People v. Jackson CA2/8 ( 2016 )

Filed 3/21/16 P. v. Jackson CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B259024
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA063472)
v.
MICHAEL JACKSON,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los Angeles County. Allen
Joseph Webster, Jr., Judge. Affirmed in part, reversed in part with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steve D. Matthews and
Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Michael Jackson appeals from his conviction on two counts each of armed robbery
and false imprisonment, contending that the trial court erred by imposing a sentence
greater than the one imposed before his successful appeal based on racially
discriminatory jury selection practices by the prosecutor. We agree that the trial court
erred and will order that the previous sentence be reinstated. We reject Jackson’s
contentions that the trial court erred by admitting evidence of a similar prior conviction or
by allowing the jury to hear the previous trial testimony of two witnesses who the trial
court found were unavailable for the latest trial.
FACTS AND PROCEDURAL HISTORY1
Through four previous trials the essential facts have remained unchanged. At
around 1:00 a.m. on June 19, 2001, Michael Jackson and an accomplice stole a truck
trailer containing around $30,000 in merchandise from Universal Warehouse in Carson
after pointing a gun at security guards Jose Barrera and Luni Tolai and then locking them
in the trunk of Barrera’s car. Jackson drove up to the guard shack in a truck tractor
posing as a driver who was there to pick up a trailer and, after entering the shack on the
pretext of looking for his paperwork, initiated the robbery.
The first trial ended with Jackson’s conviction on two counts each of armed
robbery (Pen. Code, § 211) and false imprisonment (Pen. Code, § 236) and a state prison
sentence of 133 years.2 We reversed the judgment in that case because the trial court
erred by allowing evidence that Jackson took part in seven uncharged warehouse
robberies in the 1980’s and 1990’s. (People v. Jackson (Sept. 29, 2003, B160746
[nonpub. opn.] (Jackson I).)
In 2004, a retrial ended with a mistrial and yet another retrial. At the first and
second retrials Jesus Herrera testified that he was a security guard at the Universal
1 Our statement of facts is based in part on our three previous decisions in this
matter, which we describe below.
2 All further undesignated section references are to the Penal Code.
2
Warehouse in 1994 when Jackson and another man robbed them at gunpoint. The second
retrial ended with another conviction on all four counts and a state prison sentence of
69 years. Jackson appealed again. We rejected his contention that the prosecutor
violated People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) by rejecting prospective
African-American jurors based on their race. However, we concluded that the trial court
should have stayed both false imprisonment sentences under section 654. We declined to
remand for resentencing because the prosecutor had waived the issue by not objecting to
the trial court’s lawful discretionary decision to run the two robbery sentences
concurrently. As a result, we reduced Jackson’s sentence to a combined total of 40 years
to life by ordering that the combined 29 year sentence for false imprisonment be stayed.
(People v. Jackson (Dec. 27, 2005, B177201) [nonpub. opn.] (Jackson II).)
In Jackson II, we rejected Jackson’s claim of Wheeler error by relying on the then-
current state of California law that did not permit a comparative analysis of the
prospective jurors for the first time on appeal. That rule changed in 2008 when our
Supreme Court decided People v. Lenix (2008) 44 Cal.4th 602. Jackson later filed a
habeas corpus petition in federal district court contending that we had misapplied federal
law. The district court agreed and ordered that Jackson be released within 90 days unless
we heard Jackson’s comparative juror analysis argument within that time frame. After
hearing Jackson’s argument, we reversed the judgment for Wheeler error and remanded
for further proceedings. (People v. Jackson (June 13, 2013, B177201) [nonpub. opn.]
(Jackson III).)
At the third retrial (fourth trial) the jury again convicted Jackson on two counts
each of armed robbery and false imprisonment. The trial court imposed a state prison
sentence of 75 years, in part by running the two robbery sentences consecutively while
staying the sentences on the two false imprisonment counts.3 Jackson appeals,
3 From the trial court’s statements and the abstract of judgment, the sentence
appears to have been calculated as follows: On each of counts 1 and 2, for the robberies
of Tolai and Barrera, indeterminate terms of 25 years to life pursuant to the Three Strikes
law (§§ 211; 1170.12(a)-(d), 667(b)–(i)), plus an additional and consecutive term of 10
3
contending the trial court violated the double jeopardy principles of our state’s
Constitution by imposing a higher sentence than he received as a result of the previous
trial. He also contends that the trial court erred by allowing evidence that he committed
an armed robbery of the same warehouse in 1994, and by allowing the jury to hear the
earlier trial testimony of Tolai, his 2001 robbery victim, and Jesus Herrera, the victim of
his 1994 robbery, after finding that those witnesses were not available.
