Opinion
B225231
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN MORONES, Defendant and Appellant.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and David A. Wildman, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA057522)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jesus I. Rodriguez. Affirmed in part; reversed in part and remanded.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and David A. Wildman, for Plaintiff and Respondent.
This appeal follows a retrial of appellant Christian Morones's first degree murder charge. We previously reversed appellant's conviction for first degree murder and affirmed his conviction for robbery and burglary. (People v. Gomez (Oct. 30, 2006, B180504) [nonpub. opn.].) Following his retrial, a jury again convicted him of first degree murder.
In this appeal, we find merit to appellant's contention that his first degree murder conviction based on a provocative act murder doctrine must be reduced to second degree murder. Appellant was convicted based on the provocative act murder doctrine, which supplies implied malice sufficient to support only a second degree murder conviction. We reject appellant's arguments that reversal is required because the court denied his counsel a continuance and because the court denied his motion for a new trial. We remand the case to the trial court for resentencing.
FACTS
Albert Bachelier's father collected firearms and owned about 45 weapons. Bachelier lived in a trailer on his father's property and sometimes housed some of his father's firearms in his trailer. Gary Rodela, an acquaintance of Bachelier, had seen a firearm in Bachelier's trailer when he was there in mid-June 2003. Bachelier refused to lend or sell any firearm to Rodela.
On June 22, 2003, at approximately 4:30 in the morning, Rodela and his girlfriend Ursula Gomez arrived at Bachelier's trailer. Bachelier was inside with his then-girlfriend Helen Medina and with a friend Dena Victor. Bachelier, Medina, and possibly Victor had used methamphetamine that day. Bachelier allowed Rodela and Gomez to enter the trailer.
Victor denied using methamphetamine that day but admitted to smoking methamphetamine the day before, taking pain medication on June 22, and having a drinking problem.
Once inside the trailer, Rodela pulled a gun and pointed it at Bachelier. Shortly afterwards, appellant entered the trailer. Both appellant and Rodela yelled at Bachelier, asking him where he stored the guns and warning Bachelier that they would kill him if he lied. Bachelier lied, stating that he had no guns in the trailer. In reality, Bachelier had a loaded nine-millimeter handgun hiding in his back. He also had four other loaded guns (two .380-caliber weapons, a .22-caliber weapon, and a 12-gauge shotgun) hidden around the trailer. Bachelier was afraid if he told appellant and Rodela where the weapons were stored, appellant and Rodela would retrieve them and shoot Bachelier.
Under threat of death, appellant and Rodela ordered Bachelier, Medina, and Victor to sit underneath the kitchen table. Both appellant and Rodela had weapons, which they were pointing at Bachelier, Medina, and Victor. Then, each victim was separately ordered to stand up and be searched. As Bachelier was standing up, appellant and Rodela punched, kicked, and "pistol-whipped" Bachelier, causing Bachelier's head to bleed. Bachelier managed to keep his nine-millimeter handgun hidden during the search. After he was searched, Rodela ordered Bachelier back underneath the table.
According to Bachelier, when Rodela initially threatened to kill him, appellant said, "Hang on. Don't kill him yet. Let's search the house. Let's look -- let's keep looking in the house." Appellant searched the trailer and found the 12-gauge shotgun, which had been in a cabinet in the bedroom. When appellant showed the shotgun to Rodela, Rodela responded, "I knew that mother fucker lied to me. Kill him." Appellant said, "Let's not kill him yet." Subsequently, Rodela searched the trailer and found another gun. Rodela told appellant: "I found one. That mother fucker lied to me. Pull his ass out and kill him." This time, appellant did not tell Rodela to wait. Instead, appellant turned to Bachelier and pointed his gun at Bachelier. Bachelier thought he would be shot. Bachelier shot appellant and Rodela. When Bachelier initially discharged his weapon, appellant was pointing his weapon directly at Bachelier.
According to Medina, immediately before Bachelier shot appellant and Rodela, appellant and Rodela were threatening him. Bachelier was under the table; Medina was about three or four feet from the table; and appellant and Rodela were between the table and Medina. Rodela and appellant were standing within a foot of each other, directly in front of Medina. Similarly, Victor testified that appellant and Rodela were within "two arms length[]" of each other and between Bachelier and Medina when Bachelier shot at them.
