Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC470553
McAdams, J.
This is defendant’s second appeal arising from his convictions for second degree murder, shooting at an occupied motor vehicle, and personal, intentional discharge of a firearm, proximately causing the death of the victim. (Pen. Code §§ 187, 246, 12022.53, subd. (d).) He was sentenced to state prison for 40 years to life, plus five years. In his first appeal, H030338 (nonpub., filed 9/20/07), this court determined that the trial court had erred in summarily denying defendant’s request to withdraw his guilty plea. We reversed the judgment and remanded the case to the trial court “to permit defendant, through counsel, to make a motion to withdraw his plea. If defendant declines to move to withdraw his plea, or if the motion is denied, the defendant shall be resentenced in accordance with his plea.” (Slip opn., p.7.)
Unless otherwise indicated, all statutory references are to the Penal Code.
In this appeal, which follows resentencing on remand, defendant contends that the trial court erred by imposing far greater restitution fund and parole revocation fines than it had imposed originally. The Attorney General agrees. For the reasons set forth below, we accept the concession and again reverse the judgment.
PROCEDURAL HISTORY
The historical facts underlying defendant’s convictions are not relevant to this appeal and we do not summarize them. The relevant procedural facts are as follows.
On May 11, 2006, the trial court re-sentenced defendant and imposed a restitution fund fine of $220 and a parole revocation fine, which it suspended, in the same amount. (§§ 1202.4, subd. (b), 1202.45.) On remand, retained counsel was relieved and the public defender was appointed. Defendant unsuccessfully moved, through new counsel, to withdraw his plea. Thereafter, on July 24, 2008, the court again sentenced defendant to a state prison term of 40 years to life, plus five years. This time, however, the court imposed a restitution fund fine and a parole revocation fine of $10,000 each.
Defendant was originally sentenced on April 27, 2006. The court re-sentenced defendant after concluding that the original sentence it imposed was unauthorized.
The court orally imposed fines of $200, but the clerk’s transcript reflects the $220 amount.
Citing People v. Hanson (2000) 23 Cal.4th 355 (Hanson), defendant contends that the drastic increase in the restitution fund and parole revocation fines from $220 to $10,000 violated the state constitution’s double jeopardy bar. In his letter brief, the Attorney General agrees with this contention. In Hanson, our Supreme Court held that a restitution fine under section 1202.4 is a “criminal penalty rather than a civil remedy” (id. at p. 362), and is governed by the rule that a defendant “should not be penalized for properly invoking [precedent] to overturn his erroneous conviction and sentence by being rendered vulnerable to punishment more severe than under his plea bargain.” (Id. at p. 360, internal citations omitted.) The Hanson court reasoned: “[I]mposition [of the fine] is mandatory with a minimum of $200 and a maximum of $10,000. Thus, on resentencing the trial court has not only the obligation to reimpose a fine, but the discretion to substantially increase it depending upon the original amount. Here, the increase was tenfold. In these circumstances, one who appeals an erroneous conviction at the risk of a greater fine is indistinguishable from one who hazards a longer period of incarceration. In both situations, the defendant suffers a penalty for invoking the right to raise that challenge.” (Id. at p. 363.)
We are mindful that the rule invoked here does not apply when “a defendant seeks to withdraw a guilty plea or repudiate a plea bargain.” (Hanson, supra, 23 Cal.4th at p. 360, fn. 2.) In this case, defendant did seek on appeal and in the trial court to withdraw his guilty plea. However, his plea was not set aside. Therefore, we conclude that double jeopardy principles still apply. Accordingly, we accept the Attorney General’s concession and reverse the judgment.
CONCLUSION
Increasing the restitution fund fine and probation revocation fines imposed pursuant to sections 1202.4 and 1202.45 from $220 to $10,000 on resentencing violated the state constitution’s double jeopardy clause.
DISPOSITION
The judgment is reversed. The trial court is directed to reduce the fines imposed pursuant to sections 1202.4 and 1202.45 from $10,000 to $220, and to send a corrected Abstract of Judgment to the Department of Corrections.
WE CONCUR: Bamattre-Manoukian, Acting P.J.Mihara, J.