two and three (which will result in a greater term than that indicated to defendant when he made the admissions to the section 667.7 allegations), defendant should be offered the opportunity to withdraw those admissions.
DISPOSITION
The judgment is reversed and remanded to the trial court for proceedings consistent with this opinion.
ELIA and WUNDERLICH, JJ., concur.
" (1) A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 [determining length of term] for the underlying conviction, including any enhancement applicable under Chapter 4.5 [trial court sentencing] ..., or any period prescribed by Section 190 [punishment for murder] or 3046 [life sentence— time for parole], whichever is greatest. The provisions of Article 2.5 [credit on term of imprisonment] ... shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time."