Rodela later died of gunshot wounds. Appellant was injured but survived.
PROCEDURE
On September 26, 2003, appellant was charged in count 1 with the first degree murder of Rodela in violation of Penal Code section 187, subdivision (a). It was further alleged that the murder was committed while appellant was engaged in a robbery (§ 190.2, subd. (a)(17)). In count 2, it was alleged appellant committed a first degree residential robbery (§ 211). In count 3, it was alleged that appellant committed a first degree residential burglary (§ 459). With respect to counts 2 and 3, it was alleged appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). It was alleged that all offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). It also was alleged appellant had three prior convictions for which he did not remain free from prison custody for a period of five years (§ 667.5). Appellant was not charged with the attempted murder of any of the victims. Gomez also was charged, but she is not a party to this appeal.
Undesignated statutory citations are to the Penal Code.
In the first trial, appellant and Gomez were tried together. They were convicted of all counts. The jury further found that appellant and Gomez committed the murder during the commission of robbery (§ 190.2, subd. (a)(17)) and that counts 2 and 3 were committed to benefit a street gang (§ 186.22, subd. (b)(1)). The jury found that appellant personally used a firearm. (§ 12022.53, subd. (b).) Appellant and Gomez appealed from the judgment of conviction, and this court reversed the conviction for first degree murder. We also concluded that "[b]ecause we shall reverse in part and remand for further proceedings, we do not need to set forth in detail [appellant's] sentence[] . . . ." (People v. Gomez, supra, B180504.)
Following the reversal of appellant and Gomez's first degree murder conviction, Gomez pled no contest to voluntary manslaughter. Appellant was tried a second time. In his second trial, no witness testified for the defense.
During closing argument, the prosecutor argued that appellant intentionally pointed a gun at Bachelier. She argued that when "Mr. Rodela said that mother fucker lied to me. Pull him out and kill him. When the defendant did not express any type of resistance when he previously had been telling him not yet -- when he didn't say anything, turned his body and walked towards Mr. Bachelier, pointed a gun at him, that act was the provocative act." She argued that appellant committed an act, which caused death because he provoked Bachelier to shoot. The prosecutor further argued that appellant's actions demonstrated implied malice. She maintained that the murder was a first degree murder because the killing occurred during the course of a robbery.
Defense counsel admitted that appellant was inside Bachelier's trailer and was shot in the eye. Defense counsel emphasized the victims' drug use and Bachelier's bad character, which included possible identity theft. Appellant's primary defense was that Rodela, not appellant, committed the provocative act prior to Bachelier's shooting. Counsel pointed out that appellant's medical records were not introduced and may have shown where appellant was shot. Finally, counsel argued that Bachelier's recollection may have been impacted by his use of methamphetamine.
The jury was instructed that it had to determine whether appellant committed the following provocative act: "After Gary Rodela told the defendant, quote, that mother fucker lied to me. Pull his ass out and kill him, close quote, the defendant turned toward Mr. Bachelier and pushed his weapon under the table toward Mr. Bachelier. The defendant then pointed his gun directly at Mr. Bachelier." The trial court did not instruct the jury that to convict appellant of first degree murder it had to find he acted willfully and with premeditation and deliberation.
The jury found appellant guilty of the first degree murder of Rodela. The jury found the murder was committed while appellant was engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)(17). The jury was not able to reach a verdict on the gang allegation. Appellant timely appealed.
DISCUSSION
1. The Murder Conviction Must Be Reduced from First Degree to Second Degree
Murder is the unlawful killing of a human being with malice aforethought. (§ 187.) Malice may be either express or implied. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)
A provocative act murder follows a killing by an intended victim that proximately resulted from the "provocative conduct" by the defendant. (People v. Caldwell (1984) 36 Cal.3d 210, 214.) "Under the provocative act murder doctrine, the perpetrator of a crime is held vicariously liable for the killing of an accomplice committed by a third party." (People v. Briscoe (2001) 92 Cal.App.4th 568, 581 (Briscoe).) Under the provocative act murder doctrine, a defendant may be held liable for the killing of an unintended victim. (People v. Concha (2009) 47 Cal.4th 653, 664 (Concha).) "Under such circumstances, 'the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death' [citation], and it is unnecessary to imply malice by invoking the felony-murder doctrine." (People v. Washington (1965) 62 Cal.2d 777, 782 (Washington).) To support the murder conviction, malice must either be implied from a provocative act or express such as when a defendant possessed a specific intent to kill and personally acted willfully, deliberately, and with premeditation. (Concha, at p. 662.)
