Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 178189
Haerle, J.
I. INTRODUCTION
In 2000, Tyrone Cooper was convicted by a jury of robbery (Pen. Code, § 212.5, subd. (c)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). Previously, this court affirmed the convictions on direct appeal and reversed an order granting relief by writ of habeas corpus. Appellant contends the superior court erred in resentencing him on October 31, 2007, claiming that the court had no jurisdiction to do so. We disagree and hence affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND ,
We described the factual background of appellant’s convictions in our prior opinions, case Nos. A093286 and A112947. (People v. Cooper (Mar. 8, 2002, A093286) [nonpub. opn.] [2002 WL 368612] (Cooper I); In re Cooper (Apr. 27, 2007, A112947) [nonpub. opn.] [2007 WL 1229492], review den. July 11, 2007, S153248 (Cooper II).) Because the facts are not pertinent to the issues before us in this appeal, we will not recount them here.
At appellant’s request, we have taken judicial notice of the opinion in case No. A112947 and the appellate record and files in case No. A120200, which was before Division Four of this court. (People v. Cooper (Mar. 26, 2009, A120200) [nonpub. opn.].) At respondent’s request, we have taken judicial notice of the appellate record in case No. A112947. (Evid. Code, § 459, subds. (a), (d).)
A. The 1999 Case, San Francisco Superior Court No. 174197
In 1999, appellant pleaded guilty to assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)), and admitted an enhancement for personal infliction of great bodily injury (§ 12022.7). The San Francisco Superior Court imposed a five-year prison sentence, suspended execution of the sentence, and ordered appellant to serve three years’ probation. (Cooper II, supra, 2007 WL 1229492, at pp. *1-*2.) Appellant did not appeal.
B. The 2000 Case, San Francisco Superior Court No. 178189, Appeal No. A093286
In 2000, appellant was convicted by a jury in San Francisco of robbery (§ 212.5) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)). He separately admitted the 1999 prior conviction of assault that was alleged as a serious felony and as a strike pursuant to section 667, subdivisions (a) and (d)-(e). The trial court sentenced appellant to the upper term of five years on the robbery count, doubled pursuant to the strike allegation, and stayed imposition of sentence on the assault charge, for a total prison term of ten years. The court did not impose the five-year prior serious felony enhancement.
On appellant’s direct appeal, this court affirmed the convictions. (Cooper I, supra, 2002 WL 368612.) We further held that the trial court erred in failing to impose a mandatory five-year enhancement under section 667, subdivision (a). This court remanded the case to the trial court for resentencing, and affirmed the judgment in all other respects. The remittitur issued on June 20, 2002. Appellant appeared in the trial court for resentencing on July 24, 2005, and counsel was appointed for him.
C. Appellant’s Petition for Habeas Corpus, Appeal No. A112947
On July 25, 2005, appellant filed a petition for writ of habeas corpus to vacate the judgment in his 1999 case and the sentence in his 2000 case, claiming ineffective assistance of counsel in the 1999 case. On December 15, 2005, the trial court granted the writ of habeas corpus, vacated appellant’s conviction and related enhancement in the 1999 case, and vacated appellant’s sentence in the 2000 robbery/assault case, which was based in part on the 1999 prior conviction. Based on this grant of habeas corpus, on January 26, 2006, the superior court resentenced appellant in the 2000 case to a term of five years in state prison. Due to appellant’s accrued credits, his sentence was deemed served.
On the same day, July 25, 2005, appellant filed a motion to withdraw his admission of the 1999 prior conviction alleged as a serious felony in the 2000 robbery/assault case. After granting the writ of habeas corpus, the trial court took this motion off calendar.
The record contains conflicting minute orders and abstracts of judgment following the hearing for resentencing. One minute order dated January 26, 2006, and one abstract of judgment dated February 15, 2006, reflect that appellant was sentenced to five years plus a five-year enhancement, for a total of 10 years; another minute order dated January 26, 2006, and a corresponding abstract of judgment dated May 3, 2006, indicate that appellant was sentenced to five years with no enhancements. The transcript of the sentencing proceedings on January 26, 2006, reflects that the sentence was five years with no enhancements. Henceforth, for the sake of clarity, we will refer to a singular “sentencing order” of January 26, 2006, by which we mean the five-year term with no enhancement.
