Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF156441. Paul Vortmann, Judge.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
In a previous appeal (People v. Menera (Dec. 5, 2007) F051444) we reversed one of defendant Luis Miguel Rojas Menera's four convictions. The People chose not to retry him on the reversed count and he was resentenced. Defendant appeals, making multiple challenges to the imposition of sentence for a firearm enhancement found true by the jury but not imposed at his first sentencing. As modified in our disposition, the judgment is affirmed.
We have taken judicial notice of the file in defendant's previous appeal, F051444.
FACTS AND PROCEDURAL HISTORY
Defendant and Elizabeth Gonzalez broke up their relationship. M. is their daughter. Gonzalez was in the passenger seat of a car driven by Vicente Tostado. M. was in the back seat of the car strapped in her car seat. Defendant approached the car and yelled to Gonzalez to get out of the car. When she did not do so, defendant walked to the driver's side of the car. After defendant's attempt to open the driver's door was unsuccessful, he fired five times into the vehicle. Tostado suffered three gunshot wounds. M. had lacerations to her face.
Defendant was convicted in count 1 of the willful, deliberate and premeditated attempted murder of Tostado. In addition, the jury found true the special allegations that defendant personally and intentionally used a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)), used a firearm (§ 12022.5), and inflicted great bodily injury (§ 12022.7). In count 2, defendant was convicted of assault with a semiautomatic weapon against Gonzalez. (§ 245, subd. (b).) In addition, it was found defendant used a firearm during the commission of the crime. (§ 12022.5.) M. was the victim in count 3, a conviction for assault with a semiautomatic firearm. (This count was reversed in the original appeal and not retried by the People.) Defendant was convicted in count 4 of shooting at an occupied vehicle in violation of section 246. The jury found true the allegation that defendant personally used a firearm that caused great bodily injury to Tostado and M. in violation of section 12022.53, subdivision (d). The jury also found true the allegation that defendant personally inflicted great bodily injury upon Tostado. (§ 12022.7.)
All future code references are to the Penal Code unless otherwise noted.
At defendant's original sentencing on October 10, 2006, the court imposed a term of 15 years to life for count 1, plus an additional 25 years to life for the section 12022.53, subdivision (d) firearm use enhancement. The court stayed the other gun use enhancement and the great bodily injury enhancement. The court imposed the upper term of nine years for count 2 plus the upper term of 10 years on the gun enhancement. An identical sentence was imposed for count 3. Counts 2 and 3 were ordered to run concurrent to count 1. The court imposed the upper term of seven years in count 4 and ran that term concurrent to count 1, for a total term of 40 years to life.
The aggravating factor used by the court to impose the upper term was that defendant is a real threat of danger. This fact was not found true by the jury beyond a reasonable doubt.
Defendant appealed raising numerous errors. We reversed count 3 based on instructional error and remanded the case to the trial court for retrial of count 3, or for resentencing if the People chose to not retry count 3. Because resentencing would have to occur in any event, we did not determine any of the sentencing issues raised on appeal. In our opinion, we noted two concessions by the People regarding sentencing error. The first concession by the People was the trial court erred when it imposed a term of 15 years to life for the attempted murder when in fact the correct sentence was a term of life with the possibility of parole with a minimum term of seven years. The People's second concession was the sentence in count 4 must be stayed; this concession was based on the fact that punishment was already imposed for crimes against each of the three separate victims: count 1 (victim Tostado), count 2 (victim Gonzales), and count 3 (M.).
The case was remanded to the trial court. The People elected not to retry defendant for count 3. The People filed a sentencing memorandum setting forth their position that at defendant's original sentencing hearing the court imposed an illegal sentence when it ran the terms imposed in counts 1 and 4 concurrent to one another. The People claimed that the trial court was required to impose separate section 12022.53, subdivision (d) firearm enhancements in counts 1 and 4 and was required to run those sentences consecutive to one another.
A supplemental probation report was prepared containing the recommendation that defendant receive life with the possibility of parole for the attempted murder plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. A sentence of six years for count 2 plus four years for the section 12022.5 firearm enhancement was recommended to run concurrent to count 1. As to count 4, the probation officer recommended that defendant receive the midterm of five years with that count stayed. No mention was made in the report of the section 12022.53, subdivision (d) firearm enhancement in count 4, and the report did not contain a discussion regarding the People's sentencing memorandum advocating that count 4 must be imposed consecutively and include a 25-years-to-life firearm enhancement.
At resentencing, defense counsel submitted the matter on the report. The People had only one comment to add and stated that "as we discussed in chambers" the probation department did not properly address the section 12022.53 firearm enhancements.