A provocative act murder may be first degree or second degree murder, depending on the defendant's mental state. Concha explained: "Once liability for murder is established in a provocative act murder case or in any other murder case, the degree of murder liability is determined by examining the defendant's personal mens rea and applying section 189. Where the individual defendant personally intends to kill and acts with that intent willfully, deliberately, and with premeditation, the defendant may be liable for first degree murder for each unlawful killing proximately caused by his or her acts, including a provocative act murder. Where malice is implied from the defendant's conduct or where the defendant did not personally act willfully, deliberately, and with premeditation, the defendant cannot be held liable for first degree murder." (Concha, supra, 47 Cal.4th at pp. 663-664.) Applying these principles, when a defendant attempted to murder a victim, the defendant may be convicted of the first degree murder of an accomplice if the defendant "personally acted willfully, deliberately, and with premeditation during the attempted murder." (Id. at p. 658.)
Section 189 provides: "All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree."
The Concha court reiterated the felony-murder rule does not support a first degree murder conviction for the death of an accomplice because it applies only when the defendant or an accomplice actually commits a killing. (Concha, supra, 47 Cal.4th at p. 661, fn. 2.) "The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. . . . That doctrine is incorporated in section 189 . . . which provides in part: 'All murder . . . committed in the perpetration or attempt to perpetrate . . . robbery . . . is murder of the first degree.'" (Washington, supra, 62 Cal.2d at pp. 780-781, citations omitted.) Under the felonymurder rule, the People are not required to prove that a defendant killed intentionally or with conscious disregard for life, but instead can rely on the intent to commit a dangerous felony to substitute for malice. (People v. Rios (2000) 23 Cal.4th 450, 460, fn. 6.) "Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony." (Washington, at p. 781.)
A. Robbery Here Does Not Support a First Degree Murder Conviction
In pertinent part, section 189 provides that a murder committed in the perpetration of, or attempt to perpetrate a robbery constitutes first degree murder. This language relied on heavily by respondent fails to support appellant's first degree murder conviction.
First, the pertinent language of section 189 is a codification of the felony-murder rule. (See, e.g., People v. Chun (2009) 45 Cal.4th 1172, 1182 ["first degree felony murder is a 'creation of statute' (i.e. § 189)"]; People v. Cavitt (2004) 33 Cal.4th 187, 197 [under § 189, "'[a]ll murder . . . which is committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery and burglary] is murder of the first degree'"]; Washington, supra, 62 Cal.2d at pp. 780-781 [felony-murder rule incorporated into § 189].) The felony-murder rule does not apply to a provocative act murder. (Concha, supra, 47 Cal.4th at p. 661, fn. 2.)
Second, the killing of Rodela was not committed in the perpetration of a robbery as required by section 189. "When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery." (Washington, supra, 62 Cal.2d at p. 781, italics added.) "Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words 'murder . . . which is committed in the perpetration . . . [of] robbery . . .' beyond common understanding." (Ibid.)
Third, the fact that the murder was committed during the course of a robbery is insufficient to support a murder conviction under the provocative act murder doctrine (In re Joe R. (1980) 27 Cal.3d 496, 504) even though it is sufficient under the felony-murder rule. A provocative act murder requires that the defendant act in a manner that provokes a deadly response from a third person with knowledge that the provocation has a high probability of "eliciting a life-threatening response from the third party." (In re Aurelio R. (1985) 167 Cal.App.3d 52, 57; see also Briscoe, supra, 92 Cal.App.4th at p. 583.) To prove a provocative act murder, the prosecution has the burden to show either implied malice in that the defendant provoked the murder or express malice. (Concha, supra, 47 Cal.4th at pp. 663-666.) In the context of a provocative act murder, the defendant's mens rea determines the degree of the murder; whether the defendant also committed a robbery is irrelevant to determine the degree of murder.
