Opinion
G050688
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO FRANCISCO GARCIA ROMERO, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lise Jacobsen and Stacy Tyler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 12NF3984) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part, reversed in part, and remanded with directions. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lise Jacobsen and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Roberto Francisco Garcia Romero appeals from the judgment entered after a jury found him guilty of committing two counts of engaging in continuous sexual abuse of a child under the age of 14 years, and three counts of committing a lewd and lascivious act on a child under 14 years of age. He contends one of his convictions for committing a lewd and lascivious act and one of his convictions for engaging in continuous sexual abuse must be reversed because the applicable statute of limitations had expired before the information was filed. He also argues that the trial court erred by imposing a sentence that violated, in part, the prohibition against ex post facto laws.
We affirm in part, reverse in part, and remand with directions. We address the counts at issue in this appeal in chronological order for clarity sake. We reverse the conviction for lewd and lascivious conduct charged in the information as count 3 because, as the Attorney General concedes in the respondent's brief, the applicable statute of limitations had expired. We otherwise affirm the judgment.
The original statute of limitations applicable to Romero's conviction for engaging in continuous sexual abuse charged in the information as count 2 had not expired before legislation extended it. The information was filed within the extended limitations period. Therefore, Romero's conviction on count 2 was not barred by the statute of limitations.
However, we remand for resentencing on count 2 because, as the Attorney General also concedes, the punishment imposed by the trial court was based on an amendment to Penal Code section 667.61, which increased the punishment associated with that crime, but became effective after the crime had been completed, in violation of the prohibition against ex post facto laws. (All further statutory references are to the Penal Code.)
We reject Romero's argument that he also must be resentenced on count 1, which alleged he had engaged in continuous sexual abuse of C.M. Uncontested and overwhelming evidence established Romero's abuse of C.M., in violation of section 288.5, continued after the effective date of the September 2006 amendment to section 667.61, making sentencing under that statute appropriate.
FACTS
In 1989, then nine-year-old M.R. met Romero. Romero was the boyfriend of M.R.'s mother, M.S., who worked as a live-in nanny.
In about 1993, when M.R. was 13 years old, she lived with M.S. and Romero. On one occasion, Romero touched M.R.'s inner thigh while he was teaching her how to drive a truck and, at another time, he put his arm around her and was flirtatious. On two other occasions, M.R. woke up in the middle of the night to find Romero kneeling or leaning over her and touching her upper thigh. When M.R. asked Romero what he was doing, he told her he was putting covers on her.
Romero was the best friend of the father of Y.A. and her older sister, E.M. In about 1998, when Y.A. was five years old, Romero and M.S. lived in the house where Y.A. lived with her parents and brothers. At that time, Romero started touching Y.A. "everywhere" under her clothes. Y.A. testified that about three times a week, he touched her vagina, breasts, and buttocks, and kissed her. Romero sometimes masturbated while he touched Y.A. Romero's molestation of Y.A. occurred for years—until she was 11 years old. She did not tell anyone what was happening because her parents loved Romero and he was a very close friend of the family.
In 2001, then six-year-old J.L. lived in an apartment in Anaheim; Romero was a neighbor. J.L. and her brothers spent time with Romero, helping him in his garage and going places with him. When J.L. was seven years old and in the second grade, Romero began touching her vagina and kissing her. This happened about 10 times. When J.L. was nine or 10 years old, Romero asked her if she wanted to drive home from an outing and had her sit on his lap; he groped her vagina while they drove. When J.L. was 11 or 12 years old, Romero asked her to go to his apartment to get a tool. He followed her into the apartment, locked the door behind them, and asked her to show him her buttocks and offered to show her his. After Romero pulled down her underwear, Romero and J.L. heard J.L.'s brother pounding on the apartment door. Romero instructed J.L. to go to the restroom and pull up her pants. She did not tell her family about what had happened to her until November or December 2012.
M.S. worked as the live-in nanny for C.M.'s family. C.M. is the oldest child of E.M., Y.A.'s sister. Romero lived with M.S. in the family's home.
In 2006 or 2007, when C.M. was in kindergarten, Romero started touching C.M.'s vaginal area over her clothes. One time, he touched C.M.'s buttocks under her clothes. He touched C.M. "[o]ver a hundred times" until 2011 or 2012 when C.M. was in the fourth grade.