On February 10, 2006, the People filed a notice of appeal from the December 15, 2005, order granting appellant’s petition for writ of habeas corpus. The notice of appeal listed trial court case numbers 178189 (the 2000 case) and 174197 (the 1999 case). In the opening brief, the People requested “that this Court reverse the trial court’s order vacating [appellant’s] conviction in case number 174197, order that the conviction be reinstated, and remand the case for resentencing in case number 178189.” On April 27, 2007, this court reversed the trial court’s order granting appellant’s habeas corpus petition. (Cooper II, supra, 2007 WL 1229492.) The court’s disposition stated: “The judgment of the superior court granting the petition for writ of habeas corpus is reversed.” (Id. at p. *7.) The remittitur issued on August 8, 2007.
D. Resentencing in Superior Court Case No. 178189
On August 30, 2007, the superior court called case number 178189 for the resentencing which had been ordered in Cooper I. Appellant filed a sentencing memorandum challenging the trial court’s jurisdiction to resentence him and arguing, in the alternative, that the court could make all sentencing decisions anew. The People opposed appellant’s jurisdictional claim. On October 31, 2007, the superior court ruled that it retained jurisdiction to resentence appellant in case number 178189. It struck appellant’s prior conviction under the Three Strikes law, and sentenced him to five years in prison on count one, robbery, and five years for the section 667, subdivision (a), enhancement, for a total prison term of 10 years.
Appellant filed a timely notice of appeal.
III. DISCUSSION
Appellant contends that the only valid sentencing order in this case was issued by the superior court on January 26, 2006 (2006 sentencing order), following its order granting relief by writ of habeas relief (habeas relief order). He argues that, although the People appealed from the habeas relief order, they did not appeal the 2006 sentencing order. That order became final and binding when the time for taking an appeal expired. As a result, according to appellant, the superior court lacked jurisdiction to resentence him when it purported to do so on October 31, 2007.
We will begin our analysis with a brief recap of the procedural history of the case. In Cooper I, we affirmed appellant’s convictions in the 2000 case and remanded to correct a sentencing error. Before appellant was resentenced, he filed his petition for writ of habeas corpus, seeking relief in both the 1999 and 2000 cases. The superior court granted habeas relief in both cases (habeas relief order), vacating appellant’s conviction and sentence in the 1999 case and vacating his sentence in the 2000 case. The superior court then resentenced appellant to five years with no enhancement (2006 sentencing order) in accordance with the habeas relief order. The People appealed the grant of habeas relief and this court reversed in Cooper II. When the 2000 case came on for resentencing, appellant challenged the superior court’s jurisdiction, arguing that the People had forfeited their right to have appellant resentenced by appealing only from the habeas relief order and not the 2006 sentencing order. The trial court rejected the argument and sentenced appellant to serve the mandatory five-year prior conviction enhancement.
We agree with the People that our reversal in Cooper II of the superior court’s habeas relief order required that the case be remanded for resentencing. It is evident that the People intended their appeal from the habeas relief order to encompass the 2006 sentencing order. The notice of appeal from the habeas relief order identified the case numbers for both the 1999 case and the 2000 case, and the People’s briefs requested reversal and a remand for resentencing in the 2000 case.
In addition, by our reversal of the habeas court’s “judgment” in case No. A112947, we intended to both reverse the order granting relief and to vacate the sentence that was based on that order. In retrospect, we might have stated more specifically, in addition to “the judgment is reversed,” that “the sentencing order of January 26, 2006, is vacated and the case is remanded for further proceedings consistent with this opinion,” or words to that effect.