B. There Was No Willful, Deliberate and Premeditated Killing
Respondent argues that appellant acted willfully, deliberately and with premeditation. The argument lacks merit and contradicts the prosecutor's closing argument to the jury.
Appellant did not premeditate Rodela's killing because appellant did not kill Rodela, and there was no evidence he attempted to kill Rodela. Appellant did not premeditate Bachelier's, Medina's, or Victor's killing because none of them was killed. The People did not charge appellant with the attempted murder of Bachelier, Medina, or Victor. This case is distinguishable from Concha, in which the court found that a "defendant may be convicted of first degree murder under [a provocative act murder doctrine] if the defendant personally acted willfully, deliberately, and with premeditation during the attempted murder" of the intended victim. (Concha, supra, 47 Cal.4th at p. 658, italics added.) In that case, the defendant was charged and convicted of the attempted murder of the intended victim. (Id., at p. 659.) Here, there was no willful, deliberate, or premeditated murder or attempted murder.
As mentioned, the trial court did not instruct the jury that to find appellant guilty of first degree murder it had to find he acted willfully and with premeditation and deliberation. Because we conclude the murder conviction must be reduced from first degree to second degree, we need not consider appellant's argument that the trial court failed to instruct the jury on the mens rea required for first degree provocative act murder.
In People v. Kainzrants (1996) 45 Cal.App.4th 1068 and Briscoe, supra, 92 Cal.App.4th 568, the courts rejected challenges that the defendants did not commit provocative acts and upheld a first degree murder conviction based on the provocative act murder doctrine. However, no argument was made in either case that the evidence supported only a second degree murder charge and the cases were decided prior to our Supreme Court's decision in Concha, which explains when a provocative act murder is of the first degree.
Currently, the California Supreme Court is considering the provocative act murder doctrine in People v. Gonzalez, review granted March 23, 2011, S189856.
2. Continuance
Appellant argues the court abused its discretion in denying him a continuance after he announced that he was ready for trial. We disagree.
A. Background
Following the prior appeal in which appellant's murder conviction was reversed, appellant twice requested to proceed in propria persona. His requests were granted, and both times he later requested counsel.
Appellant first sought in propria persona privileges in June 2008. After being granted in propria persona privileges, on June 5, 2008, appellant was given a list of investigators. On July 31, 2008, the court appointed an investigator for appellant. On February 26, 2009, appellant requested counsel. Appellant indicated that he was making a "firm decision" that he wanted counsel and the court granted his request.
On July 30, 2009, appellant sought to represent himself. Appellant stated that he understood that trial would be within 30 days of August 20, 2009. Appellant indicated he was "ready to go" because "[i]t has been six years. I pretty much know this case." On July 30, 2009, Anthony Garcia was appointed standby counsel, and an investigator for appellant was reappointed. On November 2, 2009, standby counsel announced that appellant was ready for trial. The court stated that jurors were waiting to be called.
After announcing that he was ready, appellant requested to give up his in propria persona status. The court indicated that appellant was "playing games." Nevertheless, the court granted appellant's request and changed Mr. Garcia's designation from standby counsel to counsel. Mr. Garcia immediately requested a continuance to conduct an investigation and search for experts. The prosecutor opposed the motion indicating that witnesses had flown in from out of state and were waiting to testify. The motion for a continuance was denied. Voir dire commenced the next day. The court denied Mr. Garcia's additional requests for a continuance.
B. Analysis
"The determination of whether a continuance should be granted rests within the sound discretion of the trial court . . . ." (People v. Sakarias (2000) 22 Cal.4th 596, 646.) A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) "Whether good cause exists is a question for the trial court's discretion. [Citation.] The court must consider '"'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.'"' [Citation.] While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence [citation], the trial court may not exercise its discretion 'so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.' [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 450.) "A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal." (Ibid.)