In September or October 2012, when C.M. was in the fifth grade, she fell asleep downstairs in the living room after coming home from a school science trip. She awoke to find Romero touching her vaginal area over her clothes. She went to E.M.'s bedroom; C.M. was crying and scared. E.M. sent C.M. to her bedroom, thinking C.M. was scared because she had "watched scary movies or something." When E.M. checked on C.M. about 20 or 30 minutes later, she found her still crying. C.M. told E.M. that Romero had touched her.
PROCEDURAL HISTORY
In June 2013, Romero was charged in an information with the following offenses: (1) "[o]n or about and between January 28, 2005 and June 30, 2010," engaging in continuous sexual abuse of a child under the age of 14 years (later identified as C.M.) in violation of section 288.5, subdivision (a) (count 1); (2) "[o]n or about and between December 11, 1998 and December 11, 2004," engaging in continuous sexual abuse of a child under the age of 14 years (later identified as Y.A.) in violation of section 288.5, subdivision (a) (count 2); (3) "[o]n or about and between April 12, 1993 and April 11, 1994," committing a lewd and lascivious act upon a child under 14 years of age (later identified as M.R.) in violation of section 288, subdivision (a) (count 3); (4) "[o]n or about and between September 14, 2002 and September 13, 2009," committing a lewd and lascivious act upon a child under 14 years of age (later identified as J.L.) in violation of section 288, subdivision (a) (count 4); and (5) "[o]n or about and between September 14, 2002 and September 13, 2009," committing a lewd and lascivious act upon a child under the age of 14 years (later identified as J.L.) in violation of section 288, subdivision (a) (count 5).
As to counts 1, 2, 4, and 5, the information further alleged, pursuant to sections 667.61, subdivisions (b) and (e)(5), that Romero committed an offense specified in section 667.61, subdivision (c) against more than one victim. The information further alleged, as to all five counts, that, pursuant to section 1203.066, subdivision (a)(7), Romero committed the offenses against more than one victim.
The jury found Romero guilty on all counts and found the enhancement allegations true. The trial court imposed a determinate prison sentence of six years plus an indeterminate prison sentence of 45 years to life, with the possibility of parole, by imposing a 15-year-to-life sentence, with the possibility of parole, on count 1; a consecutive term of 15 years to life, with the possibility of parole, on count 2; a consecutive term of six years on count 3; a consecutive term of 15 years to life, with the possibility of parole, on count 4; and a term of 15 years to life on count 5, to be served concurrently with the sentence imposed on count 1. Romero appealed.
DISCUSSION
I.
ROMERO'S CONVICTION ON COUNT 3 MUST BE REVERSED BECAUSE
THE STATUTE OF LIMITATIONS HAD EXPIRED WHEN THE
INFORMATION WAS FILED.
Romero argues his conviction on count 3 must be reversed because the statute of limitations had expired at the time the information was filed. Although Romero first raises his statute of limitations argument on appeal, his argument is not forfeited. The California Supreme Court has held, "if the charging document indicates on its face that the charge is untimely, absent an express waiver, a defendant convicted of that charge may raise the statute of limitations at any time." (People v. Williams (1999) 21 Cal.4th 335, 338.)
Prior to 2001, the statute of limitations period for violations of section 288, subdivision (a) was six years. (Former § 800; People v. Simmons (2012) 210 Cal.App.4th 778, 787; People v. Smith (2011) 198 Cal.App.4th 415, 424.) On January 1, 2001, new legislation extended the statute of limitations for felonies enumerated in section 290, including violations of section 288, to 10 years. (Former § 803, subd. (h), as enacted by Stats. 2000, ch. 235, § 1, pp. 2338, 2342; People v. Simmons, supra, at p. 788.) Former section 803, subdivision (h)(1) provided in relevant part: "Notwithstanding the limitation of time described in Section 800, the limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001, or the offense is committed on or after January 1, 2001, shall be 10 years from the commission of the offense." (Italics added.)
Section 803 underwent multiple changes in subsequent years, but the 10-year statute of limitations applicable to section 288, subdivision (a) remained in effect at all times relevant to this case. (§ 803, former subd. (h)(2), as amended by Stats. 2000, ch. 235, § 1, pp. 2338-2342, renumbered as § 803, former subd. (i)(2), as amended by Stats. 2001, ch. 235, § 1, pp. 2121-2126, renumbered as former § 801.1, added by Stats. 2004, ch. 368, § 1, p. 3470; see In re White (2008) 163 Cal.App.4th 1576, 1580-1581.) Beginning January 1, 2006, by operation of former section 801.1, subdivision (a), the prosecution of certain sex offenses, including section 288 violations, could be commenced "any time prior to the victim's 28th birthday" if the crime was "alleged to have been committed when the victim was under the age of 18 years." (Stats. 2005, ch. 479, § 2; see People v. Simmons, supra, 210 Cal.App.4th at p. 787.) A more recent amendment to section 801.1 allowed the prosecution of such crimes, if alleged to have been committed when the victim was under 18 years of age, to be commenced any time prior to the victim's 40th birthday. (§ 801.1, subd. (a); Stats. 2014, ch. 921, § 1.)
