Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA271564, Robert J. Perry, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Anthony J. Zelaya.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant, Angelo Roberts.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
STATEMENT OF THE CASE
This appeal arises out of a resentencing following a remand by this Court. Following a jury trial, appellants were convicted of first degree murder, in violation of Penal Code section 187, subdivision (a) (count I); attempted carjacking, in violation of sections 664 and 215, subdivision (a) (count 2); attempted second-degree robbery, in violation of sections 664 and 211 (count 3); two counts of second-degree robbery, in violation of section 211 (counts 5 and 6); and three counts of unlawful driving/taking of an automobile, in violation of Vehicle Code section 10851, subdivision (a) (counts 4, 8 and 9). Zelaya was convicted of one count of possession of a controlled substance, cocaine, in violation of Health and Safety Code section 11350, subdivision (a) (count 12). Roberts was convicted of being a felon in possession of a firearm, in violation of section 12021, subdivision (a)(l) (count 7); felony evading an officer, in violation of Vehicle Code section 2800.2, subdivision (a) (count 10); and possession of cocaine base for sale, in violation of Health and Safety Code section 11351.5 (count 11).
All further statutory references are to the Penal Code, unless otherwise indicated
See People v. Jones (May 15, 2008, B191254, B192451, B193068) [nonpub.opn.].
The jury found true that, as to all except three counts, that the crimes were committed for the benefit of a criminal street gang, in violation of section 186.22, subdivision (b)(l)(a) (counts 1-6, 8-12); that a principal personally used a firearm and caused great bodily injury or death, in violation of section 12022.53, subdivisions (d) and (e)(l) (counts 1-3); that a principal personally used a firearm, in violation of section 12022.53, subdivisions (b) and (e)(l) (counts 1-3, 5, 6); and that a principal (Roberts) personally and intentionally discharged a firearm, in violation of section 12022.53, subdivisions (c), (e)(l) (counts 1-3).
The trial court sentenced appellant Zelaya to an indeterminate term of 25 years to life in state prison plus a determinate term of 22 years. Roberts was sentenced to an indeterminate term of 50 years to life in state prison plus a determinate term of 23 years and 4 months. The trial court stayed imposition of the gang enhancement warranted by the true findings. (§ 186.22, subd. (b)(1).)
Pursuant to Roberts’s prior appeal, this Court affirmed the judgment but found sentencing error and remanded the matter for resentencing. The full list of sentencing errors were: (1) The trial court erred in staying sentence on three counts (counts 2, 3 and 7) under section 654, rather than imposing and then staying execution of judgment; (2) as to count 1, the court erred in simply staying imposition of the lesser gun enhancements under section 12022.53, subdivisions (b) and (c), instead of imposing the enhancements and staying their execution; (3) the trial court erred in staying sentence for gang enhancements found true as to counts 10 and 11 rather than imposing the enhancement or striking the additional punishment in compliance with section 186.22, subdivision (g); (4) as to count 6, the trial court erred in imposing the principal use enhancement (§ 12022.53, subds. (b) & (e)(1)) while staying the imposition of the personal use and gang enhancements (§§ 12022.53, subd. (b), 186.22, subd. (b)(1)(C)), thereby failing to retain discretion to impose the violent felony gang enhancement or strike the additional punishment in compliance with section 186.22, sudiv (g).
We directed the trial court to do the following: (1) as to counts 2 and 7, impose sentences and stay those sentences; (2) as to count 1, vacate its order staying the lesser 20 year (§ 12022.53, subd. (c)) and 10 year (§ 12022.53, subd. (b)) enhancements and enter a new order imposing these enhancements and then staying their execution; (3) as to count 6, vacate the order staying imposition of personal use and gang enhancements and enter new orders imposing the personal use enhancement and staying its execution, and exercising its discretion either to impose the 10 year violent felony (§ 186.22, subd. (b)(1)(C)) or to strike the additional punishment in compliance with subdivision (g) of section 186.22; (4) vacate the orders imposing a single $20 court fee and enter instead new orders imposing a $20 court security fee in the amount of $220 [eleven convictions]; (5) as to counts 10 and 11, vacate the order staying imposition of the gang enhancement and exercise its discretion either to impose a gang enhancement of two, three, or four years or to strike the additional punishment for the enhancement in compliance with subdivision (g) of section 186.22.
At resentencing for Roberts, the trial court complied with our directions. What is pertinent to this appeal is that the court chose not to strike the gang enhancement in the interests of justice per section 186.22, subdivision (g), thereby increasing Roberts’ sentence on count 6 by 10 years, from 15 to 25 years. Therefore, the total term imposed on remand was 50 years to life plus 33 years and 4 months. Roberts filed a timely notice of appeal.
Pursuant to Zelaya’s appeal, this Court affirmed the judgment but found sentencing error and remanded the matter for resentencing. This Court ordered that the trial court impose sentence on two counts (counts 2 and 3) and stay those sentences; that the trial court vacate its order staying imposition of the gang enhancement on three counts (counts 4, 8 and 9) and exercise its discretion either to impose a gang enhancement of two, three or four years or to strike the additional punishment for the enhancement in compliance with section 186.22, subdivision (g); and that the trial court vacate its prior order imposing a $20 court security fee and order imposition of a $180 fee.