Although Mr. Garcia was not appointed counsel until the day of trial, that fact does not show appellant was denied an opportunity prior to his 2009 trial to investigate the crime, which occurred in 2003. To the contrary, appellant had a reasonable opportunity to prepare. Not only did his appointed counsel have an opportunity to investigate prior to appellant's first trial, appellant had ample opportunity to investigate prior to his second trial. Indeed, appellant sought and received the appointment of an investigator and funds for such investigation while he represented himself. Appellant announced that he was ready for trial, suggesting that no further investigation was necessary. Counsel's naked assertion that he needed to investigate, retain expert witnesses, and obtain appellant's medical records, does not show that any further investigation was necessary to prepare appellant's defense. As appellant informed the court, the case had been pending for six years and he knew the case. His defense essentially was that he did not commit any provocative act and he does not explain how additional investigation would have assisted in this defense or any other defense.
A party who seeks a continuance to secure the attendance of a witness must show that he has exercised diligence to secure the witness's attendance, that the expected testimony by the witness is material and not cumulative, that the witness can be obtained within a reasonable time, and that the facts to which the witness will testify cannot otherwise be proven. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Assuming Mr. Garcia was diligent, he failed to make any showing that he anticipated noncumulative testimony or that witnesses could be obtained within a reasonable time. Moreover, appellant's request for a continuance was made at a time out-of-state prosecution witnesses were waiting to testify. (See ibid. [in deciding whether to grant continuance court may consider the burden on other witnesses, jurors, and the court].) The trial court's denial of appellant's request for a continuance did not exceed "the bounds of reason, all circumstances being considered." (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
In any event, even assuming the court should have granted the continuance, appellant fails to show prejudice. Appellant fails to show that an investigation or expert testimony would have been relevant to any material issue at trial. While he states that he needed to investigate the cause of Rodela's death, how the shootings occurred, the use of drugs by the victims and the gang-related nature of the charged offense, he fails to explain how an investigation of any of these issues would have assisted in his defense, which essentially was that Rodela, not appellant, committed the provocative acts. Thus, even if the court should have granted a continuance, reversal would not be warranted. (People v. Samayoa (1997) 15 Cal.4th 795, 840 ["In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction"].)
Finally, although the denial of a continuance may in certain instances deprive a defendant of the effective assistance of counsel, such deprivation did not occur in this case. (See People v. Fontana (1982) 139 Cal.App.3d 326, 333.) "'[T]he denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham. . . .'" (People v. Maddox (1967) 67 Cal.2d 647, 652.) For example, in Fontana, defense counsel requested a continuance because he did not have an opportunity to read the preliminary hearing transcript, to have any discussion with his client, or to read his client's statement. (Fontana, at p. 332.) Here, although Mr. Garcia desired to conduct additional investigation, Mr. Garcia was familiar with the case, and never argued otherwise. The denial of a continuance did not force Garcia to participate in a trial for which he had not prepared at all. In contrast to Fontana, appellant has not identified any material information the defense would have learned had a continuance been granted. There was no argument that Garcia - who had been standby counsel for months - lacked an opportunity to consult with appellant and prepare his defense.
3. Motion for New Trial Based on Medical Records
In a related argument, appellant claims the trial court should have granted his motion for a new trial based on newly discovered medical records. He argues the records were essential because they would have shown appellant received gunshot wounds, which contradicted Bachelier's version of what happened. Appellant identifies no specific testimony that his medical records would have contradicted. In his motion for a new trial, appellant argued "[t]he medical records would have assisted the defense in the critical questions of the shots being fired by Mr. Bachelier," but he offered no explanation how the medical records would have undermined Bachelier's testimony. Appellant seems to imply that if he had been shot in the back it would have shown Bachelier's testimony was wrong. But appellant's assumption is incorrect as even if he had been shot in the back, that fact would not have contradicted any of the witnesses' testimony regarding appellant's location or conduct when Bachelier shot him. Thus, appellant fails to show the medical records were material to the defense, a necessary element for obtaining a new trial. (§ 1181, subd. (8).)
Appellant cites defense counsel's argument that appellant was not near Bachelier at the time of the shooting, but that argument is not evidence. Appellant identifies no newly discovered evidence indicating that he was "not even near" Bachelier at the time of the shooting. The witnesses at trial consistently testified that appellant was close to Rodela and between Bachelier and Medina.