Here, as to count 3, the information alleged, "[o]n or about and between April 12, 1993 and April 11, 1994," Romero committed a lewd and lascivious act upon a child under 14 years of age (M.R.), in violation of section 288, subdivision (a). The then applicable six-year statute of limitations on count 3, which was based on alleged conduct that occurred no later than April 11, 1994, expired in 2000—well before the information was filed in 2013. That statute of limitations also expired before subsequent legislation was enacted extending the statute of limitations for violations of section 288.
Section 804 provides: "Except as otherwise provided in this chapter, for the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs: [¶] (a) An indictment or information is filed. [¶] (b) A complaint is filed charging a misdemeanor or infraction. [¶] (c) The defendant is arraigned on a complaint that charges the defendant with a felony. [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint."
In the respondent's brief, the Attorney General states: "The Information was filed June 25, 2013. No bench warrant issued anytime before 2012 because [Romero]'s crimes did not come to light until the end of that year, when C[.M.] first came forward; for the same reason, the case could not have been certified to the superior court before 2012. Therefore, by the time prosecution of [Romero] for count 3 commenced, it was barred by the statute of limitation."
In the respondent's brief, the Attorney General states: "[Romero] contends prosecution of the crime charged in count 3, a violation of section 288, subdivision (a), against M[.]R. sometime between April 12, 1993, and April 11, 1994, was barred by the statute of limitation. . . . [Romero] is correct. The limitations period had run by the time prosecution commenced." The Attorney General further states, "this court must reverse the conviction on count 3 and strike the corresponding six-year prison term."
We agree with Romero and the Attorney General and conclude count 3 must be reversed.
II.
THE APPLICABLE STATUTE OF LIMITATIONS ON COUNT 2 HAD NOT
EXPIRED BY THE TIME THE INFORMATION WAS FILED.
In his opening brief, Romero argues that his conviction on count 2 must be reversed because the statute of limitations had expired. As to count 2, the information alleged, "[o]n or about and between December 11, 1998 and December 11, 2004," Romero engaged in continuous sexual abuse of a child under the age of 14 years (later identified as Y.A.), in violation of section 288.5, subdivision (a).
Before 2001, violations of section 288.5 were subject to a six-year limitations period. (See former § 800.) In 2000, the Legislature enacted subdivision (h) of section 803, which provided that any crime enumerated in the then current version of section 290, subdivision (a)(2)(A), for which the statute of limitations period had not yet expired as of January 1, 2001, would be 10 years from the commission of the offense. (Former § 803, subd. (h)(1), added by Stats. 2000, ch. 235, § 1.) Former section 290, subdivision (a)(2)(A) included violations of section 288.5 within its scope. (Stats. 2000, ch. 649, § 2.5.)
At the time of the 2000 legislation, the six-year statute of limitations on count 2 had not yet run. Therefore, a new statute of limitations of 10 years then applied to the crime charged as count 2, which would not have expired until December 2008.
Before that new limitations period had run, however, the statute of limitations was again extended, this time by legislation effective January 1, 2006, to allow the commencement of prosecution for, inter alia, violations of section 288.5 any time before the victim's 28th birthday as long as the limitations period had not yet expired. (People v. Simmons, supra, 210 Cal.App.4th at p. 787.) Y.A. was born in 1993 and will not be 28 years old until 2021. Therefore, the filing of the information in 2013, charging Romero in count 2 with a violation of section 288.5 against Y.A., was within the applicable statute of limitations period.
In his reply brief, Romero "agrees that it appears the statute of limitations in section 801.1 was extended before the expiration of the statute of limitations" and abandons his argument in his opening brief that count 2 was barred by the statute of limitations.
III.
BECAUSE ROMERO WAS SENTENCED ON COUNT 2 BASED ON APPLICATION OF THE
"ONE STRIKE" LAW THAT WAS NOT IN EFFECT AT THE TIME THE CRIME WAS
COMMITTED, WE REMAND COUNT 2 TO THE TRIAL COURT FOR RESENTENCING.