The judge who originally sentenced defendant was retired at the time of resentencing. On April 14, 2008, a different judge pronounced sentence after remand. The court sentenced defendant to prison on count 1 for a term of life with the possibility of parole plus an additional and consecutive 25 years to life for the section 12022.53 firearm enhancement. The midterm of six years was ordered in count 2, plus a consecutive four-year term for the section 12022.5 enhancement. This 10-year term was ordered to run concurrent to count 1. In count 4, defendant was sentenced to one-third the midterm of five years (one year and eight months) plus an additional term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. Count 4 was ordered to run consecutive to the term in count 1.
DISCUSSION
I. Imposition of Firearm Use Enhancement in Count 4 at Resentencing
At the original sentencing hearing, the trial court sentenced defendant to the upper term of seven years on count 4 and ran that term concurrent to count 1. The court made no mention of the section 12022.53, subdivision (d) firearm enhancement that was found true in count 4. As previously set forth, defendant raised numerous sentencing issues in his first appeal, yet neither defendant nor the People pointed out that a section 12022.53, subdivision (d) firearm enhancement was not imposed by the trial court. Because of the reversal in count 3, we did not reach any of the sentencing issues before us.
At resentencing the trial court imposed count 4 consecutively, including the section 12022.53, subdivision (d) firearm enhancement, apparently adopting the People's contention that the original judge imposed an unauthorized sentence when he failed to impose the firearm enhancement in count 4 and that because of the firearm enhancement count 4 must be served consecutively.
Defendant now claims that regardless of whether the original failure to impose the enhancement was intentional or an oversight, the problem could not be corrected at the resentencing hearing and the trial court erred in imposing the firearm enhancement in count 4. Defendant points to several factors in support of his argument, including that the prosecutor did not object or mention the enhancement at the original sentencing hearing, the prosecutor did not file a notice of appeal from the first sentencing, and the People did not point out the error in the first appeal. The final factor defendant relies on is that the prosecutor did not tell the court at resentencing that the enhancement was not originally imposed, nor did he make an argument that such an error could be corrected at any time. Defendant contends the prosecutor should not be rewarded for the above described behavior and should be estopped from claiming that the enhancement was properly imposed at resentencing.
Although the factors defendant relies on to make his argument are all accurate, defendant does not discuss the doctrine regarding unauthorized sentences. This doctrine governs the resolution of this issue. "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction." (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Under section 12022.53, subdivision (h), the court must impose the section 12022.53, subdivision (d) enhancement and is not authorized to strike it; thus the failure to impose the enhancement was unauthorized. An unauthorized sentence is subject to correction when it comes to the attention of the trial court or the reviewing court, and the imposition of a proper sentence is not barred even when the correction results in a sentence more severe than the original unauthorized pronouncement. (In re Renfrow (2008) 164 Cal.App.4th 1251, 1256.)
The failure of the original trial judge to impose the section 12022.53 firearm enhancement in count 4 was unauthorized. At resentencing, the trial court was authorized to correct this sentence after it was brought to the court's attention.
II. Applicability of Section 654 to Count 4
Defendant contends the sentence in count 4 should have been stayed pursuant to section 654. It is argued that this court did not reach defendant's section 654 issue in the first appeal because respondent conceded the issue in defendant's favor. From this, defendant claims that when a reviewing court does not reach an issue because it has been conceded by an adversary the reviewing court should not address the issue in a second appeal.
Defendant misses the mark once again. In defendant's first appeal, we reversed count 3 and remanded for retrial or, at a minimum, for resentencing based on instructional error, and thus declared all sentencing issues moot. We noted, without any determination, that respondent had conceded two issues, including that count 4 should be stayed pursuant to section 654. We did not reach the issue in the first appeal because it was moot, not because respondent had conceded the point. Additionally, respondent's concession that count 4 should be stayed was based on the fact that defendant had already been punished for each separate victim: Tostado in count 1, Gonzalez in count 2, and M. in count 3. Because we reversed count 3, the basis of respondent's concession was no longer viable.
The People chose not to retry count 3; thus at resentencing the multiple-victim exception allowed for imposition of sentence on the three remaining counts. It has been repeatedly held that "the limitations of section 654 do not apply to crimes of violence against multiple victims." (People v. King (1993) 5 Cal.4th 59, 78.)
III. Consecutive or Concurrent Sentence for Count 4
At defendant's original sentencing hearing, the court ran counts 2, 3, and 4 concurrent to count 1. At resentencing, the People submitted to the court that the sentences for counts 1 and 4 must run consecutive to one another because the section 12022.53, subdivision (d) firearm enhancement must be imposed as an additional and consecutive term. At resentencing the court ordered the term in count 4, including the 25-years-to-life section 12022.53, subdivision (d) firearm enhancement, to run consecutive to count 1.
