Opinion
G043668 Super. Ct. No. 05CF3395
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. OTIS DANDRE HART, Defendant and Appellant.
Marleigh A. Kopas, 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, James D. Dutton and Emily R. Hanks, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Thomas M. Goethals, Judge. Request for judicial notice. Judgment affirmed in part and reversed in part and remanded with directions. Request denied.
Marleigh A. Kopas, 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, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
"A jury convicted defendant [Otis Dandre Hart] of 10 counts of conspiracy to commit robbery, 17 counts of second degree robbery, 10 counts of street terrorism, and 1 count of assault with a deadly weapon. The jury also found true defendant had committed the conspiracy, robbery, and aggravated assault counts for the benefit of a criminal street gang and that a principal used a firearm in 15 of the offenses, and that he personally used a firearm in 2 of the counts. The court sentenced him to 43 years in prison." (People v. Hart (Aug. 31, 2009, G039836) [nonpub. opn.], p. 2.)
Defendant appealed and we rejected his contentions regarding prosecutorial misconduct and denial of his motion for new trial. But we agreed sentencing error occurred and remanded for resentencing. In light of that, we declined to address his arguments that double jeopardy precluded a greater sentence on remand and that the trial court failed to consider his reduced culpability as a youthful offender. (People v. Hart, supra, G039836, pp. 21-22.)
Upon resentencing, the court imposed a sentence of 56 years 4 months. Defendant contends this violated his right against double jeopardy. We agree and remand the matter for resentencing. As a result, it is unnecessary to address his arguments regarding cruel and unusual punishment or that the court abused its discretion because it did not realize it could sentence defendant to a lower term than originally imposed and failed consider his young age warranted a less punitive sentence than an adult who commits comparable offenses. Defendant may bring these matters to the court's attention on remand for its consideration.
As to defendant's assertion a criminal conviction assessment was improperly imposed under Government Code section 70373, the Attorney General agrees this was error and we concur because defendant was convicted before the statute's effective date. Although the Attorney General also agrees with the additional claims of sentencing error made in defendant's supplemental brief, which we granted permission to file, our decision vacating the sentence and remanding for resentencing moots those issues. We deny defendant's request for judicial notice as unnecessary to our decision.
DISCUSSION
1. Double Jeopardy
Defendant contends his sentence of 56 years 4 months, increased by 13 years 4 months from the original sentence of 43 years, violates the prohibition against double jeopardy. We agree.
Generally, the rule against imposition of a harsher sentence on remand for resentencing due to double jeopardy concerns does not apply where the original sentence is unauthorized. (People v. Serrato (1973) 9 Cal.3d 753, 764-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) The Attorney General cites our prior opinion, which concluded the court's original sentence striking the firearm enhancements relating to counts 3,8, 18, 22, 26, 33, and 34 was unauthorized because it was forbidden by Penal Code section 12022.53, subdivision (h) (all further statutory references are to this code, unless otherwise stated). "Examples of unauthorized sentences [that do not bar the imposition of a more severe sentence on remand] include . . . the failure to . . . impose an enhancement [citations]." (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) Defendant does not dispute "portions of [his] original sentence were unauthorized."
But the question remains whether the original sentence showed "legally unauthorized leniency that resulted in an aggregate sentence that fell below that authorized by law" (People v. Torres (2008) 163 Cal.App.4th 1420, 1432) or was "a legal aggregate sentence, only fashion[ed] . . . in an unauthorized manner" (People v. Mustafaa, supra, 22 Cal.App.4th at p. 1312). Torres observed in Serrato and other cases the defendant received a greater sentence on remand only where the aggregate sentence was less than the law allowed due to unauthorized leniency by the court. (People v. Torres, supra, 163 Cal.App.4th at p. 1432.) Because the original sentence "did not fall below the mandatory minimum sentence" and the one unauthorized component of the original sentence was more severe than that authorized, Torres concluded it "was therefore not a legally unauthorized lenient sentence." (Ibid.; see also People v. Mustafaa, supra, 22 Cal.App.4th at p. 1312 ["The court's error in separating the convictions from their attendant enhancements, though unauthorized by law, does not make the total sentence illegal"].) The Attorney General does not address this argument.
Here, although the failure to impose the firearm enhancements showed "legally unauthorized lenience," it did not result in an aggregate sentence below what the law authorized. As defendant explains, "a sentence of 42 years 4 months, or 35 years 8 months, or 20 years 8 months were all legally authorized sentences within legal aggregate limits." We therefore vacate defendant's sentence and remand the matter for resentencing.
2. Clerical Errors
In his supplemental opening brief, defendant requests this court to correct three errors regarding his sentence and abstract of judgment that he raised but the trial court failed to address. Although the Attorney General acknowledges the corrections should be made, our vacation of the judgment and remand for resentencing moots these issues. But we address these issues briefly for guidance on remand.
First, the abstract of judgment erroneously states defendant waived his right to appeal. The record shows defendant did not waive that right.
Second, the court incorrectly stayed the gang enhancements tied to counts 2, 3, 7, 8, 11, 14, 21, 22, 25, 26, 29, 32, 33, 34, and 37 under section 654 rather than California Rules of Court, rule 4.447 (rule 4.447) because those counts carried vicarious gun use enhancements. (§ 12022.53, subd. (e).) Section 12022.53, subdivision (e)(2) prohibits the imposition of both a gang enhancement and a vicarious use of a firearm during a gang-related crime enhancement. Where, as here, the gang enhancement is barred by an overriding statutory prohibition, "[t]he correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence [under] . . . rule 4.447" (People v. Lopez (2004) 119 Cal.App.4th 355, 364) and not section 654. Although the court also had discretion to strike the gang enhancement under section 186.22, subdivision (g) "'where the interests of justice would best be served . . ."' (People v. Sinclair (2008) 166 Cal.App.4th 848, 855), it declined to do so with respect to the above counts. Should the court on remand again decide not to strike the gang enhancements related to counts 2, 3, 7, 8, 11, 14, 21, 22, 25, 26, 29, 32, 33, 34, and 37, the enhancements should be stayed under rule 4.447 rather than section 654.
Finally, the court erred in sentencing defendant to a three-year concurrent middle term on count 4 and staying the gang enhancement under section 654. As we determined in our prior opinion, the trial court did not have discretion to stay the gang enhancement under section 654 where the underlying count is not stayed but rather must run the terms concurrently unless the enhancement is stricken under section 186.22, subdivision (g). (People v. Mustafaa, supra, 22 Cal.App.4th at pp. 1310-1311.) If, on remand, the court imposes a concurrent term on count 4 and does not strike the gang enhancement related to that count, the gang enhancement for count 4 should be imposed concurrently rather than stayed under section 654.
DISPOSITION
The sentence is vacated and the matter is remanded to the Superior Court for resentencing in accordance with this opinion. The $1,440 criminal conviction assessment under Government Code section 70373 is stricken. Defendant's request for judicial notice is denied. In all other respects, the judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: O'LEARY, J. MOORE, J.