Opinion
NOT TO BE PUBLISHED
PETITION for Writ of Habeas Corpus. James Bascue and David S. Wesley, Judges. Writ granted. Los Angeles County Super. Ct. No. LA003178
Allison H. Ting, under appointment by the Court of Appeal, for Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Kathy S. Pomerantz, Deputy Attorneys General, for Respondent.
EPSTEIN, P. J.
Otis Tooks petitions for writ of habeas corpus. He argues that during sentencing for a 1993 mayhem conviction, the court re sentenced him on a 1990 robbery conviction, adding five sentence enhancements that were neither admitted by him nor adjudicated in the 1990 robbery case. We grant partial relief on the petition.
FACTUAL AND PROCEDURAL SUMMARY
In 1990, in case No. LA003178, petitioner was convicted of multiple counts of second degree robbery (Pen. Code, § 211; all subsequent statutory citations are to that code). In a jury trial, he was found guilty of five weapon enhancements under section 12022.5, subdivision (a). The court also found true two prior convictions under section 667, subdivision (a), and three prior prison terms under section 667.5, subdivision (b). Petitioner was sentenced to state prison for an aggregate term of 35 years 4 months.
Three years later, in case No. BA032527, petitioner was charged with mayhem (§ 203), evidently over an incident while in custody. He piled guilty to that crime and admitted three prior serious felony convictions under section 667, subdivision (a), as well as seven prior prison terms under section 667.5, subdivision (b).
Sentencing occurred on March 30, 1993. Two minute orders were produced bearing that date, one for the new charges in case No. BA032527, and one under the number for the 1990 case, LA003178. In the second order, the trial judge effected to re sentence petitioner in that earlier case “in conjunction with” the later case. The new sentence was not only for robbery but also for several enhancements, including a serious felony under section 667, subdivision (a).
The court amended the abstract of judgment in case No. LA003178 to include the additional five enhancements. Although petitioner admitted the additional five enhancements as part of his plea in No. BA032527, he had not admitted them in the earlier case, No. LA003178, nor were they adjudicated when he was originally sentenced in that case. Petitioner argues that the effect of the re sentencing was to increase his punishment for the earlier crime from 35 years 4 months to 45 years 8 months.
Petitioner filed a petition for habeas corpus relief in the trial court, which was denied. He then filed the present petition in this court, challenging the jurisdiction of the trial court to increase his sentence for the 1990 conviction. We invited respondent to file an informal response. The response to our request essentially argued that petitioner had admitted the prior conviction and prior prison term enhancements. We later asked respondent to address specific questions, asking whether petitioner’s admissions had occurred at the original sentencing in the LA003178 case, whether the 1990 robbery conviction was used both as the principal term and the basis for an enhancement and, if so, the justification for such dual use. The response acknowledged that the robbery conviction was indeed used both as the basis for the principal term and as an enhancement, but argued this was justified because the sentencing occurred in the context of a plea bargain. Finally, at oral argument, petitioner’s attorney asked permission to file a letter addressing respondent’s plea bargain argument. We granted that request, and petitioner’s supplemental letter was also received and considered. It denied that the plea admissions were made in exchange for a specific term or a term cap.
Having considered the briefing, letters, and oral argument, we conclude that petitioner is entitled to relief with respect to the dual use of the robbery conviction as a principal term and an enhancement to that term.
DISCUSSION
The convoluted procedural history in this case is complicated by the lack of a reporter’s transcript of the 1990 sentencing proceeding. Apparently the trial court attempted to locate that transcript but was unable to do so. It appears that the court reporter had retired and the notes were destroyed when 10 years had passed after the sentencing.