Defendant contends that the two California Supreme Court cases relied on by the prosecutor do not mandate that the sentence for a conviction that contains a section 12022.53, subdivision (d) enhancement must be run consecutively. In addition, defendant argues the judge at the original sentencing hearing chose concurrent sentences and the judge at the second hearing should have been guided by the choices made by his predecessor, but the second judge was not aware he had discretion to do so.
Firearm enhancements pursuant to section 12022.53, subdivision (d) "shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." The proper method of computing these enhancements has been discussed in detail in two California Supreme Court cases.
In People v. Oates (2004) 32 Cal.4th 1048 two shots were fired into a group of five individuals during a gang confrontation. Only one person, Barrera, was shot and injured. Defendant was tried and convicted for five counts of attempted premeditated murder, one count for each person in the group. In addition, as to each count the jury found true other enhancements, including a section 12022.53, subdivision (d) enhancement. The trial court sentenced the defendant for the attempted murder of Barrera and added a term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court imposed a 20-year section 12022.53, subdivision (c) enhancement in count 5, staying the section 12022.53, subdivision (d) enhancement, and ran count 5 consecutive to count 1. For the remaining counts, the court imposed concurrent sentences, staying the other firearm enhancements and staying the section 12022.53, subdivision (d) enhancements pursuant to section 654. (Oates, supra, at pp. 1053-1054.)
On appeal the defendant argued several sentencing issues, including that the trial court could impose only one section 12022.53, subdivision (d) enhancement. The Court of Appeal found that section 654 precluded imposition of two subdivision (d) enhancements based on the single injury to Barrera. In addition, the Court of Appeal found that the trial court should strike the section 12022.53, subdivision (d) enhancement in count 5, not stay the enhancement. The Supreme Court disagreed, finding that a subdivision (d) enhancement should be imposed as to each of the defendant's five attempted murder convictions based on the single injury to Barrera because the defendant's actions met the requirements of this subdivision, having personally and intentionally discharged a firearm and proximately caused great bodily injury to a person other than an accomplice in each instance. (People v. Oates, supra, 32 Cal.4th at pp. 1054-1057.) "Because the requirements of the subdivision (d) enhancement have been satisfied as to each of defendant's attempted murder convictions, subdivision (f) of section 12022.53 requires that the enhancement be imposed as to each conviction." (Id. at p. 1056.) "[T]he Legislature specifically considered the issue of multiple enhancements and chose to limit the number imposed only 'for each crime,' not for each transaction or occurrence and not based on the number of qualifying injuries." (Id. at p. 1057.)
The Supreme Court went on to hold that section 654 did not apply to the imposition of multiple section 12022.53, subdivision (d) enhancements because section 654 does not apply to crimes of violence against multiple victims. (People v. Oates, supra, 32 Cal.4th at p. 1063.)
In People v. Palacios (2007) 41 Cal.4th 720, the defendant was convicted of attempted premeditated murder, kidnapping for robbery, kidnapping for carjacking, carjacking, and robbery--all arising from one incident and involving only one victim. As to each count the jury also found that the defendant discharged a firearm and personally inflicted great bodily injury pursuant to section 12022.53, subdivision (d) based on the one shot fired at the single victim. "Defendant was sentenced to three consecutive terms of life imprisonment with the possibility of parole for the attempted murder and the two kidnapping convictions. The trial court added a section 12022.53, subdivision (d) enhancement of 25 years to life for each of these convictions. Sentencing on the remaining counts and enhancements was stayed pursuant to section 654." (Palacios, supra, at p. 724.)
The defendant appealed, arguing that the trial court erred pursuant to section 654 in imposing sentence for three section 12022.53, subdivision (d) enhancements based on the firing of one shot at a single victim. The Court of Appeal agreed because there was only a single act of discharging a firearm and only one victim of all of the crimes. The appellate court instructed the trial court to stay imposition of the section 12022.53, subdivision (d) enhancements that were attached to the two kidnapping convictions. The Supreme Court granted review and found that sentence enhancements under section 12022.53, subdivision (d) are not limited by the multiple punishment prohibition of section 654. The Supreme Court found that "in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654." (People v. Palacios, supra, 41 Cal.4th at pp. 727-728.) The Supreme Court remanded the matter to the court with instructions to reinstate the 25-years-to-life terms imposed for the section 12022.53, subdivision (d) enhancements appended to the kidnapping for robbery and kidnapping for carjacking convictions. (Palacios, supra, at p. 734.)
The People here argued at resentencing that the decisions in Oates and Palacios required the trial court to impose consecutive sentences for counts 1 and 4 because they each contained a section 12022.53, subdivision (d) enhancement. Respondent now argues that consecutive sentences were permissible and within the trial court's discretion at resentencing.