In their respective appellate briefs, Romero and the Attorney General agree that the "One Strike" law sentence under section 667.61, imposed for continuous sexual abuse in violation of section 288.5, as charged in count 2, violates the ex post facto clause of the United States and California Constitutions. For the reasons we explain, we agree Romero's sentence on count 2 was in violation of the prohibition against ex post facto laws, and remand for resentencing.
Both the United States Constitution and the California Constitution proscribe ex post facto laws. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) Under both Constitutions, "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43; see People v. Grant (1999) 20 Cal.4th 150, 158.) We interpret the California Constitution's ex post facto clause coextensively with its federal counterpart. (People v. Snook (1997) 16 Cal.4th 1210, 1220.)
California's One Strike law, codified at section 667.61, provides for indeterminate life sentences for certain sex offenses committed under specified aggravating circumstances. The One Strike law was enacted in 1994, but was not made applicable to violations of section 288.5 until it was amended in September 2006. (Stats. 2006, ch. 337, § 33, p. 2639.) Before that amendment, violations of section 288.5 were punished by determinate sentences of six, 12, or 16 years. (§ 288.5, subd. (a).) Section 667.61 now provides, inter alia, that a person convicted of continuous sexual abuse of a child in violation of section 288.5, "under one of the circumstances specified in subdivision (e)(4) shall be punished by imprisonment in the state prison for 15 years to life." (§ 667.61, subd. (b)(9).) Subdivision (e)(4) of section 667.61 includes the circumstance, "[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim."
Here, the trial court imposed an indeterminate 15-year-to-life sentence on count 2 pursuant to the One Strike law although the crime against Y.A. was completed in 2004, and before the amendment to section 667.61. Application of the One Strike law in sentencing Romero on count 2 retroactively increased the punishment associated with his crime, in violation of the prohibition against ex post facto laws.
In the respondent's brief, the Attorney General agrees count 2 should be remanded for resentencing, stating: "To sentence [Romero] under section 667.61, subdivision (b), would therefore impose a harsher punishment than the law in effect at the time [Romero] committed his crimes. Accordingly, retroactive application of section 667.61 to count 2 violates the ex post facto clauses of the state and federal Constitutions. This court should vacate [Romero]'s sentence on count 2, and remand for resentencing according to the law applicable at the time [Romero] committed the crimes."
We direct the trial court on remand to resentence Romero on count 2.
IV.
WE REJECT ROMERO'S ARGUMENT THAT HIS SENTENCE ON COUNT 1
VIOLATES THE PROHIBITION ON EX POST FACTO LAWS.
As to count 1, the information alleged Romero engaged in continuous sexual abuse of C.M. in violation of section 288.5, subdivision (a), "[o]n or about and between January 28, 2005 and June 30, 2010." Romero argues the indeterminate sentence of 15 years to life under the One Strike law imposed for count 1 must be reversed because it cannot be determined whether the jury relied on acts occurring before the amendment of that law in September 2006.
Section 288.5 provides in part: "(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. [¶] (b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."
The California Supreme Court addressed a similar issue in People v. Grant, supra, 20 Cal.4th at page 153. The court stated: "Penal Code section 288.5 provides that any person who resides with or has recurring access to a child under the age of fourteen, and who molests that child at least three times during a period of not less than three months, is guilty of 'continuous sexual abuse,' a felony. When, as here, the sexual abuse begins before, but continues after, section 288.5's effective date, does the abusive conduct fall within the statutory language? If so, can a conviction be affirmed under the statute without violating provisions in the state and federal Constitutions prohibiting ex post facto laws? The answer to each of these questions is 'yes.'" (Ibid., fn. omitted.)
The Supreme Court further stated: "Here, defendant was convicted of continuous sexual abuse, as defined in section 288.5, after the court instructed the jury to return a verdict of guilty only if it found that one of the required minimum of three acts of molestation occurred after section 288.5's effective date. In other words, defendant could be convicted only if the course of conduct constituting the offense of continuous sexual abuse was completed after the new law became effective. Because the last act necessary to trigger application of section 288.5 was an act of molestation that defendant committed after section 288.5's effective date, defendant's conviction was not a retroactive application of section 288.5 and therefore not a violation of the statutory prohibition against retroactive application of the Penal Code." (People v. Grant, supra, 20 Cal.4th at pp. 157-158.)
