Opinion
G044559 Super. Ct. No. 03CF1641
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. LINDSEY RUSSELL AUSTIN, Defendant and Appellant.
Christian C. Buckley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Christian C. Buckley, 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.
In our prior nonpublished opinion People v. Austin (July 21, 2009, G039056), we affirmed in part, reversed in part, and remanded with directions to the trial court to resentence Lindsey Russell Austin. On remand, the trial court sentenced Austin to four years and eight months in prison, the same sentence the trial court imposed at the first sentencing hearing. Austin argues the trial court abused its discretion in sentencing him to the identical sentence. We disagree and affirm the judgment.
FACTS
We need not provide a detailed recitation of the facts of the case. Suffice it to say, a jury convicted Austin of 24 counts of grand theft auto (GTA) (Pen. Code, § 487, subd. (d)(1)), six counts of nonsufficient fund (NSF) checks (§ 476a, subd. (a)), seven counts of grand theft (§ 487, subd. (a)), and one count of fraudulent use of an access card (§ 484g). The trial court sentenced Austin to a total term of four years and eight months in prison. The court selected count 1 GTA (Quartz) as the principal term and imposed a two year sentence. The court imposed consecutive subordinate terms of eight months (one-third of the base term) on NSF check count 13 (Tustin Nissan), GTA count 18 (Quartz), grand theft count 31 (Paysinger), and grand theft count 40 (West Coast Hogs). The court imposed concurrent terms of two years on all the remaining counts (27 counts of grand theft, five counts of NSF checks, and one count of fraudulent use of an access card). Austin was released from prison on May 17, 2009.
All further statutory references are to the Penal Code.
In our prior nonpublished opinion two months later, we explained 24 counts of GTA should be reduced to two convictions: one count of GTA (count 1) regarding the Quartz cars; and one count of GTA (count 24) concerning the Tustin Nissan cars. We also stayed the sentences on some of the remaining counts.
We affirmed Austin's convictions for GTA (Quartz), count 1, and GTA (Tustin Nissan), count 24. We reversed his convictions on the remaining Quartz GTA convictions (counts 2-12 & 18-23), and the remaining Tustin Nissan GTA convictions (counts 25-29). We affirmed the convictions on all remaining counts. We vacated the sentences on the remaining convictions and remanded the matter "to the trial court for resentencing consistent with this court's ruling regarding the applicability of section 654 to the various counts."
On remand, in accordance with our opinion, the trial court dismissed counts 2 through 12, 18 through 23, and 25 through 29. After hearing counsels' argument, the trial court stated: "Well, I think the court was very thorough in its analysis back in June of 2007 when I considered everything . . . . [¶] That being stated, I want the record to reflect that I considered everything, including [Austin's] lack of previous criminal record . . . . I went through the appropriate rules of court. I am not going to go through everything again right now. I am going to have my entire analysis incorporated by reference into this sentencing because that really doesn't change. All that changes are some legal issues that the court of appeal mandated that have to be done with respect to the sentencing. [¶] And so I am looking at what happened due to the fact that these 22 counts should have been reversed, [and] some other counts should have been [stayed]. Does that change my analysis? And it just does not, it simply does not. [¶] . . . [¶] So now I just feel that the court should appropriately incorporate the new court of appeal's opinion and reconstruct sentencing according to that mandate. And that just does not change my feeling that four years eight months was a fair and appropriate sentence at the time."
The trial court resentenced Austin to a total term of four years and eight months in prison. The court selected count 1 GTA (Quartz) as the principal term and imposed a two year sentence. The court imposed consecutive subordinate terms of eight months (one-third of the base term) on NSF check count 15 (Joe's Garage), GTA count 24 (Tustin Nissan), grand theft count 31 (Paysinger), and fraudulent use of an access card count 39 (West Coast Hogs). The court imposed two-year concurrent terms on counts 16, 17, 32, 33, 34, 35, and 37. Pursuant to section 654, the court stayed the sentences on counts 13, 14, 38, and 40. Austin appealed, again.
DISCUSSION
Austin argues that at resentencing the trial court erroneously imposed the same sentence because the court did not afford him a new sentencing hearing and "re-engage the evaluative process" based on his decreased culpability. We disagree.
In People v. Burbine (2003) 106 Cal.App.4th 1250, 1254, defendant was convicted of three sex offenses. The trial court imposed the middle term on the base count and sentenced defendant to an aggregate term of 16 years. The appellate court reversed one of the subordinate counts and remanded the matter for resentencing. (Id. at p. 1253.) On remand, the trial court imposed the upper term on the base count, and again imposed an aggregate term of 16 years. (Id. at p. 1255.) On appeal, defendant argued the sentence on remand was improper. The court stated: "'When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] 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.' [Citations.]" (Id. at p. 1258.) The appellate court explained "a judge's subjective belief regarding the length of sentence to be imposed is not improper so long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria." (Id. at p. 1264.) The court added, "there is nothing in the record in this case to indicate that, on resentencing, the trial judge was reasoning backward from a subjectively selected sentence." (Ibid.) Rather, the appellate court stated the trial court had "exercised [its] sentencing discretion based on an analysis of legitimate factors." (Ibid.)
Here, the trial court properly exercised its sentencing discretion based on an analysis of legitimate factors. The court was confronted with a legal issue: the proper sentence after we reversed convictions and opined the court should stay sentences on other specified convictions. Contrary to Austin's contention, the court did consider Austin's decreased culpability. The court considered both defense counsel's and Austin's argument the court should impose a lesser sentence. The court explained that it had previously provided a detailed and thorough explanation as to its sentencing choices and the court incorporated that analysis into its resentencing. That the court incorporated its previous analysis does not establish the court failed to consider Austin's decreased culpability. The court's statements reflect it certainly recognized it had to determine the proper sentence based on Austin's decreased culpability. The court stated: "And so I am looking at what happened due to the fact that these 22 counts should have been reversed, some other counts should have been [stayed]." After considering Austin's lack of a previous criminal record and the circumstances of the case under the rules of court, the court concluded Austin's decreased culpability did not change its analysis and the proper sentence was four years and eight months.
The trial court's decision to impose the same sentence was not so irrational or arbitrary that no reasonable person could agree with the sentence. (People v. Jones (2009) 178 Cal.App.4th 853, 860-861.) Thus, the trial court afforded Austin a full and complete second sentencing hearing where it considered all the relevant facts within the applicable sentencing criteria.
DISPOSITION
The judgment is affirmed.
O'LEARY, ACTING P. J. WE CONCUR: ARONSON, J. FYBEL, J.