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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Jimmie Dell ROTH, Defendant and Appellant.

Cr. No. 11797.

Decided: July 20, 1981

Quin A. Denvir, State Public Defender, Elaine A. Alexander, Chief Asst. State Public Defender, and Carolyn Sutton, Panel Atty., under appointment by the Court of Appeal, San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske and Michael D. Wellington, Deputy Attys. Gen., for plaintiff and respondent.

The defendant appeals a resentencing after the trial court determined that the original sentence was erroneous in light of the subsequent decision in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.

The defendant was originally charged with 19 counts of robbery or attempted robbery, with attendant allegations of the use of a firearm or deadly weapon. He entered guilty pleas to five of the counts, admitting the enhancing allegations, in return for dismissal of the remaining 14 counts. As part of the plea bargain it was stipulated that the maximum prison term which could be imposed was 9 years, 8 months. The sentence, imposed on November 2, 1978, was imprisonment for 9 years, 8 months, upon the following computation:

In November of 1979, People v. Harvey, supra, determined that subordinate terms for robbery could not be enhanced as had been done by the trial court. In January 1980, the matter was brought to the attention of the sentencing judge by a letter written by the defendant, and a resentencing hearing was held on April 11, 1980. While both counsel and the court expressed doubt as to the specific authority for the resentencing, the court proceeded upon the basis of Penal Code section 1170, subdivision (d),1 and counsel for the defendant stipulated that the court had jurisdiction to proceed as if under section 1170, subdivision (d). Accordingly, the court reviewed the entire record and revised the whole sentence structure to reach the following computation:

On appeal, defendant's contention is that the court had no jurisdiction to resentence under section 1170, subdivision (d), but had power only to strike the offending portions of the sentence under its general power to correct errors. Had the court followed this course of action it would simply have deleted the 20 months imposed by way of enhancement on the subsidiary terms, thus reducing the sentence to 8 years. The defendant contends that in any event the court had no power in reconsidering its sentence to impose a “greater sentence” than initially pronounced, arguing that changing the disposition of Count 9 from concurrent to consecutive constitutes a “greater sentence.”

The defendant's initiation and participation in the resentencing procedure does not now preclude his appeal. If the court indeed lacked jurisdiction to impose the alternative sentence, the defendant is not subject to a bar of waiver, being entitled to raise the issue for the first time on appeal. (Griggs v. Superior Court (1976) 16 Cal.3d 341, 344, fn. 2, 128 Cal.Rptr. 223, 546 P.2d 727.)

Section 1170(d) provides for resentencing of a defendant “in the same manner as if he had not previously been sentenced” in two specific situations: (1) by recall by the sentencing judge within 120 days of the original sentence, or (2) at any time upon recommendation of the Director of Corrections or the Board of Prison Terms. Neither of these conditions had occurred in this case, and hence the sentencing judge's citation of section 1170, subdivision (d), as the authority for the hearing appears to have been mistaken. No reason is perceived, however, why the action taken by the trial court cannot be sustained if in fact it was authorized, even though the presumed basis therefor was in error.

Sentences in excess of a court's jurisdiction are properly reviewed by means of a writ of habeas corpus (see In re Sandel (1966) 64 Cal.2d 412, 417, 50 Cal.Rptr. 462, 412 P.2d 806) or other extraordinary relief (see People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 484, 148 Cal.Rptr. 698). In People v. Massengale (1970) 10 Cal.App.3d 689 at p. 693, 89 Cal.Rptr. 237, it was stated that an unauthorized sentence should be corrected by the trial court “whenever the mistake is appropriately brought to the attention of the court.” A hearing upon the letter request of the defendant, albeit informal, surely is an “appropriate” way to bring the mistake to the attention of the court. Notwithstanding lack of formal paperwork or pleadings, therefore, the court was empowered to review the sentence.

The defendant contends, however, that the court's review was limited to vacating the erroneous portion of the sentence, and that it was precluded in its “extraordinary” review from resentencing as if no prior sentence had been imposed. It is argued that to permit an increase in the term provided for count 9, by specifying that it is to run consecutively rather than concurrently with other counts, constitutes an impermissible expansion of a penalty which violates the double jeopardy clauses of the California and United States Constitutions.

