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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. 11797.

Decided: December 16, 1981

Quin A. Denvir, State Public Defender, Elaine A. Alexander, Chief Asst. State Public Defender, and Carolyn Sutton, Panel Atty., San Diego, under appointment by the Court of Appeal, 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, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, 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.” 2

 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.)   The prohibition of imposition of a greater sentence after successful appeal also applies to a sentence enhanced by running multiple terms consecutively where the original sentence had provided for concurrent terms (People v. Ali (1967) 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932).

A tenable contention is that the facts of this case do not raise the issue of increased penalty upon resentencing, since the period of the second sentence is in fact eight months shorter than the first sentence.   In the sense that the effective term of one of the counts has been expanded by running it consecutively rather than concurrently, however, appellant argues an increase has been effectuated.

 Even accepting this argument, the trial court's judgment was proper.   The prohibition against a greater sentence than that first imposed, where resentencing follows an appeal of trial error, has no application to resentencing occasioned by an error of law in the first 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 [60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677] 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.)” 3

Appellant contends the authorities represented by Serrato should be construed as applicable only to situations in which the entire sentencing procedure was flawed by some clearly erroneous premise such that the judge's action can be characterized as “without jurisdiction,” or “unauthorized.”   Certainly some of the cited authorities would fall into this description, such as Serrato, in which the sentence was based upon the wrong Penal Code section, or People v. Superior Court (Duran), supra, 84 Cal.App.3d 480, 148 Cal.Rptr. 698, in which again the court used the wrong Penal Code section, thus arriving at a sentence choice of 12, 18 or 24 months instead of the correct sentence choice of 16, 24 or 36 months under the appropriate code section.   Other authorities permitting longer incarceration on resentencing have not been based upon such clearly erroneous sentence choices, however, but classify more conventional trial court errors as resulting in “unauthorized” sentences.   In Wilson v. Superior Court, supra, 108 Cal.App.3d 816, 166 Cal.Rptr. 795, for instance, the error was in the reduction of a sentence imposed under the indeterminate sentence law by use of 4019 credits.   A subsequent appellate determination that 4019 credits could not be applied to an indeterminate sentence prompted the trial court to correct its first order, thereby lengthening the sentence.   On appeal, the error in the first sentencing was termed an “unauthorized sentence,” vesting the court with the power of revision with the effect of lengthening the term.   And in People v. Meyers (1978) 77 Cal.App.3d 732, 143 Cal.Rptr. 686, a sentence in violation of a plea bargain was deemed an “unauthorized sentence.”

 We are satisfied, therefore, the erroneous enhancement of subordinate terms is an error which resulted in an “unauthorized sentence” in that it was a sentence which utilized an unavailable ground for enhancement.   In reconsideration of the sentence, the trial court is not bound by the limits of the term first imposed.

Reflection upon the nature of our present sentencing procedures reinforces this conclusion.   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.   Certainly when the sentencing judge makes the term of the ninth count concurrent while making all other counts consecutive, he must have in mind a direct relationship to the term already imposed by the preceding counts.   When does enough become too much?   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 resentences under the Determinate Sentence Law it is entitled to review, reconsider and reassemble the components of the sentence.   The revised sentence may utilize a different count as the base term, and counts which initially were stayed or run concurrently with other counts may be activated or made to run consecutively.   Where the resentencing is upon a retrial of the case required by error during the first trial, the total term of the second sentence may not exceed that first imposed.   Where the resentencing is required by an error of law committed by the trial judge at the time of sentencing, resulting in an “unauthorized” sentence, the judge is free to reconsider the entire sentencing package without restraint as to the total term first imposed, and the second sentence may be of greater total duration than the original.

For these reasons the judgment is affirmed.