4. Resentencing Is Required
The case must be remanded for resentencing to modify the first degree murder conviction and instead impose a second degree murder conviction. Additionally, as shall be explained, the court must recalculate the determinate sentence imposed because it erred in imposing enhancements on robbery, when the underlying offense was stayed.
We reject appellant's arguments that the trial court was required to impose the same sentence on counts 2 and 3 as imposed in 2004 and that his aggregate determinate sentence could be no higher than that imposed in 2004.
A. Background
In the prior appeal, Judge Mark Kim sentenced appellant to life without the possibility of parole for the first degree murder with a special circumstance. The court stayed sentence on count 2, first degree robbery, pursuant to section 654. The court imposed a 10-year term for the firearm use enhancement. The court added 15 years to count 2 based on the gang enhancement. It ordered that term consecutive to the sentence for first degree murder. For the first degree burglary (count 3), the court ordered appellant to serve the midterm of four years and struck the gang and firearm enhancement in count 3. The court also struck all alleged priors in the interest of justice.
In the current case, Judge Rodriguez sentenced appellant to life in prison without the possibility of parole for the first degree murder charge and special circumstance. For the first degree robbery (count 2), the court imposed a nine-year concurrent term. The court stayed the nine-year term pursuant to section 654. The court imposed an indeterminate term of life with a minimum term of 15 years to life for the gang enhancement (186.22, subd. (b)(4)) and a 10-year consecutive term for the section 12022.53, subdivision (b) violation. On the first degree burglary (count 3), the court selected the high term of six years, and the midterm of four years for the enhancement pursuant to section 12022.5, subdivision (a). The court imposed a 15-year-to-life indeterminate term pursuant to section 186.22, subdivision (b)(4)(B). The court imposed an additional three years, consisting of one year for each section 667.5, subdivision (b) prior.
B. Analysis
The trial court was not required to impose the same sentence as that imposed following appellant's first trial. In the prior appeal, appellant argued that "a remand is necessary due to errors in Mr. Morones' sentence . . . ." We agreed with appellant that remand for resentencing was necessary. (People v. Gomez, supra, B180504.) Specifically, we concluded: "Because we reverse the convictions on count one and remand for further proceedings, we need not reach many of the other issues raised. Some, such as . . . sentencing errors, are conceded by respondent as errors and will not recur. Other issues are speculative based on what will or will not occur following reversal and remand." (Ibid., citation omitted.) The general principle that a court may not modify a sentence is inapplicable here because appellant successfully appealed and sought a remand for resentencing of his determinate term. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1423 [generally, but subject to exceptions, court may not resentence defendant once execution of sentence has begun]; see also People v. Neely (2009) 176 Cal.App.4th 787, 800 [requiring court to hold a new sentencing hearing following appeal].)
Because we conclude resentencing was appropriate, we need not consider appellant's arguments that Judge Kim erred in imposing sentence in 2004.
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There was no error in imposing a greater aggregate sentence because appellant's first sentence was unauthorized. In general, when a defendant successfully appeals a criminal conviction, he cannot be sentenced to a more severe punishment on resentencing. (People v. Hanson (2000) 23 Cal.4th 355, 357; People v. Savala (1983) 147 Cal.App.3d 63, 67.) However, "[a] more severe sentence may be imposed following a successful appeal if the initial sentence was unlawful or unauthorized." (People v. Neely, supra, 176 Cal.App.4th at p. 800.) The 2004 court was required to impose and stay sentence on count 2's enhancements and failed to do so. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.) On count 3, the 2004 court failed to either impose the gang enhancement or specify on the record the circumstances indicating that it would not be appropriate as required by statute. (§ 186.22, subd. (g).)
Appellant's argument is correct insofar as he argues, in his current sentence, the enhancements on count 2 should have been stayed because the base term on that count was stayed. "Where the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed." (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709, disapproved on another ground in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.) Thus, the case must be remanded for resentencing.
DISPOSITION
Appellant's conviction of first degree murder is reduced to second degree murder. The case is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
FLIER, J. WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.