The Supreme Court concluded: "In this case, defendant has not cited a single decision holding that the ex post facto clause of the federal Constitution prohibits a defendant's conviction for a continuing offense that begins before and continues after a law's effective date. Moreover, as set forth above, all of the federal and state courts that have considered the issue have held to the contrary. We find the reasoning of those courts persuasive. [¶] As we noted earlier, the primary purpose of the ex post facto clauses in the federal and state Constitutions is to ensure 'that legislative Acts give fair warning of their effect . . . .' [Citation.] Here, section 288.5 gave 'fair warning' to those engaged in the sexual abuse of a child before the statute's enactment that they would be punished under the new law if they continued the sexual abuse after section 288.5 took effect. Those who engaged in child molestation before the effective date of section 288.5, but not thereafter, are not subject to prosecution for continuing sexual abuse. But those who, like defendant, chose to continue such conduct after the effective date of section 288.5 were on notice that they would be subject to prosecution under that section. [¶] For these reasons, we conclude that defendant's conviction for continuing sexual abuse of a child did not violate the provisions of the state and federal Constitutions against ex post facto laws." (People v. Grant, supra, 20 Cal.4th at pp. 161-162.)
It logically follows from the People v. Grant decision and analysis that a defendant may be sentenced under a statutory amendment increasing the punishment associated with a crime based on conduct that occurred before and continued after the amendment's effective date, without violating provisions in the state and federal Constitutions prohibiting ex post fact laws. Our case, however, is distinguishable from People v. Grant in that, here, the jury was not asked to make a finding that at least one of the required minimum of three acts of molestation under section 288.5 occurred after section 667.61 was amended to provide for an indeterminate sentence for certain violations of section 288.5, effective September 2006.
The United States Supreme Court has held that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." (Alleyene v. United States (2013) 570 U.S. ___, ___ [133 S.Ct. 2151, 2155].) By imposing a One Strike sentence for a violation of section 288.5, based on a continuous course of conduct that began before section 667.61 was amended, the trial court assumed a fact not found true by a jury beyond a reasonable doubt—that the crime had not been completed until after that amendment took effect.
The failure to instruct on an element of an offense is harmless if the prosecution proves beyond a reasonable doubt that no substantial evidence supports a contrary finding on the omitted element. (People v. Mil (2012) 53 Cal.4th 400, 417-419.) In People v. Mil, the California Supreme Court stated that in the context of such instructional error, "Neder[ v. United States (1999) 527 U.S. 1] instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.' [Citations.] Because we find that defendant contested whether he acted with reckless indifference to human life and that the record supports a reasonable doubt as to that element, we reverse the burglary and robbery special circumstances." (Id. at p. 417.)
Here, C.M. testified that she had just finished the seventh grade and was 13 years old at the time of trial in June 2014. She testified that Romero began molesting her when she was in kindergarten, which would have been in the 2006-2007 timeframe. The amendment to section 667.61, making certain violations of section 288.5 subject to indeterminate sentencing, took effect in September 2006.
Romero argues that evidence was presented at trial that C.M. told a Child Abuse Services Team interviewer that the touching began when she was in preschool, although, at trial, C.M. confirmed the touching started in kindergarten. Regardless of whether the molestation began when C.M. was in preschool or kindergarten, C.M.'s unqualified testimony, which was uncontested by Romero, was that the touching continued until she was in fourth grade, which would have been in the 2010-2011 timeframe. She further testified that the last occasion of molestation occurred in October 2012 after she had returned home from a school science trip and awoke to find Romero touching her. E.M. testified that almost immediately after the October 2012 touching incident, C.M. told her that Romero had touched her. Romero does not contest the timing of the acts of molestation and no evidence suggests he completed the crime of engaging in continuous sexual abuse of C.M. before September 2006.
We conclude beyond a reasonable doubt that the evidence showing Romero molested C.M. after September 2006 "'was uncontested and supported by overwhelming evidence.'" (People v. Mil, supra, 53 Cal.4th at p. 417.) We therefore reject Romero's argument that we must remand count 1 to the trial court for resentencing.
Our analysis is consistent with the appellate court's decision in People v. Valenti (2016) 243 Cal.App.4th 1140, 1175-1177, in which the court analyzed, inter alia, the imposition of a One Strike sentence for a violation of section 288.5 under similar circumstances as those presented in this case. The appellate court held the "defendant did not present substantial evidence to support a contrary finding on the omitted element—i.e., that the abuse ended before the 2006 amendment to the One Strike law. Because the People have 'prove[n] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained' [citation], we affirm the One Strike sentence." (People v. Valenti, supra, at p. 1177.)