The general rule is that, once sentence has been pronounced and the defendant has commenced serving a prison term in accordance with that sentence, the trial court has no authority to re sentence the defendant. (People v. Karaman (1992) 4 Cal.4th 335, 344.) While petitioner admitted the 1990 robbery conviction and prior prison term allegations in connection with the 1993 sentencing, that fact, by itself, does not justify re sentencing on the 1990 conviction. Respondent argues that the re sentencing is justified because it occurred in the context of an aggregate sentence for both the 1990 and 1993 charges, as provided by section 1170.1, subdivision (a) and rule 4.452 of the California Rules of Court. These provisions effectively create an exception to the rule against re sentencing once a defendant had begun serving an earlier sentence. (See People v. Begnaud (1991) 235 Cal.App.3d 1548, 1551.)
Respondent is correct to this point. The statute specifically deals with how trial courts should act in imposing an aggregate term. It requires that the aggregate term for all convictions “shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms,” and certain firearm enhancements under section 12022.1. “The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (§ 1170.1, subd. (a), italics added.) Rule 4.452 explains that the sentences on all determinate term counts “in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case” and the judge in the current case “must make a new determination of which count, in the combined cases, represents the principal term” under section 1170.1, subdivision (a). (Rule 4.452(1) & (2).)
In this case, the court identified the sentence for the 1990 robbery conviction as carrying the largest sentence and hence as the principal term. Neither side challenges the propriety of that selection. The court imposed enhancements for certain of the prior prison terms admitted in the 1990 case. But the court also imposed a prior serious felony enhancement based on the same robbery conviction. Such dual use is inconsistent with the provision in section 1170.1, subdivision (a) that subordinate consecutive terms and enhancements are for terms “other” than the principal term. It also is inconsistent with the provision in rule 4.452 that, in imposing the aggregate sentence, the court “must pronounce a single aggregate term, as defined in section 1170.1(a) . . . [¶] (1) . . . as though they were all counts in the current case.”
Nevertheless, respondent presents two arguments to justify the dual use of the 1990 robbery conviction. The first is that petitioner is estopped to challenge any error in the aggregate sentence because it was imposed in the context of a plea bargain, and he accepted the benefits of that bargain. Respondent relies on the rule that a defendant who accepts the benefits of a plea bargain is estopped from later challenging the resulting sentence as illegal. (See, e.g., People v. Hester (2000) 22 Cal.4th 290, 295.) This typically occurs when a defendant agrees to a maximum (“capped”) term, to be selected by the court or already agreed to by the parties, which is less than the term to which he or she could have been imprisoned.
But, as petitioner points out in his letter, the record in this case does not demonstrate that defendant accepted the benefit of a sentence cap in consideration for his plea, or that he was admonished that his plea could result in the dual use of the robbery conviction as the basis of the principal term and an enhancement. Indeed, the plea bargain justification for the sentence was not raised until respondent argued it in its letter brief to this court.
Respondent’s second argument is that while the aggregate sentence was issued under case No. LA003178 (the 1990 conviction), the enhancement was to the 1993 conviction, No. BA032527; that the prior robbery conviction is a proper enhancement to the sentence for the 1993 conviction, and if it is not imposed, petitioner would receive a “windfall.” But that argument is inconsistent with the concept that, in imposing an aggregate sentence, all determinate terms are to be imposed as though they were counts in the current case. (Rule 4.451.) Quite obviously, in sentencing on multiple counts in a single case, the trial court cannot use a conviction both as the principal term and as an enhancement.
We are satisfied that the trial court erred in using the 1990 robbery conviction both as the principal term and as a serious felony prior conviction enhancement.
But we are not satisfied that the remedy is simply to strike the robbery conviction enhancement. Instead, the trial court should be permitted to reconsider the aggregate sentence and re sentence defendant in a fashion that complies with the applicable statute and rule, without such dual use.
DISPOSITION
The petition for habeas corpus is granted and the trial court is directed to re sentence defendant to a new aggregate term that does not exceed the aggregate term imposed in 1993, and which does not use the same conviction or the resulting prison term as a basis for both the principal term and as a sentence enhancement to that term.
We concur: WILLHITE, J., SUZUKAWA, J.