See People v. Jones (May 15, 2008, B191254, B192451, B193068) [nonpub.opn.].
At resentencing for appellant Zelaya, the trial court complied with this Court’s order. Zelaya filed a timely notice of appeal.
DISCUSSION
1. Zelaya’s Appeal
At resentencing, the superior court clerk listed an unidentified 10 years under the section 3 enhancements on the indeterminate abstract of judgment as to count 1. This 10 year term does not square with the judgment the trial court pronounced at the resentencing hearing. Zelaya contends his abstract of judgment must be corrected to eliminate the erroneous 10-year enhancement.
After the case was remanded, the trial court imposed the same aggregate sentence that it originally imposed – 25 years to life plus 22 years. The court never mentioned a 10-year enhancement as to count 1. An abstract of judgment must conform to the trial court’s pronouncement of judgment. (People v. Boyde (1988) 46 Cal.3d 212, 256; People v Goodwin (1997) 59 Cal.App.4th 1084, 1094.) Moroever, when a discrepancy exists between the oral pronouncement of judgment and the minute order and abstract of judgment, the oral rendition generally governs. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Eberhardt (1986) 186 Cal.App.3d1112, 1116, fn.6.) In this case both the People and Zelaya have brought the nonformitity to our attention. The error is clerical and can be corrected at any time to make it reflect the true facts. (People v. Hartsell (1973) 34 Cal.App.3d 8, 13.) We elect to do so now.
2. Roberts’s Appeal
The question before us is whether the trial court violated Roberts’s constitutional rights against double jeopardy when, following its initial stay of imposition of the gang enhancement, it exercised its discretion and chose not to strike the gang enhancement, thereby increasing Roberts’s prison term by ten years. We conclude the court acted properly and affirm the judgment.
The double jeopardy provision of our state constitution (Cal. Const. Art I, § 15) protects defendants from receiving greater sentences following retrial after a successful appeal. (People v. Henderson (1963) 60 Cal.2d 482, 495.) As the Supreme Court pointed out in People v. Monge (1997) 16 Cal.4th 826, 843, the ability to impose a greater sentence would unreasonably impair a defendant’s right to appeal from an erroneous judgment. This rule also precludes courts from imposing a longer aggregate term after a remand for resentencing. (People v. Craig (1998) 66 Cal.App.4th 1444, 1448.)
However, there is no protection against receiving a greater punishment on resentencing if the original sentence was unauthorized by law. In this situation, the sentence may be set aside with no limit on the imposition of a lengthier sentence. In People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, our Supreme Court articulated the exception as follows: “The rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.”
In general, when a sentence is in excess of the court’s jurisdiction or in violation of law, it is considered unauthorized. (See People v. Scott (1994) 9 Cal.4th 331, 354, & fn. 17.) The trial court’s original decision to stay imposition of the gang enhancement was not authorized. In In re Renfrow (2008) 164 Cal.App.4th 1251, 1254, the court said that“‘[t]he failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction’ [citation], even if the correction results in a harsher punishment. [Citations.]” In People v. Bradley (1998) 64 Cal.App.4th 386, 390-391, cited in the Renfrow opinion, the court wrote that “The trial court had a duty to impose sentence in accord with the law. [Citations.] The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [citations.]”
In People v. Torres (2008) 163 Cal.App.4th 1420, the trial court imposed an aggregate sentence of seven years in an unauthorized manner. On remand, the court imposed a sentence of seven years to life. The seven-year aggregate sentence “could have been lawfully achieved” and “did not fall below the mandatory minimum sentence and was therefore not a legally unauthorized lenient sentence. The one unauthorized component of the sentence originally imposed by the court was not lenient – it was in fact more severe than that authorized....” (Id., at p. 1432.) The appellate court held that the trial court erred in imposing the harsher sentence and said that on remand, the court “may not impose a total sentence greater than seven years in prison. [¶] [The court] realize[d] that requiring the trial court to not impose a sentence of over seven years on remand will require the trial court to strike the gang enhancement... since imposition of the gang enhancement would mandate that defendant serve a sentence of seven years to life in prison. The trial court was allowed to strike the gang enhancements if it found unusual circumstances, which it did.” (Id., at p. 1433.)
Roberts contends that pursuant to People v. Torres, the trial court erred because the gang enhancement “choice” -- actually, a failure to make a choice -- was an unauthorized component of an overall legal sentencing scheme, and the court was able to correct it and impose the same or lesser total sentence. Roberts is mistaken. By failing to impose or strike the 10 year gang enhancement, the court produced a legally unauthorized leniency. This brings Roberts’s sentence under Serrato’s exception to the double jeopardy prohibition on imposing a longer sentence on remand. Indeed, not only did one appellate court reiterate this point in People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311, but the court provided several examples of unauthorized sentences including “the failure to strike or impose an enhancement.” (Ibid.) It follows that the trial court did not err by imposing the gang enhancement.
DISPOSITION
The 10-year enhancement is stricken from Zelaya’s abstract of judgment for count 1. The trial court is directed to issue an amended abstract of judgment without any reference to the 10-year enhancement and to forward a copy of the amended abstract of judgment to the Department of Corrections. The judgment against Roberts is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.