Opinion
C081644
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. ZACKERY PRUNTY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F07981)
In March 2013, we affirmed the 32-year prison sentence imposed in this case against defendant Zackery Prunty for attempted voluntary manslaughter and assault with a firearm along with various sentence enhancements on both counts, including criminal street gang enhancements. (People v. Prunty (Mar. 26, 2013, C071065) [nonpub. opn.] at pp. 2-3 (Prunty I).) Thereafter, our Supreme Court granted review, found the evidence insufficient to support the criminal street gang enhancements, reversed as to defendant's sentence, and remanded the case to us for further proceedings. (People v. Prunty (2015) 62 Cal.4th 59, 68, 85.) On remand, we noted that the appropriate resolution of the case would be to modify defendant's sentence by striking both of the criminal street gang enhancements (10 years as to the manslaughter charge and one year and eight months as to the assault charge) and by lifting a stay the trial court had imposed on a three-year sentence for one of two great bodily injury enhancements on the manslaughter charge. (People v. Prunty (Nov. 12, 2015, C071065) [nonpub. opn.] at pp. 9-10 (Prunty II).) We specifically noted that in light of these modifications, "defendant's sentence will now be an aggregate of 23 years and four months in prison." (Id. at p. 10.) Part of that sentence was a consecutive three-year term for a great bodily injury enhancement on the assault charge. (Ibid.) No issue had ever been raised as to that aspect of defendant's sentence, either in the original briefing on defendant's appeal or in the briefing on remand from the Supreme Court.
Because the facts of defendant's offenses are not relevant to the issues raised on appeal, we omit any discussion of those facts.
We granted the parties' request to incorporate the record of case No. C071065 by reference on this appeal.
As our disposition of the case, we modified defendant's sentence by striking both of the criminal street gang enhancements and lifting the stay on the three-year sentence for the great bodily injury, affirmed the judgment as modified, and remanded the case to the trial court with the direction "to prepare an amended abstract of judgment and to forward that amended abstract to the Department of Corrections and Rehabilitation." (Prunty II, supra, at pp. 10-11.) Defendant did not petition for rehearing or review.
On remand -- despite the fact that we had already modified defendant's sentence, affirmed the judgment as modified, and remanded with a direction only to prepare and forward an amended abstract of judgment -- the trial court conducted a resentencing hearing. At that hearing, the prosecutor apparently raised the issue in chambers that the sentence for the great bodily injury enhancement on the assault charge should have been one year instead of three years. The trial court and defendant agreed. In addition, however, defendant urged the court, on grounds of equal protection and cruel and unusual punishment, to further reduce his sentence based on his performance in prison. The trial judge declined to do so, stating that she was "bound at this point, but even if I were not bound, honestly I think that the sentence that was imposed for the conduct that occurred at that time was the appropriate sentence." Thereafter, the court resentenced defendant consistent with the modification we made to defendant's sentence in Prunty II, except that the court sentenced defendant to one year instead of three years for the great bodily injury enhancement on the assault charge, for an aggregate term of 21 years and four months. Defendant timely appealed.
On appeal, defendant contends his sentence must be reversed because the trial court imposed sentence without understanding its discretion and because the sentence violates federal and state constitutional guarantees of due process and equal protection and constitutes cruel and unusual punishment. Defendant also contends the sentence for the firearm enhancement on the assault charge must be reduced to one year and four months because the court stated it intended to impose one-third the middle term.
In response, the People argue (among other things) "that . . . remand in this case was not meant to afford [defendant] a new sentencing hearing." Thus, according to the People, the trial court "correctly understood that it was 'bound at this point,' unable to 'do anything differently' " than we ordered in Prunty II.
In reply, defendant points out that the trial court did not, in fact, resentence him strictly in compliance with what we ordered in Prunty II because the trial court reduced the sentence for the great bodily injury enhancement on the assault charge from three years to one year. Thus, according to defendant, "[j]ust as the trial court imposed the sentence it considered statutorily proper [for the great bodily injury enhancement on the assault charge], it also ought to have reviewed the entire sentence to determine if the sentence was constitutionally proper."
Defendant is mistaken. It has long been settled that when an appellate court remands a matter to the trial court with specific directions, the trial court lacks jurisdiction to do anything but follow the appellate court's instructions. "When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) Here, we did not remand the case to the trial court for resentencing because we had already modified defendant's sentence ourselves and affirmed the sentence as modified. Our direction to the trial court was merely to prepare an amended abstract of judgment and forward the amended abstract to the Department of Corrections and Rehabilitation. Accordingly -- with the exception noted below -- the trial court had no power to do anything else, including no power to consider the constitutional claims defendant raised at the resentencing hearing and now renews on appeal.
In addition to his constitutional claims, defendant also argues on appeal that his sentence on the firearm enhancement on the assault charge should be reduced to one year and four months because that is one-third the middle term for a firearm enhancement under Penal Code section 12022.5, subdivision (a)(1), and in resentencing defendant the trial court stated that it intended to impose one-third the middle term for that enhancement. Because the trial court had no power to resentence defendant, however, defendant's argument is without merit.
As for the trial court's reduction of the sentence for the great bodily injury enhancement on the assault charge from three years to one year, that action, too, was beyond the trial court's power here, even though, as it turns out, the original three-year sentence for that enhancement was unauthorized. The great bodily injury enhancement allegation on the assault charge that the jury found true was made under Penal Code section 12022.7, which provides for "an additional and consecutive term of imprisonment in the state prison for three years." (Id., subd. (a).) However, because the sentence on the assault charge was subordinate and consecutive to the principal term on the manslaughter charge, the only lawful sentence for the enhancement on the assault charge was one-third of the usual term -- that is, one year instead of three.
"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." (Pen. Code, § 1170.1, subd. (a), italics added.)
While the three-year sentence for the great bodily injury enhancement on the assault charge was unauthorized, it still was not proper for the trial court to do anything here other than what we had directed the court to do, which was to "to prepare an amended abstract of judgment and to forward that amended abstract to the Department of Corrections and Rehabilitation." (Prunty II, supra, at p. 11.) "It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court . . . ." (People v. Benton (1979) 100 Cal.App.3d 92, 102.) A remand that specifically limited the trial court's jurisdiction to preparing an amended abstract of judgment and forwarding that amended abstract to the Department of Corrections and Rehabilitation was simply not the appropriate proceeding for the trial court to use to modify defendant's unauthorized sentence.
That being said, however, the propriety of defendant's sentence is properly before us on defendant's appeal from his resentencing, and while the trial court lacked the power to do what it did, the sentence the trial court imposed was the correct sentence. Accordingly, defendant has shown no basis for any relief on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Blease, J.