Opinion
G043942 Super. Ct. No. 06SF0677
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. BRIAN MICHAEL CROSBY, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon and Charles C. Ragland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Brian Michael Crosby guilty of first degree residential burglary (Pen. Code, § 459; all statutory citations are to the Penal Code unless noted), concealing stolen property (§ 496, subd. (a)), and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). This is Crosby's second appeal of this case. In his first appeal, we rejected his bid to overturn his convictions, but determined there was insufficient evidence to sustain the trial court's finding Crosby's 1991 Florida burglary conviction constituted a serious felony under the Three Strikes law and section 667, subdivision (a)(1). We remanded for a possible retrial on the allegation. The prosecutor elected to present no additional evidence, and the trial court found the allegation not to be true. Over Crosby's objection, the court vacated the original sentence, an aggregate term of 18 years, and imposed a new sentence of 16 years.
In the current appeal, Crosby contends the trial court lacked authority to reconsider the entire sentence following reversal and retrial of the prior conviction allegation. He asserts the trial court should have deleted only the previously imposed sentence on the Florida burglary conviction, resulting in a nine-year prison sentence. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the current crime, a 2006 residential burglary, are only marginally relevant to this appeal, which involves sentencing issues.At the original trial, the jury convicted Crosby of residential burglary and marijuana possession. The trial court found Crosby had suffered two serious felony convictions, a 1991 Florida conviction for attempted robbery, and a 1991 Florida conviction for residential burglary, both of which qualified as strikes under the "Three Strikes" law (§ 667, subd. (d)), and as five-year enhancements under section 667, subdivision (a). The court also found Crosby had served six prior prison terms within the meaning of section 667.5, subdivision (b).
The reader is referred to the statement of facts and procedural history contained in our earlier opinion. (People v. Crosby (Dec. 22, 2009, G040204 [nonpub. opn.] (Crosby, G040204).)
At the original sentencing hearing, the court dismissed the 1991 Florida attempted robbery conviction for sentencing under the Three Strikes law (People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero); § 1385), struck the six prior prison term enhancements, and imposed an 18-year prison sentence, comprised of an eight-year term (four years doubled because of the Florida burglary strike prior) for the current burglary, and two five-year enhancements under section 667, subdivision (a). The court suspended the sentence on the marijuana conviction.
In our prior opinion (Crosby, supra, G040204), we rejected Crosby's arguments to reverse his convictions, but concluded the record contained insufficient evidence to sustain the trial court's finding Crosby's 1991 Florida burglary conviction constituted a serious felony under California law, and reversed for a possible retrial on the allegation. Our disposition provided: "The judgment is reversed, and the matter is remanded for a new trial on the allegation that defendant's 1991 Florida burglary conviction constitutes a serious felony under California law."
The prosecutor elected not to present additional evidence concerning the Florida burglary conviction, and the trial court found the allegation unproven. Over Crosby's objection, the trial court vacated the original sentence and imposed a 16-year term, comprised of an eight-year term (four years doubled based on the Florida attempted robbery strike prior) for the current burglary, a five-year enhancement for the Florida attempted robbery under section 667, subdivision (a), and three consecutive one-year terms under section 667.5, subdivision (b). The court declined to exercise its discretion to strike the Florida attempted robbery conviction pursuant to Romero.
II
DISCUSSION
A. The Trial Court Did Not Err in Reconsidering Crosby's Entire Sentence After Reversal and Retrial of the Prior Conviction Allegation
Crosby contends the trial court lacked authority to reconsider his entire sentence following retrial of the prior conviction. He asserts the court should have excised the portion of the previously imposed sentence attributable to the Florida burglary conviction, resulting in a nine-year prison sentence. We disagree.
