Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-070605-1.
McGuiness, P.J.
In his second appeal, Eric Lamont Harris (appellant) challenges the sentence imposed by the trial court after we remanded the matter for resentencing. He contends the trial court erred in imposing enhancements for three prior prison terms it had previously stricken in the interests of justice. We reject the contention and affirm.
Factual and Procedural Background
On June 15, 2007, a jury found appellant guilty of two counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)) (counts 1 and 2) and one count of commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) (count 3). At sentencing, the trial court found appellant had suffered a prior serious felony conviction and had served four prior prison terms. The trial court imposed the middle term of three years on count 1 and doubled the sentence pursuant to the Three Strikes Law. It imposed a consecutive term of one year and four months on count 2 and stayed the sentence on count 3. It imposed two, five-year enhancements for the prior serious felony conviction and ordered that all four prior prison terms be stricken. In striking the prior prison terms, the trial court stated: “I believe that the term of prison that . . . I added up so far is a sufficient punishment for the offense . . . . [¶] And the Court will, in the interest of justice, strike, for purposes of sentencing, the . . . four 667.5(b)s [prior prison terms]; therefore, the total sentence in this matter is 17 years and four months.”
Appellant appealed, claiming the trial court erred in imposing two, five-year enhancements for the same prior serious felony conviction. In a nonpublished opinion filed June 26, 2008 (People v. Harris (June 26, 2008, A119129), we agreed and remanded the matter to the trial court for resentencing. We also stated: “There is nothing in the record indicating whether the [trial] court would have stricken the prior prison term enhancements had it known that only one, five-year enhancement could be imposed for the prior serious felony conviction. Accordingly, we remand the matter for the trial court to make that determination and to resentence appellant in accordance with the principles set forth in this opinion.”
“As noted, the trial court struck the prior prison terms for sentencing purposes after noting that the aggregate sentence of 17 years 4 months that it had imposed was ‘a sufficient punishment for the offense.’ ”
At resentencing, the trial court stated: “[The] Court of Appeal . . . noted that I struck [the prior prison terms] prior to . . . sentencing. They opened the door again to that and stated that in effect, if not expressly implied, I could exercise my discretion on how to handle that at resentencing time.” The trial court imposed the same six-year term on count 1 and a consecutive term of two years on count 2. It stayed the sentence on count 3, imposed one, five-year enhancement for the prior serious felony conviction, and three, one-year enhancements for the three prior prison terms. The total sentence was 16 years, which the court noted was an “adequate disposition for the history of this case, the history of the defendant, and the charges here.”
At resentencing, the trial court corrected itself and stated appellant had suffered three, not four, prior prison terms.
Discussion
Appellant contends the trial court erred in imposing enhancements for prior prison terms it had previously stricken because it was unauthorized to “fully resentence appellant and completely re-do the aggregate term” by “re-think[ing] its sentencing options and reviv[ing] the prison priors in order to achieve a pre-ordained result, i.e., some term approximating the 17 years it originally imposed.” The claim is without merit.
In support of his contention, appellant cites People v. Swanson (1983) 140 Cal.App.3d 571, 574, which held that “a sentencing judge is required to base his decision on the statutory and rule criteria, on an analysis of legitimate aggravating and mitigating factors, and not on his subjective feeling about whether the sentence thus arrived at seems too long, too short, or just right. He is not permitted to reason backward to justify a particular length sentence which he arbitrarily determines.” Appellant also relies on cases holding that the various portions of a determinate sentence are severable and must therefore be corrected upon resentencing in isolation from the remaining portions of the sentence. (E.g., People v. Drake (1981) 123 Cal.App.3d 59, 63-64 (Drake) [that the judge made a mistake of law about the maximum permissible aggregate term provides no basis to undo other parts of the sentence that were properly imposed]; People v. Espinoza (1983) 140 Cal.App.3d 564, 567 [relying on Drake in holding that remand for reconsideration of term imposed was not required where the trial court improperly imposed two enhancements rather than one].) More recent cases, however, have criticized the above portrayals of the mechanics of sentencing as unnecessarily “rigid.” (See, e.g., People v. Castaneda (1999) 75 Cal.App.4th 611, 614 (Castaneda); People v. Kelly (1999) 72 Cal.App.4th 842, 846-847; People v. Calderon (1993) 20 Cal.App.4th 82, 88 (Calderon); People v. Stevens (1988) 205 Cal.App.3d 1452, 1457.)
In Castaneda, supra, 75 Cal.App.4th 611, for example, the defendant was resentenced by the trial court because the 10-year sentence originally imposed violated a statutory limitation on enhancements. The original sentence was comprised of the three-year middle term for assault, with a four-year firearm use enhancement and a three-year great bodily injury enhancement. (Ibid.) On resentencing, the trial court stayed the great bodily injury enhancement and imposed a total sentence of eight years, comprised of a four-year upper term for assault and the four-year firearm use enhancement. (Id. at p. 612.) Castaneda held that the new sentence was proper even though the trial court had initially chosen the three-year middle term for assault. (Id. at p. 614.)
In so holding, Castaneda rejected the “rigid” theory of sentencing espoused in Swanson and stated: “ ‘A judge’s subjective determination of the value of a case and 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. [Citations.]’ ” (75 Cal.App.4th at p. 614.) Castaneda also rejected the defendant’s reliance on Drake, noting that Drake “ ‘has been routinely criticized for its characterization of determinate sentences as discrete and severable components capable of being separated out and corrected. “To the contrary, the components of an aggravated term are properly viewed as interdependent when calculating and imposing sentence, and an aggregate term of imprisonment under the determinate sentencing law constitutes a total prison term which is ‘a single term rather than a series of separate terms.’ [Citations.]” [Citations.]’ ” (Castaneda, supra, 75 Cal.App.4th at p. 613.)
Similarly, Calderon, supra, 20 Cal.App.4th at page 88, held: “We think the Swanson court overstated the case. At some point a judge should evaluate the sentence in the aggregate.” Rejecting “older cases to the contrary (People v. Espinoza[, supra, ] 140 Cal.App.3d 564; People v. Drake[, supra,] 123 Cal.App.3d 59),” Calderon held: “It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence and just as proper for the trial judge to reimpose the same sentence in a different manner.” (Calderon, supra, 20 Cal.App.4th at p. 88.) “ ‘[I]t is not at all uncommon for a trial court to impose an aggregate sentence intended as appropriate total punishment under all of the circumstances, only to discover after an appeal . . . that a portion of the sentence is infected by illegality.’ [Citation.] A determinate sentence is one prison term made up of discrete components. When one of them is invalid, the entire sentence is infected. [Citations.]” (Calderon, supra, 20 Cal.App.4th at p. 88.)
We find these later cases to be well reasoned and conclude the trial court properly considered the aggregate sentence in resentencing appellant. The trial court based its sentencing decisions on a variety of appropriate factors and reasoning, including appellant’s age, criminal history, the “very, very short period of time like three days” between the time he was released from parole and committed the current offense, the nature and seriousness of the offense, and the role appellant played in committing the offense. The trial court also properly considered the aggregate sentence in initially striking the prior prison terms “in the interest of justice,” based on its belief that the 17 year, four month prison term was “sufficient punishment for the offense.” When we ordered that one of the two, five-year enhancement be stricken, the “interest of justice” no longer required the striking of the prior prison terms. The trial court properly imposed enhancements for the prior prison terms it had previously stricken to reach a new aggregate sentence of 16 years, which it believed was an “adequate disposition for the history of this case, the history of the defendant, and the charges . . . .”
Disposition
The judgment is affirmed.
We concur Siggins, J., Jenkins, J.