Opinion
E032220.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. CLEVELAND LINDLEY, Defendant and Appellant.
Michelle Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Randall D. Einhorn, Deputy Attorney General, for Plaintiff and Respondent.
In December 1996, defendant was sentenced on his convictions of three counts of robbery (Pen. Code, § 211) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)), all with accompanying 10-year firearm-use enhancements (§ 12022.5, subd. (a)(1).) Defendant was also found to have suffered seven prior strikes. (§§ 1170.12, 667, subds. (b)-(i).) The trial court believed it had no discretion to impose concurrent sentences under the "Three Strikes" law (see § 667, subd. (c)(6)), so it imposed consecutive three-strike terms on each of the four convictions and imposed the four 10-year firearm-use enhancements consecutively. The sentence totaled 140 years to life.
All further statutory references will be to the Penal Code.
Defendant appealed, and we directed the trial court to exercise its discretion respecting concurrent sentencing. (See People v. Lindley (Feb. 18, 1999, E019692) [nonpub. opn.].) The trial court imposed the assault term concurrently with the three robbery terms, but imposed the four firearm-use enhancements consecutively for a total sentence of 115 years to life.
Defendant again appealed, and we directed the trial court to calculate custody credits, sentence one of the firearm-use enhancements concurrently, and exercise its discretion again respecting concurrent sentencing using California Rules of Court, rule 4.425. (See People v. Lindley (Aug. 28, 2001, E027801) [nonpub. opn.].) On remand the trial court sentenced the three-strike terms on the three robberies consecutively, the three-strike term on the assault concurrently, the three firearm-use enhancements on the robberies consecutively and the firearm-use enhancement of the assault concurrently. Defendants sentence was reduced to a total of 105 years to life.
Defendant appeals a third time contending that the trial court should have exercised its discretion to strike some of defendants prior convictions and that his sentence is unconstitutionally cruel and unusual. We reject these contentions and affirm.
FACTS
On October 9, 1995, defendant held up three employees at a fast-food restaurant, assaulted a fourth with his gun, and terrorized several customers at the point of his gun. He wore a ski-type mask, black jeans, a brown or black jacket, brown or black gloves, and white Nikes. He carried a pillowcase and a small semiautomatic gun. Defendant walked up to a female employee talking on a telephone, pointed a gun at her, and told her to get off the telephone. Defendant then pointed his gun at a man, his wife, and their baby, and threatened to shoot them. Fortunately, the family left the restaurant unharmed. Defendant placed his gun an inch from the male shift managers head and told him to give him the money in the safe. Defendant had the female employee hold the pillowcase while the shift manager, the female employee, and a male employee put the money in the pillowcase.
Defendant then told the shift manager to open a smaller deposit box, but he did not have the key. Defendant said he would count to three and then shoot someone if the deposit box was not opened. Defendant pointed his gun at all three and a second male employee saying he was going to shoot them. Three of the victims told the defendant that only the manager had the key. Defendant then took the group of employees to the front of the restaurant and had two of the victims empty a cash register.
Defendant told the employees to go into the back of the restaurant, and they went into the back break room. Defendant left the restaurant, and the employees came out of the back room after a few minutes.
TRIAL COURT DISCRETION ON REMAND DID NOT EXTEND TO STRIKING
PRIORS
Defendant contends that the trial court erred in failing to exercise its discretion on remand to strike some of appellants prior convictions. We disagree.
An appellate court in a criminal case has the authority to "reverse, affirm, or modify a judgment or order appealed . . . and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances." (§ 1260.) Because of this flexible statutory power given to reviewing courts to control proceedings on remand, directions correcting a sentence do not necessarily entail a complete resentencing going beyond the reviewing courts express directions. (See People v. Buckhalter (2001) 26 Cal.4th 20, 35 [direction to exercise discretion on imposition of five enhancements does not vacate original sentence because court may decline to impose enhancements], quoting People v. Rodriguez (1998) 17 Cal.4th 253, 258, 949 P.2d 31 [direction to exercise discretion to strike prior conviction requires hearing at which defendant has right to appear, but the direction does not vacate the original sentence which remains in effect unless the trial court strikes a prior conviction].) Both Buckhalter and Rodriguez dealt with directions that did not require a change in the original sentence, while in this case one of the directions required a change in the sentence. Nevertheless, the decisions in both cases were explained on the more general level that the reviewing court has the authority to surgically remove the mistakes from a sentence without triggering a full resentencing.