The double jeopardy bar to increase of a sentence has been applied in California to sentences resulting from a retrial after reversal on appeal. In People v. Henderson (1963) 60 Cal.2d 482, 495, 35 Cal.Rptr. 77, 386 P.2d 677, the defendant's first trial for murder had resulted in a sentence of life imprisonment, which was reversed on appeal. Upon retrial the defendant was again convicted. The death sentence then imposed was reversed on the ground of violation of Article 1, section 13, of the California Constitution, providing that “No person shall be twice put in jeopardy for the same offense; ․” In this and subsequent cases an argument based upon policy considerations also seems to have been persuasive: a defendant should not be deterred from appealing an erroneous conviction because of the possibility that on retrial after reversal he may be subjected to an even greater penalty. (Accord People v. Hood (1969) 1 Cal.3d 444, 459, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Chavez (1970) 4 Cal.App.3d 832, 839, 84 Cal.Rptr. 783.)

This double jeopardy principle has no application, however, to a resentencing without retrial, occasioned by discovery of an error in the sentencing procedure. The distinction was set forth with clarity in People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289:

“In the Henderson case, as in each of the cited cases which followed it, the sentence imposed after the first trial was a lawful one, within the limits of the discretion conferred by statute for the offense of which the defendant had been convicted. The judgments pronounced at the first trials were reversed because of errors having nothing to do with the sentences.

“The rule is otherwise when a trial court pronounces an unauthorized sentence. 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. (Fn. omitted.)” 2

Related to this problem is the question whether the sentence in this case was in fact a “greater sentence” than that which preceded it. In People v. Ali (1967) 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932 a case involving retrial and resentence because of trial error it was held that the three counts on reconviction could not be run consecutively when the sentence for the same three counts on the original trial had been concurrent. The second sentence in Ali was for a longer period than the first, and on this ground the authority is apparently not controlling, since the defendant herein obtained a net eight month reduction of his sentence upon reconsideration. However, the defendant contends that each of the several counts must be viewed separately, and in that light the sentence on the ninth count originally concurrent with other terms has been impermissibly expanded by running it consecutively.

California's sentencing philosophy and practice was greatly altered by the Determinate Sentencing Act (Stats.1976, ch. 1139). In a multi-count case one count is selected as the “principal” count, and the sentence term resulting therefrom is the “base” term. Terms then imposed on additional counts become “subordinate” terms. The selection of the length of the base term is reached by weighing factual factors in “mitigation” and “aggravation,” resulting in a selection of a lower, median or upper term. Enhancements for various reasons can be added, in some cases only to the base term and in others to subordinate terms as well. Enhancements can be stayed or stricken; terms on counts can be run concurrently or consecutively. The end product of this multi-choice formula is a composite term, referred to in the statutory abstract of judgment form as the “total unstayed prison term imposed by this judgment.” The interrelationship of sentence choices in multi-count judgments is not only required by the terms of the sentencing rules, but necessarily and from a practical point of view imposes itself as an integral part of the sentencing judge's decisional framework. Decisions made with reference to one count most usually relate to and are influenced by companion decisions which must be made for other counts. Where an error in sentencing is made and it is desired to reconstruct a correct and lawful sentence, the only reasonable way to approach the task is to reconsider all of the choices originally made, in light of the modifications required by the error. A restructuring of the sentence by excising portions of it without regard to the effect on the balance would be productive of illogical, arbitrary and undesirable results.

Therefore, where a trial court is required to reconsider a sentence based upon multiple counts, it should be permitted regardless of the reason for resentencing to re-evaluate its various choices on the several counts, as made at the time of first sentencing. Since the final product of the sentencing procedure is essentially one judgment composed of a number of variable ingredients, the “double jeopardy” argument appears in any event to be valid only if the total term of the second sentencing is greater than that originally imposed.

It is therefore determined that on resentencing under the Determinate Sentence Law the trial court is in any event entitled to review, reconsider and reassemble the components of the sentence, even though certain counts in the revised sentence may individually constitute a greater percentage of the total sentence. Where a second sentencing is based upon an error in law by the judge at the time of sentencing, or distinquished from an error during trial requiring retrial, the judge is free to reconsider the entire sentencing package without restraint as to the total term first imposed.

