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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Moreno VALDIVIA, Defendant and Appellant.

Cr. 14477.

Decided: June 28, 1983

Elizabeth M. McDonald, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp, Atty. Gen., and Jay M. Bloom, Deputy Atty. Gen., for plaintiff and respondent.


After a jury trial, 18-year-old Louis Moreno Valdivia (defendant) and David Ray Harris (Harris) were convicted of robbery (Pen.Code, § 211), burglary (Pen.Code, § 459), attempted burglary (Pen.Code, §§ 664, 459) and attempted robbery (Pen.Code, §§ 664, 211).   In addition, defendant was found to have used a firearm in the commission of the robbery (Pen.Code, § 12022.5), and to have been a principal in the commission of the attempted burglary and the attempted robbery wherein one of the co-principals was armed with a firearm (Pen.Code, § 12022, subd. (a)).

Although tried as an adult, defendant was initially committed to the California Youth Authority rather than to state prison, pursuant to Welfare and Institutions Code section 1731.5 (see infra, fn. 1).   Later, the director of the Youth Authority recommended that defendant be returned to court and formally sentenced pursuant to Welfare and Institutions Code section 1737 (see infra, fn. 3).   Upon his return, defendant was sentenced to state prison for a longer period than had originally been indicated in the Youth Authority commitment.

In his appeal from the judgment of imprisonment, defendant's sole contention is that the court's imposition of the longer period violated the double-jeopardy rule.



Harris and defendant went into a pawnshop in Van Nuys one afternoon to look at some guns.   While Harris was handling one of the guns, he decided to steal it.   He grabbed the gun, defendant held the door open, and they both ran out of the shop to Harris' car.   The manager of the shop chased them until defendant pointed the gun at him from the car and said, “ ‘Stop or I'll shoot.’ ”

Several hours later, defendant and James J. Filoan (Filoan), a hitchhiker Harris had picked up after the pawnshop incident, went into the Big Five Sporting Goods store on E Street in San Bernardino.   Defendant stuffed the gun in the waistband of his pants under his shirt.   Filoan asked for .38 ammunition.   The salesman put a box of shells on the counter.   Filoan took the box without paying for it, defendant held the door open and they both ran to the car.

Thereupon Harris, Filoan and defendant drove to Fontana, where Harris shot twice at the lock of an electronics store.   He was looking for a CB radio to monitor the police.   When he was unable to get into the electronics store, they proceeded to a nearby Circle K, which they talked about robbing.   Harris and Filoan got out of the car at the Circle K and were stopped by the police.



According to the initial probation officer's report, defendant asked to be sent to the Youth Authority “rather than be sentenced to State Prison.”   The probation officer recommended a state prison sentence for a total period of eight years and six months.   His recommendation was based on the serious nature of the offenses, and the fact that defendant had participated in the offenses while living in a Youth Authority halfway house.

After a diagnostic evaluation pursuant to Penal Code section 1203.03, defendant was committed to the Youth Authority pursuant to Welfare and Institutions Code section 1731.5.1  The court's decision as to the Youth Authority was based on, among other things, defendant's age and “rather horrendous background,” and the “rehabilitative efforts available at the Youth Authority.”   The Minute Order reads in pertinent part:  “TOTAL COMMITMENT IS 5 YEARS,” and indicates that the five years consists of the middle term of three years for the robbery, two years for the weapon enhancement, and concurrent terms for the other offenses.2

Five months later, the director of the Youth Authority recommended that the court recall the commitment and “resentence” defendant in accordance with Welfare and Institutions Code section 1737.3  The reason given for the recommendation was that defendant “is so incapable of reformation under the discipline of the Authority as to render his detention detrimental to the interests of the Authority and the other persons committed thereto.”

At the sentencing hearing, the court followed the recommendation in the second probation report and sentenced defendant to state prison for a total period of eight years and six months.   This figure represented the upper term of five years for the robbery, two years for the weapon enhancement, and consecutive terms of eight months, four months, and six months for the other offenses.



Defendant contends that by “resentencing” him to an increased sentence, the court violated his rights against double jeopardy.   Defendant argues that the court's action constituted a second prosecution for the same offense and multiple punishments for the same offense.