In any event, appellant’s argument fails for the separate reason that an unlawful sentence may be corrected at any time, even absent a formal objection or the filing of an appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045; In re Renfrow (2008) 164 Cal.App.4th 1251, 1256; People v. Purata (1996) 42 Cal.App.4th 489, 498.) This is true even though a more severe sentence may result. (People v. Serrato (1973) 9 Cal.3d 753, 763-764, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
In Cooper I, this court affirmed appellant’s 2000 convictions and remanded the case for resentencing because the superior court failed to impose the mandatory five-year sentence enhancement for a prior serious felony conviction under section 667, subdivision (a). In so doing, this court cited the rule that “ ‘sentences beyond the jurisdiction of the trial court... can be corrected any time when brought to the court’s attention....’ ” (Cooper I, supra, 2002 WL 368612 at p. *5, fn. 2, quoting People v. Purata, supra, 42 Cal.App.4th at p. 498.)
The remand we ordered in Cooper I was interrupted by appellant’s petition for writ of habeas corpus. Our reversal of the trial court’s grant of habeas relief returned the case to the status quo ante, i.e., pending the sentencing hearing we had ordered on remand in Cooper I. But even if the 2006 sentencing order survived our reversal of the habeas relief order, at that point it became an unauthorized sentence because the order failed to impose the mandatory five-year enhancement for the newly-revived prior serious felony conviction. Either way, the superior court was required to hold the sentencing hearing that we previously had ordered in Cooper I. The court was correct in concluding that it had jurisdiction to resentence appellant when it did so on October 31, 2007.
Appellant relies on People v. Ramirez (2008) 159 Cal.App.4th 1412 (Ramirez), a decision by our colleagues in Division Three of this court, in contending that the People forfeited their right to appeal. In Ramirez, the defendant pleaded guilty in 2003 to a drug offense; the trial court sentenced him to four years in prison, suspended execution of the sentence, and placed him on probation. In 2004, appellant admitted a probation violation in a plea agreement under which he was allowed to remain on probation and his previously imposed sentence was increased from four to five years. In 2006, the trial court found that the defendant had violated the terms of his probation, terminated probation, and ordered him to serve the five-year sentence. (Id. at p. 1417.) The defendant appealed from the 2006 order, claiming that the trial court lacked jurisdiction to increase his sentence in 2004. Division Three of this court determined that the defendant’s challenge to the 2004 order was not cognizable on appeal from the 2006 order. “In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.” (Id. at p. 1421.)
Notwithstanding his failure to appeal the 2004 order, the defendant argued that his appeal was timely under the rule that “ ‘[l]ack of jurisdiction may be raised at any time.’ [Citation.]” (Ramirez, supra, 159 Cal.App.4th at p. 1422.) The Ramirez court explained the two types of jurisdictional errors—fundamental lack of jurisdiction over the cause, and an unauthorized action in excess of the court’s jurisdiction. (Id. at pp. 1422-1423, citing People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661.) The Ramirez court concluded that the trial court had fundamental jurisdiction but acted in excess of its jurisdiction when it modified the defendant’s sentence. Consequently, the defendant forfeited his challenge to the sentence by failing to appeal from the 2004 order. In addition, by agreeing to the five-year sentence as part of a plea arrangement, the defendant was estopped to complain that the court exceeded its jurisdiction. (Id. at pp. 1423, 1426-1427.)
Appellant likens the circumstances here to those in Ramirez: “Needless to say, appellant herein maintains that under the same reasoning, the trail [sic] court’s January 26, 2006 actions resentencing appellant in light of the writ of habeas corpus striking the 1990 [sic] prior was, at most, an action in excess of jurisdiction rather than one whereby the court did not have fundamental jurisdiction.” Appellant contends that, just as Ramirez forfeited his challenge to the 2004 sentencing order, the People here forfeited their challenge to the January 26, 2006, sentencing order by failing to appeal from it.
Ramirez does not support appellant’s arguments. First, unlike Ramirez, the People’s appeal from the habeas relief order was timely. Second, unlike Ramirez, this case does not involve the distinction between a lack of fundamental jurisdiction and an action in excess of jurisdiction. Rather, this case involves the rule that an unauthorized sentence is subject to judicial correction at any time. (People v. Cunningham, supra, 25 Cal.4th at pp. 1044-1045.) Third and finally, the People opposed appellant’s petition for writ of habeas corpus and at no time agreed to the relief sought therein. Unlike Ramirez, the People were not estopped from seeking correction of the trial court’s original sentencing error.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.