For these reasons the judgment is affirmed.



1.  All statutory references are to the Penal Code unless otherwise specified.Penal Code section 1170, subdivision (d), provides: “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections of the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.”Count 1:mid-term of three years3 years12022.5 enhancement2 years Count 2:one-third mid-term of 3 years1 year(to run consecutively)Count 3:one-third mid-term of 3 years1 year(to run consecutively) Count 8:one-third of mid-term of 3 years1 year(to run consecutively Count 9:one-third of mid-term of 3 years1 year(to run consecutively) TOTAL9 years

2.  This distinction has been uniformly applied, both before (In re Sandel, supra, 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806; People v. Massengale (1970) 10 Cal.App.3d 689, 692, 89 Cal.Rptr. 237; People v. Orrante (1962) 201 Cal.App.2d 553, 557, 20 Cal.Rptr. 480) and following Serrato (People v. Lopez (1980) 110 Cal.App.3d 1010, 1024, 168 Cal.Rptr. 378; People v. Hickey (1980) 109 Cal.App.3d 426, 436, 167 Cal.Rptr. 256; Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 819, 166 Cal.Rptr. 795; In re Eugene R. (1980) 107 Cal.App.3d 605, 618, fn. 8, 166 Cal.Rptr. 219, 144 Cal.Rptr. 89; People v. Espinoza (1979) 99 Cal.App.3d 59, 68, 159 Cal.Rptr. 894; People v. Superior Court, supra, (1978) 84 Cal.App.3d 480, 486, 148 Cal.Rptr. 698; People v. Superior Court (Gonzales) (1978), 78 Cal.App.3d 134, 143, 144 Cal.Rptr. 89; People v. Meyers (1978) 77 Cal.App.3d 732, 738, 143 Cal.Rptr. 686; People v. Schuler (1977) 76 Cal.App.3d 324, 336, 142 Cal.Rptr. 798). To be distinguished is People v. Collins (1978) 21 Cal.3d 208, 216, 145 Cal.Rptr. 686, 577 P.2d 1026, which involved the reversal of a sentence upon a count which, between the time of conviction and sentencing had been decriminalized. When the Supreme Court determined that the defendant could not be sentenced for the now non-criminal conduct, it was faced with instructing the trial court on remand with respect to its sentencing discretion. The original sentence had been based upon a plea bargain, a portion of which resulted in the striking of certain counts. Upon remand, the Supreme Court instructed the District Attorney would be entitled to reinstate the dismissed counts, provided the total term then selected for the sentence could not exceed that which previously could have been imposed on the basis of the plea. This authority was utilized in People v. Gutierrez (1980) 109 Cal.App.3d 230, 233, 167 Cal.Rptr. 162, as the ground for limiting a potential term on resentencing to the term originally imposed. The appeal in Gutierrez was based upon consideration at the time of sentencing of facts related to dismissed counts subsequently prohibited in People v. Harvey, supra. In terms of remand based upon error at the time of sentencing, the procedural genesis of Gutierrez appears to fall into the category of cases following Serrato, supra. However, it is noted that the Serrato line of cases, culminating in Duran, involve an erroneous and extra-jurisdictional sentence choice by the sentencing judge, which invalidates the entire process. Gutierrez involved a proper sentencing procedure in terms of choice and use of statutory authority, but an erroneous use of facts beyond the scope of the permissible record. Since on remand the sentencing judge would be faced with an identical framework of facts and law, sans only certain facts detrimental to the defendant, it would have been illogical and capricious to permit a sentence greater than that first imposed. The line of federal cases cited by appellant, exemplified by Kennedy v. United States (9th Cir., 1964) 330 F.2d 26, appears not to distinguish between the resentence after retrial based upon appellate reversal because of trial error, and a resentencing after determination of sentence error; however, other courts have found bases for distinguishing the reasoning of these cases. (See People v. Superior Court (Duran), supra, 84 Cal.App.3d at p. 488, 148 Cal.Rptr. 698.)

FROEHLICH, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

COLOGNE, Acting P. J., and WORK, J., concur.

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