DISCUSSION
1. The Trial Court Properly Found That Herrera and Tolai Were Unavailable
1.1 Applicable Law
Jesus Herrera testified at Jackson’s first and second 2004 retrials that he worked at
the Universal Warehouse as a security guard in October 1994 when Jackson and another
man detained him and two other guards at gunpoint, tied their hands, duct taped their
mouths, and then robbed the warehouse. Luna Tolai had testified at all three previous
trials and had identified Jackson as the 2001 robber each time. When the prosecutor was
unable to secure the attendance of either witness at the third retrial, the trial court found
that the witnesses were unavailable because the prosecutor had exercised due diligence in
attempting to secure their attendance, and allowed the jury to hear their previous trial
testimony. Jackson contends the trial court erred.
Although a defendant has the constitutional right to confront the witnesses against
him (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15), a witness’s previous trial
years for the firearm enhancement pursuant to section 12022.53(b). Counts 1 and 2 were
ordered to run consecutive to one another. On each of counts 3 and 4, for the false
imprisonment of Tolai and Barrera, indeterminate terms of 25 years to life pursuant to the
Three Strike law (§§ 236; 1170.12(a)-(d), 667(b)-(i)), plus an additional 4-year term for
firearm use enhancements pursuant to section 12022.5(a)(1). Counts 3 and 4 were
ordered to run concurrent to all other terms. Though each of these counts were
indeterminate terms, the trial court added only one five-year prior to the entire term, in
violation of People v. Williams (2004) 34 Cal.4th 397, 403-405. We address sentencing
in Part 3 of our Discussion.
4
testimony can be admitted if the witness is unavailable and if the defendant was a party to
the earlier action and had the right and opportunity to cross examine that witness. (Evid.
Code, § 1291; People v. Friend (2009) 47 Cal.4th 1, 67.) A person is unavailable as a
witness if the party seeking to introduce their earlier testimony used reasonable diligence
to secure their attendance but was unable to do so through the court’s process. (Evid.
Code, § 240, subd. (a)(5).)
Reasonable diligence in this context is the same as due diligence. (People v.
Fuiava (2012) 53 Cal.4th 622, 675.) Although there is no rigid definition of due
diligence, it suggests perseverance and untiring and earnest efforts of a substantial
character. (Ibid.) Relevant considerations include whether efforts to locate the witness
were timely, the importance of the witness’s testimony, and whether leads to his
whereabouts were competently explored. Because the facts surrounding the prosecutor’s
efforts to locate Herrera and Tolai are undisputed, our review is de novo and we
independently determine whether the prosecutor exercised the proper diligence to secure
the witnesses’ attendance at trial. (Ibid.)
A lack of diligence in securing a witness’s attendance usually involves perfunctory
or negligent efforts by the prosecutor. (People v. Bunyard (2009) 45 Cal.4th 836, 855.)
Diligence exists where the prosecutor’s efforts were “timely, reasonably extensive and
carried out over a reasonable period.” (Id.) That additional efforts might have been
made does not preclude a finding of diligence. (People v. Fuiava, supra, 53 Cal.4th at
p. 677.) The prosecution does not have to periodically check in on every material
witness. (People v. Friend, supra, 47 Cal.4th at p. 68.) However, the prosecutor must
take adequate steps to stop a witness from disappearing when he knows there is a
substantial risk the witness will flee. (Ibid.)
1.2 The Prosecutor’s Attempts to Locate Herrera
The trial court held a due diligence hearing regarding Jesus Herrera after jury
selection ended but before any evidence came in. Emilio Guerrero was the district
attorney’s investigator assigned to locate and subpoena witnesses for trial. On
5
August 12, 2013, Guerrero tried to serve a subpoena on Herrera, but was told that nobody
by that name lived at the address listed on the subpoena. An internet search located an
address in Anaheim, but that turned out to be a medical clinic. The employees of the
clinic did not know Herrera.
A DMV record search turned up a Corona address for Herrera. Another
investigator named Barragan went to that address on October 10, 2013, where he found
Herrera’s son. The son said Herrera lived at that address but was in Mexico and would
return around the end of that month. The son promised to give his father Guerrero’s
phone number and have his father call Guerrero after he returned. Guerrero also called a
phone number he had obtained for the Corona house and left a message asking Herrera to
call him back. Guerrero called twice more and was told that Herrera would return from
Mexico in late October.
The prosecutor then called the Corona house on October 15 and 16, 2013. He left
a message with the first call, then spoke with Herrera’s young grandson the next day.