A felony sentence for a multiple-count conviction is "an integrated whole"; it does not "consist[] of multiple independent components." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1257.) Thus, when resentencing a defendant who successfully appeals his conviction or sentence, the general rule is that a trial court may reconsider all sentencing choices, provided the aggregate sentence does not exceed the one originally imposed. (Burbine, at p. 1256; People v. Hill (1986) 185 Cal.App.3d 831 ["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"]; People v. Savala (1983) 147 Cal.App.3d 63, 68-69.) A court violates neither the due process nor the double jeopardy clauses if it resentences a defendant to an equal or lesser aggregate term, even if the new sentence includes a greater component term than the court had originally imposed. (People v. Craig (1998) 66 Cal.App.4th 1444, 1447-1452 (Craig); Hill, at p. 835 [defendant is not entitled to keep the favorable aspects of his original sentence and eliminate the unfavorable aspects]; cf. People v. Torres (2008) 163 Cal.App.4th 1420, 1429 [where a sentence is recalled pursuant to section 1170, subdivision (d), double jeopardy principles prohibit trial court from imposing a greater sentence where correcting illegal portion of original sentence].)
Crosby argues the trial court may reconsider all of its sentencing choices only where the original sentence is unauthorized. Crosby reasons the court erred in reconsidering the entire sentencing scheme on remand because the original sentence was authorized under the law, although based on the factually flawed premise that sufficient evidence supported the prior Florida burglary conviction. Again, we disagree.
"[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.) Unauthorized sentences commonly occur where no statutory basis exists to support the trial court's sentence, or the court fails to follow mandatory sentencing provisions. (Ibid.)Sentences imposed in a procedurally or factually flawed manner, however, are not categorized as unauthorized. (Ibid.)
Crosby correctly notes that a defendant who successfully appeals an unauthorized sentence "is not necessarily entitled to claim the protection of that invalid judgment as an absolute limitation upon what the court may do thereafter." (People v. Serrato (1973) 9 Cal.3d 753, 765, overruled on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) It does not follow, however, that a trial court's sentencing choices are limited when correcting an authorized but procedurally or factually flawed original sentence. Assuming the trial court does not impose a greater sentence than it originally imposed, it may reconsider all the component parts of its earlier sentence.
Our decision in People v. Calderon (1993) 20 Cal.App.4th 82 (Calderon), illustrates the point. There, the trial court originally imposed a lengthy sentence in a multi-count case, including a one-year consecutive sentence for attempted robbery. The appellate court remanded with directions to dismiss the attempted robbery conviction because it was a lesser included offense of a robbery charged in another count. (Id. at p. 84.) On remand, the trial court imposed the same aggregate sentence by changing a stayed term on another count into a consecutive term. (Ibid.)We observed that a determinate sentence is often the sum of discrete components, and when one of them is invalid, the entire sentence is infected. (Id. at p. 89.) We concluded that it was not improper to increase one component of the defendant's sentence where the overall sentence was not increased. (Ibid.) The original sentence in Calderon, although erroneous, was authorized by statute. We find the reasoning in Calderon controls and therefore reject Crosby's assertion the trial court could not reconsider all the component parts of the original sentence.
Crosby also asserts "the trial court exceeded the scope of this Court's disposition order." Nothing in our disposition of the first appeal purported to limit the trial court's discretion in resentencing Crosby after retrial of the prior conviction. Resentencing was necessary because the trial court found the prior conviction allegation not to be true, which rendered the eight-year term originally imposed for the current burglary unauthorized. (See People v. Rojas (1988) 206 Cal.App.3d 795, 802 [appellate court reversed five-year enhancement and remanded for resentencing noting the invalidity of the enhancement necessarily affected the entire sentence, especially where trial court indicated it selected other terms based on a belief the five-year enhancement was mandatory].)
Crosby notes the prosecution did not "appeal the trial court's ruling as to the Romero finding, nor did it appeal from the court's striking of the prior prison term enhancement. Thus, the judgment, with respect to the . . . [striking of] the 1991 Florida attempted robbery and the striking of the prior prison term enhancements remained in full force and effect." He also argues the trial court did not have "jurisdiction to relitigate the Romero motion, nor reconsider its dismissal of the prior prison term enhancements since any reconsideration thereof was barred by the principles of collateral estoppel, double jeopardy and due process."