 As a threshold issue, the People contend that defendant has waived his double jeopardy claim by not objecting to the sentencing procedure in the trial court.   However, the cases the People rely on concern the waiver of a double jeopardy plea in the context of a mistrial, to which the defendant has consented.   This is not such a case.   There was no second trial here, nor did defendant elect the sentencing procedure at issue.   In addition, “If the [double jeopardy] plea would have been meritorious, the failure to assert it could constitute ineffective assistance of counsel, which may be raised on appeal.”  (People v. Moore (1983) 140 Cal.App.3d 508, 511, 189 Cal.Rptr. 487.)   Accordingly, the issue is properly before us, and we turn to the applicable law.

“The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees:  (1) ‘it protects against a second prosecution for the same offense after acquittal.  [ (2) I]t protects against a second prosecution for the same offense after conviction.  [ (3) ] And it protects against multiple punishments for the same offense.’ ”  (Illinois v. Vitale (1980) 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228.)

Defendant contends that the resentencing provision in section 1737 and its application by the court in his case violate the second and third guarantees quoted above.   Defendant's argument as to the second guarantee is that “[h]e was prosecuted twice, once by the jury and the second time by the trial judge in resentencing.”   This argument is without merit.

 The guarantee against a second prosecution applies to a second trial, not to a second sentence (assuming, arguendo, that defendant was initially “sentenced” to the Youth Authority).  (United States v. DiFrancesco (1980) 449 U.S. 117, 127–128, 136, 139, 101 S.Ct. 426, 432–433, 437, 438, 66 L.Ed.2d 328.)   Defendant has not offered, and we have not found, any authority to the contrary.   Defendant's claim that “[i]n resentencing ․ [he] must once again defend himself on the same charges for which he has already been convicted” is clearly incorrect.   In Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, relied on by defendant, the court held that double jeopardy applied to bar the trial of the defendant in the superior court on the same offense as that for which he had been tried in juvenile court, because of “ ‘[t]he policy of avoiding multiple trials.’ ”  (Id., 421 U.S., at p. 532, 95 S.Ct., at p. 1787, emphasis added.)   We conclude, accordingly, because the sentencing procedure at issue in this case was not a repeated attempt to convict by trial, that it did not violate defendant's constitutional guarantee against a second prosecution.

Defendant's “multiple punishment” argument is that “[i]n ‘re sentencing’ him, the court is giving him multiple punishment for the same offenses, an additional three years [sic].”  (Original emphasis.)   This argument is without merit.

In People v. Reynolds (1981) 116 Cal.App.3d 141, 171 Cal.Rptr. 461, the defendant was committed to Youth Authority then returned to court and sentenced to prison pursuant to Welfare and Institutions Code section 1737.1.4  The reviewing court's response to the defendant's double jeopardy argument was terse:  “Appellant's contention that his prison sentence in some way placed him in double jeopardy is also without merit.   The purpose of the double jeopardy provision is directed to the elimination of the burden of multiple prosecutions.  [Citation.]  Appellant was prosecuted only once for this offense.”  (Id., at p. 148, 171 Cal.Rptr. 461.)

 Stated more fully:  the double jeopardy bar against multiple punishment applies only to “ ‘punishment that would legally follow the second conviction.’ ”  (United States v. DiFrancesco, supra, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, emphasis added.)   This is because “the basic design of the double jeopardy provision ․ is, as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent.”  (Id., 449 U.S., at p. 136, 101 S.Ct., at p. 437.)   It is “the prohibition against multiple trials [that] is the ‘controlling constitutional principle.’ ”  (Id. 449 U.S., at p. 132, 101 S.Ct., at p. 435, emphasis added.)

Thus, in United States v. DiFrancesco, supra, the court held double jeopardy did not prevent the Government from seeking review of a sentence even though the defendant was subjected thereby to the risk of a greater sentence, because of the “fundamental distinctions between a sentence and an acquittal.”  (Id. 449 U.S., at p. 133, 101 S.Ct., at p. 435.)   The court reasoned that a review of a sentence “does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence,” (Id. 449 U.S., at p. 136, 101 S.Ct., at p. 437), and that “[t]he Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be.”  (Id. 449 U.S., at p. 137, 101 S.Ct., at p. 437.)   The court said that if the defendant is aware at the original sentencing that his sentence is subject to increase, then his “legitimate expectations are not defeated.”  (Id.)

 In this case, defendant's choice of Youth Authority commitment exposed him to a single sentencing scheme, pursuant to which his term of confinement was subject to elongation ab initio.  (Welf. & Inst. Code, §§ 1737 and 1737.1.)   Accordingly, his “legitimate expectations” were not defeated by the imposition of the longer term.