The prosecutor gave the grandson his contact information and asked the boy to give
Herrera that information. Herrera called the prosecutor the next day, said he would be
back by October 30, and said the prosecutor should call him on November 1. The
prosecutor called on November 1, but was told by the grandson that Herrera was still in
Mexico. The prosecutor called again on November 4, 5, and 6, shortly before trial
commenced, and left messages each time when nobody answered.
1.3 The Prosecutor’s Attempts to Locate Luni Tolai
On November 8, 2013, soon after the prosecution began presenting evidence, the
trial court held a due diligence hearing concerning the prosecution’s efforts to secure the
attendance at trial of Luni Tolai, a victim of the 2001 robbery who had testified at the
three previous trials.
Testimony of FBI Agent Calarco
Christopher Calarco was an FBI agent in Los Angeles who had been a prosecution
witness in previous trials based on an incriminating phone call he received from Jackson
6
shortly after the 2001 robbery. The prosecutor contacted Calarco on October 16, 2013, to
let him know about the upcoming trial and to ask for help locating Tolai. Calarco
determined that Tolai was living in the Las Vegas area and asked FBI agent Burke of the
bureau’s Las Vegas office to track him down.
Burke located Tolai and spoke with him on October 17, 2013. Burke told Calarco
that Tolai was interested in cooperating and testifying at the new trial. Calarco relayed
this information to the prosecutor so that travel arrangements for Tolai could be made.
Calarco was told right before the new trial began that Tolai would testify, but was told on
November 5, 2013, as jury selection was underway, that Tolai had not boarded his
scheduled flight.
Calarco contacted Burke, who in turn contacted Tolai’s employers to enlist their
cooperation. Burke then overheard a phone conversation between Tolai and his
employers, although the contents of that call were not described. Tolai’s supervisors told
Calarco they understood the urgency of the situation and would tell Tolai that he was
obligated to testify and that he would not lose his job if he took time off to do so. Burke
then went to the address provided by Tolai’s employers but discovered the address did
not exist. Further efforts by Calarco and Burke to reach Tolai over the next three days
were unsuccessful.
Calarco testified that sometime between November 8 and 13 agent Burke located
Tolai at work. Tolai told Burke he had started a new job as a taxi driver and had been in
training the week before. He apologized for not keeping in contact. Calarco then called
Tolai and left a message. Tolai called Calarco on November 12 and said he had taken the
taxi driver job to augment his income, that he was scheduled to work that entire week,
that his family’s financial security was at stake, and that he would not come to Los
Angeles for the trial.
The Prosecutor’s Offer of Proof
At the due diligence hearing the prosecutor also provided his account of the efforts
made to have Tolai appear at trial. After learning that investigator Guerrero initially had
been unable to locate Tolai, the prosecutor called Calarco on October 16, 2013 to ask for
7
help. Later that day Calarco provided the prosecutor with a phone number for Tolai. The
prosecutor spoke with Tolai the next day. Although Tolai questioned why he needed to
testify yet again, he agreed to come so long as his travel expenses were paid. At that
point the trial was set to begin October 21, 2013, and the prosecutor told Tolai his flight
would be on October 22. At Tolai’s request, the prosecutor spoke with Tolai’s
supervisor, who agreed not to schedule Tolai for work from October 22-25.
The prosecutor notified Tolai when the trial was continued to October 31 and
confirmed with Tolai that he would fly to Los Angeles on November 5. The prosecutor
learned on the morning of November 5 that Tolai had not taken his scheduled flight.
Efforts were made to reach Tolai and inform him of other flights he could take. The
prosecutor left messages for Tolai over the next few days.
1.4 The Evidence Shows Due Diligence by the Prosecutor
Jackson contends the evidence shows a lack of due diligence by the prosecutor in
securing Herrera’s presence at trial because: nearly two months elapsed between the time
investigator Guerrero learned he had the wrong address for Herrera and his subsequent
and ultimately successful efforts to locate Herrera’s residence; the prosecutor made only
four phone calls to Herrera after he failed to return as promised on November 1; there
was no evidence that the prosecutor tried to find out what Herrera was doing in Mexico
or where he was living; there was no evidence the prosecutor offered to fly Herrera back
to Los Angeles; the prosecutor did not tell Herrera he needed to be back by a certain date;
and the prosecutor did not initiate the procedures available under a treaty with Mexico to
secure Herrera’s attendance.4
Jackson contends the prosecutor did not exercise due diligence as to Tolai
because: even though Tolai had agreed to fly to Los Angeles on November 5, once he
4 The Treaty on Cooperation Between the United States of America and the United
Mexican States for Mutual Legal Assistance, Sen. Treaty Doc. No. 100-13, eff. May 3,
1991, 27 I.L.M. 443 (the Treaty).)
