Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ct.No. FWV018708 Ingrid Adamson Uhler, Judge. Affirmed with directions.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch and Steve Oetting, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Jimmie Lee Oates appeals judgment following a jury trial, two previous appeals, review by the California Supreme Court, and remand for resentencing after the California Supreme Court reversed judgment solely as to enhancements imposed under Penal Code section 12022.53, subdivision (d). Defendant contends the trial court violated double jeopardy principles, as well as defendant’s due process rights, by resentencing defendant to consecutive rather than concurrent terms on counts 3, 4, and 6. We agree and order defendant’s sentence modified accordingly. As modified, the judgment is affirmed.
Unless otherwise noted, all statutory references are to the Penal Code.
1. Abbreviated Facts
Because the facts are not pertinent to this appeal, we incorporate our brief summary of facts stated in our previous decision in this case. (People v. Oates (Nov. 16, 2006, E037177) [nonpub. opn.], pp. 2-3.)
This case involves an attempt to kill rival gang members during a drive-by shooting. During the afternoon of September 11, 1999, Gustavo Barrera, Victor Mendoza, and Walter Ramirez, members of the North Side Ontario gang (NSO), entered East Side Ontario gang (ESO) territory. Mendoza got into a fistfight with an individual associated with the ESO, defendant’s gang. After the fight, the NSO members visited NSO member, Manuel Castrejon. Around 10:00 p.m., while Mendoza, Barrera, Castrejon, Ramirez, and Jose Gonzalez socialized outside Castrejon’s house, defendant and two companions drove by, fired two shots at the five NSO gang members, and sped off. Gustavo Barrera was shot in the leg, resulting in its amputation. No one else was injured. Shortly thereafter, California Highway Patrol officers pulled over defendant and his companions and arrested them.
2. Procedural Background
Following a jury trial, defendant was convicted of five counts of attempted premeditated murder, as to each of the five victims (counts 1, and 3 through 6) (§ 187, subd. (a)); mayhem (count 2), as to Barrera (§ 205); and possession of a firearm by a felon (count 8) (§ 12021, subd. (a)(1)). The jury also found true the enhancement allegations that a principal personally used and discharged a firearm, which caused great bodily injury (§ 12022.53, subds. (b), (c), & (d)), and that the offenses were committed to benefit a criminal street gang (§ 186.22, subd. (b)(4)). Defendant admitted the truth of the allegation that he had previously suffered a prior strike (§ 667, subds. (b)-(i), § 1170.12). The jury deadlocked on, and the court dismissed, the enhancement allegations that defendant personally inflicted great bodily injury under section 12022.7, subdivision (a) and discharged a firearm from a motor vehicle, causing great bodily injury (§ 12022.55).
Count 7 (evasion of an officer) was charged solely against a codefendant.
In 2001, the court sentenced defendant to an aggregate indeterminate prison term of 85 years to life plus a determinate term of 20 years (2001 sentence). Defendant appealed his convictions and sentence. This court affirmed the lower court judgment but modified the sentence by striking multiple section 12022.53, subdivision (d) enhancements. The California Supreme Court reversed solely as to the enhancements imposed under section 12022.53, subdivision (d), and remanded the case back to this court. (People v. Oates (2004) 32 Cal.4th 1048, 1069.) In accordance with the Supreme Court decision, this court issued a second opinion (People v. Oates (Aug. 31, 2004) E029354), opn. ordered nonpub., review dism. Apr. 19, 2006, S128181) in which we remanded the case to the trial court for resentencing consistent with the Supreme Court’s decision. (People v. Oates, supra, at p. 1069.)
Defendant petitioned for Supreme Court review of our second decision. Meanwhile, the trial court prematurely resentenced defendant while the case was before the Supreme Court. The trial court imposed consecutive, as opposed to concurrent sentences, as to counts 3, 4, and 6. Defendant appealed the resentencing and this court issued a third opinion reversing the 2001 sentence on the ground the trial court lacked jurisdiction to resentence defendant because the case was pending before the Supreme Court. (People v. Oates, supra, E037177.)
On April 19, 2006, the Supreme Court dismissed defendant’s petition seeking review of our second decision, in which we remanded the case to the trial court solely for resentencing in accordance with the Supreme Court’s decision in People v. Oates, supra, 32 Cal.4th at page 1069.
After remand to the trial court for resentencing, the trial court resentenced defendant on February 21, 2007 (2007 sentence). This is the order defendant now appeals. Rather than imposing concurrent sentences as to counts 3, 4, and 6, as the trial court had originally done, the trial court imposed consecutive sentences to these counts. As a consequence, defendant’s sentence was substantially increased from an aggregate indeterminate term of 85 years to life, to an aggregate indeterminate term of 195 years to life.
3. Discussion
Defendant contends, and the People agree, that the trial court’s imposition of a sentence in 2007, more severe than the initial sentence in 2001, due to imposing consecutive, instead of concurrent, terms on counts 3, 4, and 6, violated double jeopardy provisions of the state and Federal Constitutions, as well as defendant’s due process rights.
During sentencing in 2001, the trial judge explained that she was using her discretion to impose concurrent sentences as to counts 3, 4 and 6, “given the close temporal and spatial proximity of the defendant’s crimes against the same group of victims thereby indicating the crimes were committed on the same occasion and the fact that the defendant discharged a firearm twice and no other persons were injured, excluding Gustavo Barrera, . . .”
Defendant’s subsequent appeals in this case did not challenge or concern the trial court’s exercise of discretion in imposing concurrent sentences as to counts 3, 4, and 6, and the sentences were not unauthorized sentences. The trial court thus violated principles of double jeopardy by resentencing defendant in 2007, to consecutive rather than concurrent terms as to counts 3, 4, and 6, thereby increasing defendant’s sentence. (People v. Ali (1967) 66 Cal.2d 277, 281; People v. Brown (1987) 193 Cal.App.3d 957, 961-963.)
4. Disposition
The conviction is affirmed, but defendant’s sentence is ordered modified such that defendant’s sentences as to counts 3, 4, and 6, shall run concurrently, rather than consecutively. The judgment is affirmed in all other regards.
The trial court is directed to amend the abstract of judgment to reflect imposition of concurrent sentences on counts 3, 4, and 6, and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: Hollenhorst Acting P. J., Miller J.