V.
RESPONSE TO CONCURRING AND DISSENTING OPINION
The disposition of the majority opinion mirrors the disposition requested by the Attorney General that we remand for resentencing specifically as to count 2. (See respondent's brief, p. 15 ["This court should vacate appellant's sentence on count 2, and remand for resentencing according to the law applicable at the time appellant committed the crimes"]; id. at p. 20 ["For the foregoing reasons, respondent respectfully requests this court reverse the conviction on count 3 and strike the six-year term imposed for that count; and vacate the 15-year-to-life term imposed on count 2, and remand the matter to the trial court so that the court may impose a term under the law that existed at the time the crime was committed. In all other respects, respondent respectfully requests this court affirm the judgment."].) We do not believe we should grant relief greater than that which the Attorney General requested in her brief. The Attorney General does not ask for resentencing in the trial court under counts 4 or 5 (neither of which is at issue in this appeal) and our disposition does not address them. Our disposition necessarily specifies that on remand, the trial court must resentence Romero on count 2 to be clear that we have rejected Romero's claim that he is also entitled to resentencing on count 1.
Romero was 56 years old at the time of sentencing in September 2014. We affirm, inter alia, his 15-year-to-life prison sentence on count 1 and his consecutive prison term sentence of 15 years to life on count 4. On remand, the trial court will resentence Romero on count 2, pursuant to the applicable law, to a determinate sentence of six, 12, or 16 years as discussed in part III of the Discussion section ante. Therefore, as a practical matter, if the trial court were to resentence Romero on count 2 to the minimum prison sentence of six years, taking into account the custody credits he has accrued, Romero would be close to 90 years old before first becoming eligible for parole. We believe the Attorney General took this fact into account in fashioning the relief she requested.
Finally, the concurring and dissenting opinion states that Romero requests "'that his case be remanded for full resentencing.'" (Conc. & dis. opn, ante, at p. 2.) Romero's request in context is that he seeks resentencing not only on count 2, but also on count 1. We reject Romero's argument that his indeterminate 15-year-to-life prison sentence on count 1 under the One Strike law was in error. We do not read Romero's reference to full resentencing as a request that the trial court alter his sentences on counts 4 and 5, much less change his 15-year-to-life sentence on count 5 from a concurrent sentence to a consecutive one.
DISPOSITION
The judgment as to count 3 is reversed. The judgment is otherwise affirmed and the matter is remanded for resentencing on count 2.
FYBEL, J. I CONCUR: O'LEARY, P. J. Moore, J., Concurring and Dissenting.
I concur with my colleagues in the majority that count three should be reversed. I also concur with my colleagues in the majority that Romero was improperly sentenced as to count two.
However, I respectfully dissent as to only three words in the majority opinion. Instead of remanding the matter "for resentencing on count [two]," I would simply remand the matter "for resentencing."
A defendant who obtains a reversal on one count can still be sentenced to the same aggregate prison term upon resentencing for the other counts, but not a greater aggregate sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259 (Burbine) ["upon remand for sentencing after the reversal of one or more subordinate counts . . . , the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed"].) The California Supreme Court alluded to this principle when it directed an appellate court to remand a matter to a trial court for a full resentencing: "Although the Court of Appeal's prior remand order was for resentencing 'on the modified convictions only,' we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances." (People v. Navarro (2007) 40 Cal.4th 668, 681 (Navarro), citing Burbine, supra, 205 Cal.App.3d at p. 1259.)
"When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme. [Citation.] . . . The trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal. . . ." (People v. Hill (1986) 185 Cal.App.3d 831, 834, italics added (Hill).)
Here, the Attorney General argued that Romero should be resentenced as to count two. And the majority and I agree that Romero was, in fact, improperly sentenced as to count two. But presumably the Attorney General was well aware of the broad scope of a trial court's sentencing discretion on remand when an individual component of an aggregate sentence is reversed on appeal. Indeed, Romero cited Burbine and Navarro and specifically requested "that his case be remanded for a full resentencing."
As it stands, the trial court is restricted from exercising its sentencing discretion on remand in light of the changed circumstances (resentencing as to count two and reversal of count three). As a result, the trial court will be unable to "achieve its original and presumably unchanged goal." (Hill, supra, 185 Cal.App.3d at p. 834.)