Opinion
H041871
10-21-2016
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ANGEL ROMERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC789592)
In 2011, the jury found defendant Jeffrey Angel Romero guilty of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) - count one) and felony false imprisonment (§§ 236, 237 - count two). The jury also found that defendant had used a firearm as to both counts. (§ 12022.53, subd. (b) - count one; § 12022.5, subd. (a) - count two.) Defendant appealed, and this court reversed the judgment due to an unauthorized sentence. Following his resentencing, defendant has again appealed. He contends that the trial court's imposition of a longer sentence on remand violated double jeopardy principles. We affirm.
All further statutory references are to the Penal Code.
I. Statement of Facts
In June 2007, defendant robbed the cashier of a gas station at gunpoint. After defendant received the money, he pointed the handgun at the cashier and a man who was restocking the display cases and ordered them to get on the floor.
II. Procedural Background
This court has taken judicial notice of the record in defendant's prior appeal in case No. H037094.
In June 2011, defendant's original sentencing hearing was held. The trial court denied probation and ordered defendant's terms in counts one and two to run consecutive to his 13-year term in connection with a Sonoma County conviction. The trial court sentenced defendant to one-third of the three-year midterm on count one (one year), plus one-third of the 10-year term for the firearm enhancement (three years, four months), and one-third of the two-year midterm on count two (eight months). The trial court stayed the term for the firearm enhancement as to count two. The aggregate term of imprisonment, including his 13-year sentence in Sonoma County, was 18 years.
Defendant appealed. In June 2013, this court reversed the judgment due to sentencing error. (People v. Romero (June 14, 2013, H037094 [nonpub. opn.].) We concluded that defendant was entitled to presentence custody credits and that the trial court erred in staying the term for the firearm enhancement on count two. This court stated: "Since the stay of the firearm enhancement on count two constitutes an unlawful sentence, the matter must be remanded for the trial court to exercise its discretion to either impose or strike the enhancement." (People v. Romero, supra, H037094.) However, section 12022.5, subdivision (c) bars striking an enhancement under that section.
Section 12022.5, subdivision (c) states: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." --------
In January 2015, the resentencing hearing was held. The prosecutor, defense counsel, and the trial court agreed that the firearm enhancement on count two could not be stricken. Defense counsel argued that double jeopardy principles required that the trial court not impose a greater sentence on remand. The trial court stated its intended ruling: "It appears that if the substantive offense -- and that's the false imprisonment pursuant to Penal Code section 236-237 -- is imposed consecutively, the enhancement should also be imposed consecutively. If it's imposed concurrently, then the substantive offense is imposed concurrently, so can the enhancement." The trial court noted that a concurrent sentence would be four years and four months and a consecutive sentence would be six years. The trial court also reasoned that "[t]o impose the term suggested by [defense counsel], then puts the court in a position of ignoring the fact that there was a second victim who was involved in this case, the vendor, who was at the business establishment that was robbed by Mr. Romero; the second victim, who underwent the same terror that the proprietor of the business underwent. In essence, it seems to the court it's not right, but that . . . victimization . . . of the vendor ought to be acknowledged, and there ought to be a consequence for that offense." The trial court then denied probation, reimposed the sentence (five years) that it had previously imposed, and added one-third the lower term (one year) on the firearm enhancement on count two for an aggregate term of 19 years.
III. Discussion
Defendant contends that the principles of double jeopardy under the California Constitution prohibited the trial court from resentencing him to a term greater than that originally imposed.
"Persons may not twice be put in jeopardy for the same offense . . . ." (Cal. Const., art. I, § 15.) Thus, "[w]hen a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes imposition of more severe punishment on resentencing." (People v. Hanson (2000) 23 Cal.4th 355, 357.) However, there is an exception to this rule when there is an unauthorized sentence. (People v. Serrato (1973) 9 Cal.3d 753, 764, overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) "Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (Serrato, at p. 764.)
Relying on People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa) and People v. Torres (2008) 163 Cal.App.4th 1420 (Torres), defendant argues that the Serrato exception does not apply in the present case. We disagree.