I concur in the result reached by the majority resolving the issue presented on these facts:  may the elements of an aggregate determinent sentence be restructured so as to change some from concurrent to consecutive following the striking of other unlawfully imposed components at defendant's request, so long as the new aggregate term does not exceed the original.1  Roth was not resentenced on either stricken enhancement, nor was his overall sentence term increased.   Although Roth received less than his hoped-for sentence reduction, he suffered no penalty for exercising his legal right to attack the invalid enhancements.   Under these facts, I find no due process violation nor double jeopardy infringement.   This result imposes no unreasonable restriction on the right of appeal.   Further, on resentencing, a defendant is free to argue against the restructuring of concurrent terms, and in fact, Roth did so.

On the other hand, I emphatically disagree with the dictum which allows using the threat of increasing an aggregate sentencing term as judicial Russian roulette to deter a defendant from (and even punish for) post-sentence efforts to set aside determinate sentencing components unlawfully imposed.   I dissent, not because this part of the majority opinion is dictum, but because it is wrong and, dictum or not, experience tells me it will be cited to, and used by, trial courts as authority.

The majority's attempt to enfold the facts of this case within the mantle of People v. Serrato, 9 Cal.3d 753, 109 Cal.Rptr. 65, 512 P.2d 289, does not track.   As it acknowledges, Serrato and its progeny permit the replacement of an “unauthorized” (void) sentence with one which is valid, even though the valid term may be longer than the unlawful one.   These cases are simple, involving the mere correction of sentences to punish the same underlying act.   Their holdings are in no way analogous to our situation where the void terms were placed on acts for which no punishment may be imposed.

The decision in Wilson v. Superior Court, 108 Cal.App.3d 816, 166 Cal.Rptr. 795, was painstakingly crafted to stress the void sentence replacement for the single count fell within the Serrato ambit.  People v. Meyers, 77 Cal.App.3d 732, 143 Cal.Rptr. 686, is even less support for the majority's attempt to bring Roth within the sweep of Serrato.   In Meyers the court noted “[T]he trial court attempted the impossible:  to incarcerate ․ [Meyers] physically for one year in spite of the fact that section 2900.5 [Pen.Code] said it could not be done.”   It then concluded the erroneous sentence was void, allowing resentencing within the purview of Serrato.  (Id., p. 738, 143 Cal.Rptr. 686.)

The majority expands Serrato's scope so that in all cases of sentencing defects occurring because of a judicial error of law, a resentencing court is free to impose a longer aggregate term, even where no sentence may be imposed for the acts as to which the invalid sentence was deleted.   This forces a defendant to exercise his legal right to object to illegal sentences, at his peril.   In so holding, the majority ignores an almost unbroken line of federal cases, cited by Roth, applying double jeopardy concepts to sentencing reversals as well as to judgments of conviction, whether based on errors of law (Kennedy v. United States (9th Cir. 1964) 330 F.2d 26), or of fact (United States v. Adams (6th Cir. 1966) 362 F.2d 210, 211).   So also, the matter has been previously examined within the framework of the so-called “aggregate” sentencing in Chandler v. United States (5th Cir. 1972) 468 F.2d 834, wherein the court found the threat of reconstituting an aggregate sentence to unconstitutionally deter the exercise of procedural guarantees under a double jeopardy analogy.   The court rejected the argument that this concept bored only a “narrow hole” in the double jeopardy clause.

However, recent dictum 2 in the 5–4 holding of United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328, casts serious doubt on the continued validity of relying on double jeopardy to prohibit increased sentencing not resulting from reversal of an underlying judgment of conviction.   The court postulated there should be a distinction made between the constitutional finality attaching to judgments of convictions, as contrasted with lesser protections flowing solely from sentences imposed on those judgments, with double jeopardy protections afforded only to the first situation.   As is inevitable, this dictum was relied upon to re-examine, and to depart from, the precedent of United States v. Welty (3d Cir. 1970) 426 F.2d 615, in the Third Circuit's recent opinion, United States v. Busic (3d Cir. 1981) 639 F.2d 940, cert. den., 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422.   On facts similar to ours, the court found no double jeopardy, and, balancing defendant's right to receive a specifically imposed sentence against societies' interest in insuring criminals get a full measure of punishment commensurate with their culpability, held the trial court was free to stack the remaining building blocks even higher on remand.