The Attorney General's failure to appeal the earlier sentence is without consequence. Our prior disposition reversed the judgment, which "ordinarily leaves the proceeding in the same situation in which it stood before the judgment or order was made . . . 'with the exception that the opinion of the court of appeal must be followed so far as applicable.'" (Odlum v. Duffy (1950) 35 Cal.2d 562, 564-565.) Our disposition in Crosby's appeal did not limit the trial court's discretion in reconsidering the sentence, including its decision to strike the prior conviction under Romero. And, as explained above, the trial court's resentencing did not violate double jeopardy or due process because Crosby received a lesser sentence than originally imposed. (See Craig, supra, 66 Cal.App.4th at pp. 1447-1452.)
As for collateral estoppel, Crosby cites no authority for his claim. It is unclear whether collateral estoppel "'even applies to further proceedings in the same litigation. [Citation.]'" (People v. Barragan (2004) 32 Cal.4th 236, 253.) Collateral estoppel operates as a "'"conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." [Citation.]' [Citation.] 'The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citation.]' [Citation.]" (Ibid.)Here, there was no final judgment because we reversed the judgment in the first opinion, and the issues confronting the trial court at the original sentencing and resentencing were not identical. The court's finding the burglary conviction did not constitute a serious felony dramatically altered the issues presented for sentencing. The trial court initially struck the Florida attempted robbery conviction because it determined an indeterminate 25 years to life term was inappropriate given the current offense and Crosby's background and prospects. But the court determined a second strike sentence was appropriate. The same reasoning supports the court's decision not to strike three of Crosby's section 667.5, subdivision (b), enhancements at the resentencing. The trial court's "subjective determination of the . . . the appropriate aggregate sentence, based on the judge's experiences with prior cases and the record in the defendant's case, cannot be ignored. A judge's subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria." (People v. Stevens (1988) 205 Cal.App.3d 1452, 1457; Calderon, supra, 20 Cal.App.4th at p. 88 [trial court undoubtedly considered the overall prison term in making initial sentencing choices, and length of enhancements influenced its choices].)
Relying on People v. Carrillo (2001) 87 Cal.App.4th 1416 (Carrillo), Crosby argues the trial court erred by "conditionally dismiss[ing]" his strike and section 667.5, subdivision (b), enhancements. In Carrillo, the defendant pleaded guilty to drug offenses and admitted a strike allegation and two prior prison term allegations. At the sentencing hearing, defense counsel asked the court to consider conditionally dismissing the strike allegation for the limited purpose of allowing the defendant to enter the California Rehabilitation Center. The appellate court concluded the trial court correctly determined it lacked the authority to do so under section 1385, and observed "[t]he procedure envisioned by defendant is more akin to a stay. [¶] 'A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency. [¶] In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding . . . .'" (Carrillo, at p. 1421.)
As Crosby notes, striking or dismissing a prior conviction is used to delete the "legal efficacy of the stricken allegation or fact for purposes of a specific proceeding." (People v. Santana (1986) 182 Cal.App.3d 185, 190.) Trial courts employ the procedure, encompassed within the power authorized by section 1385, where the court concludes in the interest of justice a "'defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of that fact. [Citations.]'" (Santana, at p. 190, fn. 6.) The "'action is taken . . . "for the purpose of sentencing" only and "any dismissal of charges of prior convictions . . . does not wipe out such prior convictions or prevent them from being considered in connection with later convictions."'[Citations.]" (Ibid.)
The trial court did not conditionally strike or stay Crosby's priors to allow him to enroll in a program for which he was otherwise statutorily ineligible. Rather, the court struck the prior and enhancements to fashion a sentence it deemed fair. As noted above, our reversal of the judgment placed the parties in the same position they held before the court pronounced sentence. Carrillo did not involve a reversal and resentencing, and is therefore inapposite.