In Mustafaa, supra, 22 Cal.App.4th 1305, the trial court imposed concurrent terms for two robbery convictions and two consecutive terms for the gun use enhancements attached to the two convictions. (Id. at p. 1309.) The appellate court held that the sentence violated section 12022.5, subdivision (a) and remanded for resentencing. (Mustafaa, at pp. 1310-1311.) It also concluded that "the rule against double jeopardy applies because the court imposed a legal aggregate sentence, only fashioning it in an unauthorized manner. The court's error in separating the convictions from their attendant enhancements, though unauthorized by law, does not make the total sentence illegal. On remand the court may not impose a total sentence more severe than the sentence originally imposed." (Id. at pp. 1311-1312.)
In Torres, the jury found the defendant guilty of attempting to dissuade a witness (count one) and criminal threats (count three) and found gang enhancement allegations true as to both counts. (Torres, supra, 163 Cal.App.4th at p. 1424.) The sentence for dissuading a witness increased from a triad of 16 months, two years, or three years, to seven years to life with the gang enhancement and the gang enhancement added five years to the same triad for criminal threats. (Ibid.) The trial court sentenced the defendant to the "upper" term of seven years for criminal threats, imposed and stayed the midterm for dissuading a witness, and struck both gang enhancement findings. (Id. at p. 1427.) After the Department of Corrections and Rehabilitation informed the trial court that the upper term for criminal threats was three years, not seven years, the trial court resentenced the defendant to seven years to life on the dissuading a witness count with an attached gang enhancement. (Id. at pp. 1427-1428.)
At issue in Torres was whether double jeopardy principles and former section 1170, subdivision (d) barred his greater sentence. The Torres court reasoned: "Here, the aggregate sentence of seven years imposed on defendant at the original sentencing hearing could have been lawfully achieved by imposing the mid term of two years on count three plus the consecutive enhancement term of five years; it did not fall below the mandatory minimum sentence and was therefore not a legally unauthorized lenient sentence. The one unauthorized component of the sentence originally imposed by the court was not lenient—it was in fact more severe than that authorized (the correct upper term for count 3 being three years rather than seven). Principles of double jeopardy as well as the mandate of section 1170, subdivision (d) require that under these circumstances the trial court may not impose a sentence longer than originally imposed. Thus, the trial court erred in imposing a sentence of seven years to life after it recalled defendant's sentence of seven years in prison. The case must be remanded. On remand, the trial court may not impose a total sentence greater than seven years in prison." (Torres, supra, 163 Cal.App.4th at pp. 1432-1433, italics added.)
Mustafaa, supra, 22 Cal.App.4th 1305 and Torres, supra, 163 Cal.App.4th 1420 do not apply to the present case. In both of those cases, after the trial court imposed a legal aggregate sentence, the protection against double jeopardy attached and prohibited the court from resentencing the defendant to a greater sentence. Here, the trial court did not impose a legal aggregate sentence at the original sentencing hearing, because it could not impose a five-year sentence. Thus, the trial court was not barred from imposing a greater sentence than the original unauthorized sentence.
We next consider amendments to the abstract of judgment. In defendant's prior appeal, this court directed the trial court to make changes in the abstract of judgment. (People v. Romero, supra, H037094.) The trial court directed staff to make these changes, but not all of them were made. Defendant contends, and the Attorney General agrees, that the abstract of judgment should be amended.
IV. Disposition
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment as follows: (1) check the box stating "Amended Abstract"; (2) put an X in the "INCOMPLETE SENTENCE (REFER TO Item 5)" column in Item 1 on the Count A1 line; (3) insert "Sonoma" in the "COUNTY" column in Item 5 as well as "SCR524357" in the "CASE NUMBER" column; (4) specify that this amended abstract of judgment supersedes all abstracts previously issued in Sonoma County case No. SCR524357 and Santa Clara County case No. CC789592 in Item 13; and (5) check the box for "at resentencing per decision on appeal" in Item 15. The trial court shall also forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.