Opinion
D070168
05-19-2017
THE PEOPLE, Plaintiff and Respondent, v. RICKY VALENTINO RIVERA, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCD240753, SCD243176) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Ricky Valentino Rivera appeals a judgment entered following resentencing proceedings. He contends that based on our remittitur, the trial court lacked jurisdiction to resentence him to consecutive terms because his plea agreement was binding. We conclude the court did not lack jurisdiction and did not err in resentencing him; accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, a jury convicted Rivera of battery causing serious bodily injury (Pen. Code, § 243, subd. (d)), and found true he personally inflicted great bodily injury on the victim (§ 1192.7, subd. (c)(8)) in case No. SCD240753. The trial court found true allegations that Rivera had served two prior prison terms (§§ 667.5, subd. (b), 668) and suffered one prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) as well as two prior strike convictions (§§ 211, 245, subd. (b), 667, subds. (b)-(i), 1170.12, 668).
All further statutory references are to the Penal Code.
Shortly afterwards, Rivera pleaded guilty to assault with a firearm (§ 245, subd. (a)(2)) in case No. SCD243176. He also admitted the crime was a serious felony (§ 1192.7), that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), and that he suffered one prior strike conviction (§§ 667, subd. (b)-(i), 668, 1170.12). The plea agreement form stated: "[Eleven] year maximum sentence on this case. Court indicates concurrent [with] any sentence to be imposed in [case No.] 240753." The court sentenced Rivera to 30 years in prison as follows: 25 years to life plus five years in case No. SCD240753 and a concurrent term of 11 years in case No. SCD243176.
In a previous appeal, we consolidated case Nos. SCD240753 and SCD243176 (People v. Rivera (Nov. 9, 2015, D065375) [nonpub. opn.] (Rivera I)), and remanded the matter for resentencing based on an intervening California Supreme Court decision in People v. Vargas (2014) 59 Cal.4th 635 (Vargas), which required the trial court to grant Rivera's motion to strike one of his prior strikes brought under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Our disposition stated: "The matter is remanded for the superior court to strike one of [] Rivera's prior strikes and resentence him, consistent with the views expressed above, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed." (Rivera I, at p. 9.)
At the ensuing resentencing hearing, the court explained the context for its sentence in Rivera I. Specifically, after Rivera had been convicted of battery, which exposed him to 25 years to life plus seven years in case No. SCD240753, he would have been exposed to a consecutive 11-year sentence in case No. SCD243176, for a total 41-year prison term. However, the court rejected that lengthy term, indicating in a plea bargain discussion that it would instead sentence Rivera to a concurrent 11-year term. The court stated that if the Vargas case was in effect earlier, it would have sentenced Rivera differently. Moreover, if Rivera had withdrawn his plea, he would have been tried on case No. SCD243176, which would have become the principal-term case as it involved a shooting. If convicted, he would be exposed to an additional 10-year prison term.
The court had made the same point to Rivera in an earlier proceeding on remand: "I knew I was sentencing you to 25 years to life plus five, and, therefore, I was good with giving you the benefit of the bargain on [case No. SCD243176] by running that as a determinate sentence of 11 years concurrent. [¶] I would not have done that otherwise if I had struck a strike, which made the [case No. SCD240753] a sentence of four years instead of life. I would not have sentenced you concurrently on [case No. SCD243176]."
In resentencing Rivera, the court ruled: "These cases were—came into this court together and they left this court together. They left after the same sentencing hearing. [¶] Yes, there's different abstracts of judgment . . . . But these are two cases that were intertwined from the beginning and they are intertwined still so that the change in circumstances on the one results in the need to reevaluate the entirety of this—these cases at the time of the resentencing hearing." After Rivera declined the court's offer to withdraw his plea, the court departed from the plea bargain and sentenced him consecutively, reasoning that the two cases involve "different crimes, different locations, different victims." It struck two of Rivera's prior strikes. It sentenced Rivera to 11 years in case No. SCD243176, which it selected as the principal case then added a consecutive seven-year term in case No. SCD240753, for a total term of 18 years in state prison.
DISCUSSION
Rivera observes that although he filed notices of appeal in both case No. SCD243176 and No. SCD240753, and although we consolidated both appeals in Rivera I, he ultimately made no argument for reversal in No. SCD240753 and this court resolved the appeal without discussing that second case. He accordingly contends the trial court on remand lacked jurisdiction to disturb the 11-year concurrent sentence in the latter case.
When a case is remanded following an appellate decision, the scope of what may be decided by the trial court is circumscribed by the terms of the remand. " '[T]he order of the appellate court as stated in the remittitur, "is decisive of the character of the judgment to which the appellant is entitled." ' [Citation.] On remand, the lower court may act only within these express jurisdictional limits." (People v. Lewis (2004) 33 Cal.4th 214, 228.) Whether the trial court correctly interpreted our opinion is a question of law subject to independent review. (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.) Here, with both cases consolidated on appeal, we remanded "the matter" for resentencing. The question is whether, in light of all the relevant circumstances, "the matter" fairly included both cases or only the case (No. SCD243176) expressly discussed in the opinion.
Other cases have addressed similar issues. In In re Blessing (1982) 129 Cal.App.3d 1026 (Blessing), in which the defendant, pursuant to a negotiated plea, was sentenced to a total of 16 years four months on seven separate counts, including separate eight-month sentence enhancements for personal firearm use as to six of the counts. (Id. at pp. 1028-1029.) The California Supreme Court later disallowed punishment for firearm use on consecutive subordinate offenses such as the defendant's, and the Court of Appeal concluded it could not give effect to the enhancements, reasoning: " 'The state, in entering a plea bargain, generally contemplates a certain ultimate result; integral to its bargain is the defendant's vulnerability to a term of punishment . . . .' " (Id. at pp. 1030-1031.) But rather than striking the enhancements, the appellate court permitted the People to seek an order from the trial court permitting their withdrawal from the plea agreement. (Blessing, at pp. 1031-1032.)
Another court has similarly noted: "[W]e endorse the notion that trial courts are, and should be, afforded discretion by rule and statute to reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court. Moreover, to suggest otherwise would potentially encourage trial courts to take into account the likelihood of certain counts surviving appeal—a sentencing algorithm which might unnecessarily lead to longer original sentences." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.)
People v. Bond (1981) 115 Cal.App.3d 918 does not compel a different result. In that case, defendant appealed only one of two cases. (Id. at p. 920.) In contrast here, both cases were appealed and consolidated, raising the question whether the scope of the remand included both or only one of the cases.
We conclude our remittitur conferred jurisdiction on the court, and it followed our directions by striking Rivera's prior strikes under Romero, supra, 13 Cal.4th 497 and resentencing him in a manner that took into account the interrelated nature of the two cases, and the change in law brought about by Vargas, supra, 59 Cal.4th at page 635. Rivera received a lower aggregate term than before. Accordingly, we conclude the court did not err in resentencing Rivera.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.