Appellate courts in civil cases also have the authority to "affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had." (Code Civ. Proc., § 43.) In the civil arena numerous cases make clear the limited jurisdiction of a trial court following appellate instructions on remand. (See, e.g., Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701;Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982 ["any material variance from the directions is unauthorized and void," and the limited jurisdiction of the trial court to follow appellate court directions does "not leave open the option of reconsidering prior rulings . . . ."].) Thus, appellate courts in all cases have the authority to direct the trial court to do whatever may be necessary to serve justice, and trial courts have the responsibility to follow, and not exceed, the directions.
In the second appeal, we "remanded for resentencing in accordance with the principles set forth in this opinion." We came to three conclusions in that opinion. First, "the case must be remanded so that the trial court can calculate defendants custody credits." Second, "because the assault was sentenced concurrently, one of the firearm-use enhancements should have been sentenced concurrently as well." Third, "the trial court erred by relying primarily on section 654 when determining to impose consecutive or concurrent sentences" and "should be guided by the criteria set forth in California Rules of Court, rule 4.425." These three conclusions were the "principles" referenced in the disposition.
No issue was raised in any of the appeals in this case concerning the trial courts exercise of discretion not to strike any prior convictions, and this court did not direct the trial court to take any action respecting the prior convictions. Thus, the trial court correctly did not reconsider its prior decision not to strike any of defendants prior convictions.
Furthermore, even were we to have found that the trial court had discretion to strike one or more of the prior convictions, we would not reverse and direct the trial court to exercise its discretion respecting the prior convictions, because to do so would be pointless and unnecessary. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889-890 [declining to direct trial court to reconsider choices respecting consecutive or concurrent sentences when stated intention to impose sentences consecutively].) In this case the trial court has consistently imposed the maximum sentence possible and has already exercised its discretion in declining to strike any prior convictions. The only mandatory change was to run one firearm-use enhancement concurrently, reducing the length of the consecutive sentencing, which will not trigger an exercise of discretion by the trial court to further reduce the sentence.
CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that his sentence of 105 years to life is grossly disproportionate in violation of the state and federal Constitutions. We disagree.
A sentence violates the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921.) Likewise, the federal Constitution contains a narrow proportionality principle that prohibits sentences that are grossly disproportionate. (Ewing v. California (Mar. 5, 2003, No. 01-6978) ___ U.S. ___ .)
On December 15, 1989, defendant pleaded guilty to an armed robbery and an armed false imprisonment committed on May 30, 1989, and to a second armed robbery on June 18, 1989, all in San Bernardino County. The two robberies and one enhancement were sentenced consecutively and the false imprisonment and two enhancements concurrently for a total sentence of seven years. On May 28, 1991, defendant pleaded guilty to four armed robberies which occurred on May 13, June 10, 17, and 20, 1989, in Los Angeles County about the same time as the robberies in San Bernardino County; defendant was sentenced to seven years on the upper term for one robbery and a two-year armed enhancement with the other terms to run concurrently. Defendant was released on parole April 13 1995. He committed the crimes that are the subject of these appeals less than six months later on October 9, 1995.
The 105-year sentence is neither grossly disproportionate, nor so disproportionate that it shocks the conscience. The prosecuting attorney aptly concluded in his sentencing memorandum: "Little breath or time should be spent arguing that defendant qualifies for [the striking of any prior convictions]. At twenty-five, he has committed to a career [of] armed robbery and has now terrorized at least eleven victims at the point of a gun; it is now time for him to be disarmed at the point of the Three Strikes law."
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst J., and King J.