In California the question of whether a person is subjected to double jeopardy or deprived of due process has been held to be subject to analysis on independent state grounds under the broader protections offered in the California Constitution.   In People v. Henderson, 60 Cal.2d 482, 35 Cal. Rptr. 77, 386 P.2d 677, our Supreme Court refused to be limited by the narrower interpretation of federal double jeopardy enunciated in Stroud v. United States, 251 U.S. 15, 18, 40 S.Ct. 50, 51, 64 L.Ed. 103 (accord, Curry v. Superior Court, 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345).

In Henderson, the Supreme Court referred to language from Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, and stressed the unconscionability of allowing courts to inhibit persons from appealing convictions unlawfully obtained, through the threat of imposing a greater sentence when successful.   In part, the court relied on the fact there was no state interest in maintaining unlawful convictions by unreasonably restricting rights of appeal.  (People v. Henderson, supra, 60 Cal.2d 482, 497, 35 Cal.Rptr. 77, 386 P.2d 677.)   Similarly, I find no governmental stake in preserving illegal sentences sufficient to force certain convicted persons to exercise guaranteed rights of appeal only by risking more severe punishment through the reassembling of their lawful sentence components to create a new aggregate sentence longer than that originally imposed, although the original lesser sentence also included punishment for acts for which no separate sentence is permitted.

Therefore, the question is not whether increasing a total aggregate sentence on these facts technically violates double jeopardy in its purest analysis.   The real issue is whether, on these facts, it is so fundamentally unfair to place an erroneously sentenced defendant in the dilemma described that to do so denies due process.   The question is not a close one;  it does deny due process.

Roth correctly describes his quandary as one in which he is subjected to continuous uncertainty about his fate through lack of any finality of judgments and exposure to potential judicial and prosecutorial vindictiveness.   The rationale in Henderson applies to the due process denial here.3

I would affirm, but delete the majority's irrelevant discussion to which I dissent.



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.   Not raised as an issue on appeal is the question of the possible applicability of Penal Code section 1170.1, subdivision (f), which limits the total term to double the period of the base term.   That limitation is not applicable to this case since an enhancement pursuant to section 12022.5 was imposed.   By the clear and unambiguous terms of section 1170.1, subdivision (f), the limitation therein created is not applicable when the defendant has been convicted of a felony described in subdivision (c) of section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (b) of section 1170.1, or an enhancement is imposed pursuant to section 12022, 12022.5, 12022.6 or 12022.7.   (People v. Wright (1979) 92 Cal.App.3d 811, 813–814, 154 Cal.Rptr. 926.)

3.   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, supra, 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;  People v. Superior Court (Duran), 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).   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.)

1.   The Penal Code section 1170.1, subdivision (f), issue was not raised on this appeal but is discussed by the majority in footnote 2.   I do not agree the holding in People v. Wright, 92 Cal.App.3d 811, 154 Cal.Rptr. 926, is correct.

2.   DiFrancesco only decided the narrow issue of the validity of a congressional statute allowing a reviewing appellate court to increase a sentence imposed by the trial court on a person found to be a “dangerous special offender” involved in organized crime.

3.   The United States Supreme Court recognizes imposing a more severe sentence upon reconviction for the explicit purpose of punishing a successful appellant for his appeal would flagrantly violate the Fourteenth Amendment.  (North Carolina v. Pearce, 395 U.S. 711, 723–724, 89 S.Ct. 2072, 2079–2080, 23 L.Ed.2d 656.)   I am certain the majority shares this concern.   Unfortunately, the result it espouses would condone such punitive judicial reaction, whether the motive is apparent on, or hidden behind, the public record.

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

COLOGNE, Acting P. J., concurs.