As pointed out by defendant, the Supreme Court in People v. Oates, supra, 37 Cal.4th at page 1060, stated that "a trial court can mitigate concerns about sentencing inequities by imposing concurrent, rather than consecutive sentences where multiple [section 12022.53] subdivision (d) enhancements are found true."
Thus, defendant is correct, the trial court could have properly added an additional and consecutive term of 25 years to life to the sentence imposed in count 4 and then ordered that the entire sentence imposed in count 4 be served concurrently even though it contained a section 12022.53, subdivision (d) enhancement. A concurrent sentence in count 4 is legally authorized.
We need not determine if the trial court at resentencing should have given deference to the intent of the judge at the original sentencing because, as discussed below, the trial court at resentencing was not authorized to impose a sentence after remand that exceeded the sentence originally imposed.
IV. Increasing a Sentence at Resentencing
The sentence imposed at the original sentencing in count 1 was erroneous because the term for the attempted murder should have been a term of life with the possibility of parole, with a minimum parole eligibility of seven years, plus an additional 25 years to life for the section 12022.53, subdivision (d) enhancement. The sentence in count 4 was unauthorized (see previous discussion at pages 5-7) because the trial court at the original sentencing failed to impose the section 12022.53, subdivision (d) enhancement, but the imposition of a concurrent sentence in count 4 was not unauthorized (see previous discussion at pages 7-10).
At resentencing, the trial court sentenced defendant to prison on count 1 for a term of life with the possibility of parole plus an additional and consecutive 25 years to life for the section 12022.53, subdivision (d) firearm enhancement. The midterm of six years was ordered in count 2, plus a consecutive four-year term for the section 12022.5 enhancement. This 10-year term was ordered to run concurrent to count 1. In count 4, defendant was sentenced to one-third the midterm of five years (one year and eight months) plus an additional term of 25 years to life for the section 12022.53, subdivision (d) gun enhancement. Count 4 was ordered to run consecutive to the term in count 1.
Defendant contends the trial court was barred from imposing a more severe sentence on resentencing. Respondent claims the original sentence imposed was an unauthorized sentence because the court neglected to impose the section 12022.53, subdivision (d) enhancement in count 4 and thus defendant's sentence increase was proper.
While we agree with respondent that the failure to impose the section 12022.53, subdivision (d) enhancement in count 4 was an unauthorized sentence, our previous discussion illustrates that imposing this enhancement does not require a longer sentence because count 4 could properly be ordered to run concurrent to count 1.
The prohibition against double jeopardy "generally prohibits the court from imposing a greater sentence on remand following an appeal." (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) An unauthorized sentence is subject to correction when it comes to the attention of the trial court or the reviewing court and the imposition of a proper sentence is not barred even when the correction results in a sentence more severe than the original unauthorized pronouncement. (In re Renfrow, supra, 164 Cal.App.4th at p. 1256.) But, when the correction of the unauthorized portion of a sentence does not mandate the imposition of a higher total sentence, the trial court may not impose a sentence longer than the sentence originally imposed. (People v. Torres (2008) 163 Cal.App.4th 1420.)
Count 4 was originally imposed as a concurrent sentence, although the court failed to add the section 12022.53, subdivision (d) sentencing enhancement to the sentence imposed. The failure to add the sentencing enhancement to count 4 was an unauthorized sentence, but the imposition of the consecutive sentence for the enhancement does not result in a mandatory longer aggregate sentence because the court at the original sentencing was authorized to impose the entire sentence in count 4 concurrently.
In ordering the sentence in count 4 to be served consecutively, the trial court erroneously imposed a greater total sentence on remand in violation of double jeopardy. The failure of defense counsel to object to the consecutive sentence does not alter this conclusion. The trial court was without the power to impose such a sentence on remand.
There is no reason to remand the matter to the trial court for resentencing. The currently imposed sentence in count 1 (life with possibility of parole after seven years plus a consecutive 25-years-to-life enhancement) is correct. Ordering that count 2 or count 4 run consecutive to count 1 would result in a sentence longer than the sentence originally imposed and would be unauthorized. The sentence in count 4 is erroneous because it should have run concurrently, not consecutively. Because the sentence in count 4 is no longer a consecutive sentence, it is no longer subject to the one-third the midterm requirement in section 1170.1 and must be imposed as the full middle term of five years plus 25 years to life for the enhancement, but imposed as a concurrent sentence.
DISPOSITION
We order that the sentence in count 4 be the middle term of five years with a consecutive term of 25 years to life for the section 12022.53, subdivision (d) sentence enhancement; the entire term in count 4 shall run concurrent to count 1, and count 2 will continue to run concurrent to these other terms. We further direct that the abstract of judgment be so modified and that corrected copies be sent to the appropriate authorities.
WE CONCUR: ARDAIZ, P. J., CORNELL, J.