Finally, Crosby asserts the court "penalized" him for attacking the Florida burglary conviction. He also states "it is improper when formerly dismissed prior convictions are reinstated in order to achieve a lengthy prison sentence." He cites no authority for these propositions. He acknowledges his aggregate sentence was reduced from 18 years to 16 years after the appeal and retrial on the prior conviction allegation. A claim of judicial vindictiveness fails. (See People v. Hanson (2000) 23 Cal.4th 355, 360; North Carolina v. Pearce (1969) 395 U.S. 711, 725.) B. The Trial Court Did Not Abuse Its Discretion in Declining to Strike the 1991 Florida Attempted Robbery Conviction
Crosby contends the trial court abused its discretion when it declined to strike his prior Florida attempted robbery conviction (Romero, supra, 13 Cal.4th at p. 504; § 1385), which placed him within the sentencing scheme of the Three Strikes law. The Three Strikes law was "designed to increase the prison terms of repeat felons" (Romero, at p. 504) within a spirit of "'"the fair prosecution of crimes properly alleged." [Citation.]'" (Id. at p. 531.) In Romero, the Supreme Court concluded section 1385, subdivision (a), permits a trial court to exercise its discretion to strike a prior felony strike conviction in the interests of justice. A trial court's discretion to strike a prior conviction is limited, however. Courts may not dismiss prior convictions solely to accommodate judicial convenience or relieve court congestion. Nor may the court strike a prior solely in exchange for a guilty plea, or because the court dislikes the lengthy sentence a defendant must serve under the Three Strikes law. (Romero, at p. 530.)
Section 1385 provides, "(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading."
The standard for ruling on a Romero motion, and for our review, is "whether, in light of the nature and circumstances of [a defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) Our review is "deferential," not de novo; the issue is whether the trial court's decision "'falls outside the bounds of reason.'" (Id. at p. 162.)
Crosby's trial lawyer argued the court should strike the prior conviction because the prior conduct occurred in 1990, Crosby was in his early 20's at the time of that offense, and Crosby's conduct on the current occasion was not particularly serious: "Mr. Crosby entered the residence in this case. He apparently [drank] a couple of . . . sodas, [took] a shower, swept the [victim's] patio and did take some of their personal property, which was recovered a short time later when he was detained."
The court declined to strike the prior based on Crosby's "horrendous criminal record." Referring to Crosby's prior prison terms, the court found Crosby had been convicted of numerous crimes, including several felonies, and "has not led a crime-free life since the strike from 1991 . . . . On the contrary, the defendant has engaged in a pattern of . . . criminal activity that is increasing in seriousness and shows that he is engaged in a life of crime as opposed to [becoming] a productive citizen . . . ." The court stated it was mindful of the "somewhat bizarre" circumstances of the current offense and "it appeared [he] was under the influence of some kind of narcotic and engaging in his activity, but he still engaged in dangerous behavior." The court remarked that when "you're breaking into a stranger's home and engaging in this kind of activity, that is dangerous. That's different from being violent." The court stated, "I do not think he is vicious, doesn't appear he is a violent person in the court's eyes, and I am looking at everything concerning his background and his prospects. But his criminal activity in the court's eyes is far too voluminous."
The trial court's conclusion Crosby did not fall outside the Three Strikes scheme was not unreasonable. Crosby's prior strike conviction did not dissuade him from other criminal endeavors. He has suffered numerous felony convictions, served six prison terms, and violated parole. The record reflects the trial court considered Crosby's background, character, and prospects, and weighed the relevant sentencing factors before declining to strike the prior conviction. Crosby has not shown the court's decision was arbitrary or irrational. Put another way, "It is not enough to show that reasonable people might disagree about whether to strike one or more of [defendant's] prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling . . . ." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) We discern no abuse of discretion.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.