 Defendant argues that his “misconduct” at Youth Authority justifies a transfer to state prison but does not justify a longer period of confinement.   But it is not his misconduct at Youth Authority for which he is being sentenced.   As noted above, the increased term was based on the court's imposition of the upper term for the robbery and consecutive terms for the other offenses.

That is not to say, however, that the court could not take into account defendant's “aggressive, assaultive behavior” at Youth Authority (see infra ), in fixing the sentence.   As to the robbery term, California Rules of Court, rule 421 provides in relevant part:  “Circumstances in aggravation include ․ (b) Facts relating to the defendant, including the fact that:  (1) He has engaged in a pattern of violent conduct which indicates a serious danger to society.”   In addition, California Rules of Court, rule 408, subdivision (a) permits a sentencing court to apply criteria “reasonably related to the decision being made.”

In his section 1737 recommendation, the Director of Youth Authority included a memorandum on defendant's behavior after commitment.   The memorandum listed twelve disciplinary incidents in a period of approximately one year.   The incidents included one fight, one battery on a member of the staff, one intimidation of a trainee, five threats to staff and two incidents of destruction of state property.   The memorandum also referred to defendant's “well established pattern of aggressive assaultive behavior.”

At the hearing on the recommendation, the court read these and other passages from the memorandum.   The court then stated that it was imposing the upper term for the robbery because of the threat, premeditation and parole status incident to the commission of the offense, and because defendant “has in the past engaged in a pattern of violent conduct and aggressive assaultive behavior.”   Whether or not defendant's above-noted conduct at Youth Authority constituted “a pattern of violent conduct” under rule 421, subdivision (b)(1), it was properly considered by the court under rule 408, subdivision (a).

Welfare and Institutions Code section 1737 provides that the court may “resentence” a person in defendant's situation “as if he had not previously been sentenced.”   We conclude that the factors stated by the court were properly considered and were sufficient to justify its imposition of the upper term.  (Cal.Rules of Court, rules 408(a), 421(a)(1), (8), 421(b)(4).)

 As to the consecutive terms for the burglary, attempted burglary and attempted robbery offenses, the court reasoned:  “[B]asically, the Defendant and his cohort were involved in a series of crimes.   Each crime had a separate objective;  each crime was conceived and executed separately;  and each involved either acts of violence or possession of a weapon.   And, as a result, the Court feels that the sentences imposed should be, must, and are ordered to be served consecutively.”   We conclude that the court's decision was proper pursuant to Welfare and Institutions Code section 1737 and California Rules of Court, rule 425(a)(1), (2), and (3).


The judgment is affirmed.



1.   Welfare and Institutions Code section 1731.5 provides in relevant part:  “․ a court may commit to the [youth] authority any person convicted of a public offense who ․ (1) Is found to be less than 21 years of age at the time of apprehension.  (2) Is not convicted of first-degree murder ․ or sentenced to death, imprisonment for life, imprisonment for 90 days or less, or the payment of a fine ․  (3) Is not granted probation.”

2.   Rule 453, California Rules of Court, provides in relevant part:  “When a defendant is convicted of a crime for which sentence could be imposed under section 1170 and the court orders that he be committed:  (a) To the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, the order of commitment shall specify the term of imprisonment to which the defendant would have been sentenced.”

3.   Welfare and Institutions Code section 1737 provides in relevant part:  “When a person has been committed to the custody of the [youth] authority ․ the court, at any time thereafter upon recommendation of the director, may recall the commitment previously ordered and resentence the person as if he had not previously been sentenced.   The time served while in custody of the authority shall be credited toward the term of any person resentenced pursuant to this section.”

4.   Welfare and Institutions Code section 1737.1 provides in relevant part:  “Whenever any person who has been convicted of a public offense in adult court and committed to and accepted by the Youth Authority appears to the Youthful Offender Parole Board ․ to be an improper person to be retained by the Youth Authority, or to be so incorrigible or so incapable of reformation under the discipline of the Youth Authority as to render his or her detention detrimental to the interests of the Youth Authority and the other persons committed thereto, the board may order the return of such person to the committing court.   The court may then commit him to a state prison or sentence him to a county jail as provided by law for punishment of the offense of which he was convicted.   The maximum term of imprisonment for a person committed to a state prison under this section shall be a period equal to the maximum term prescribed by law for the offense of which he was convicted less the period during which he was under the control of the Youth Authority.”

The Court: * FN* Before KAUFMAN, Acting P.J., McDANIEL and RICKLES, JJ.