8
failed to do so, the prosecutor erred by relying on Tolai’s supervisors to encourage him to
attend the trial; Calarco did not attempt to make personal contact with Tolai between
November 5 and 8 because he believed he had some “wiggle room”; and the prosecutor
should have immediately employed the Uniform Act to Secure the Attendance of
Witnesses from without the State in Criminal Cases. (§§ 1334-1334.6; Nev. Rev. Stat.,
§§ 174.395 – 174.445 (the Uniform Act).)5
We believe the prosecutor exercised due diligence. The starting point for our
analysis is that Herrera and Tolai had each willingly appeared when asked to testify at
previous trials. Given this, the prosecutor was neither obliged to keep tabs on them or
begin efforts to locate them at an earlier time. Once the prosecutor began his efforts, he
expended considerable diligence in trying to locate them. After he did, each man
promised to appear, with Tolai even agreeing to board a pre-arranged flight. Given
Tolai’s and Herrera’s past cooperation and their promises to appear at the fourth trial, the
prosecutor was not negligent in failing to invoke either the Uniform Act or the Treaty in
order to secure their attendance at trial. Neither was he obligated to offer to make travel
arrangements for Herrera, who, unlike Tolai, lived in the Los Angeles area and
presumably intended to return home regardless of the trial.
2. Evidence of Jackson’s Prior Warehouse Robbery Was Properly Admitted
Over Jackson’s objection, the trial court allowed Herrera and others to testify
about Jackson’s 1994 robbery of Universal Warehouse. The same issue was raised in
connection with Jackson II, where we rejected Jackson’s contentions that the evidence
was not proper identity evidence (Evid. Code, § 1101, subd. (b)) and, even if relevant,
was unduly prejudicial (Evid. Code, § 352).6 Jackson raises the same arguments he did
in Jackson II and acknowledges our ruling in that case, but asks that we consider the
5 The Uniform Act provides reciprocal procedures by which one state can seek the
assistance of another state to compel the attendance of a witness at trial.
6 In Jackson I, supra, we agreed with Jackson that admitting evidence of seven prior
uncharged robberies was unduly prejudicial under Evidence Code section 352.
9
issues again. Having reexamined our previous decision, we still find it persuasive. We
therefore set forth in full our holding on this issue in Jackson II and readopt it here.
“The court admitted as proof of appellant’s identity evidence that several years
earlier he had robbed the very same warehouse at issue here. To prove identity, the
similarity between a past crime and the current charged crime must be of the greatest
degree. (People v. Ewoldt (1994) 7 Cal.4th 380, 403; Evid. Code, § 1101, subd. (b).)
Appellant contends the court erred because the similarities between the earlier robbery in
1994 and the current offense, measured by the number and distinctiveness of features the
two crimes shared, was inadequate. (People v. Kipp (1998) 18 Cal.4th 349, 370.) During
the 1994 robbery, three security guards were on duty when three armed robbers, one of
whom was appellant, entered the guard shack. One robber took a guard to search for
cargo to steal while appellant and the second robber forced the other two guards to the
back of the property, where appellant ordered them to lie down and tied them up. In the
meantime, a fourth guard, unaware of the robbery, asked a robber on lookout duty
whether the robber was there for a cargo pick-up. The lookout pulled out his gun and
moved the guard to a cargo container, where he forced the guard to lie down.
“We review the court’s decision to admit evidence of the 1994 robbery for abuse
of discretion. (People v. Gordon (1990) 50 Cal.3d 1223, 1239, overruled on another
point in People v. Edwards (1991) 54 Cal.3d 787, 835.) Appellant argues the court
abused its discretion because despite the similarities between the robberies, the
differences between them were too important. (People v. Weathers (1969)
274 Cal.App.2d 232, 238-239 [dissimilarities can overcome similarities making evidence
inadmissible].) For example, the guards were not restrained the same way in both
robberies. In 1994, the robbers told the guards to lie down and tied them up. In the
robbery here, however, the robbers locked the guards in a car trunk. In addition, the 1994
robbers stole a truck and trailer from the warehouse; here, however, the robbers arrived
with a truck to which they attached the trailer they stole. The 1994 incident involved four
robbers; the robbery here involved two. Finally, appellant’s alleged role differed for each
10
crime. In 1994, he watched the guards, whereas here he posed as a truck driver arriving
for a pick-up.
“Despite the dissimilarities, the robberies shared a number of similarities. For
example, the robberies involved the same warehouse. (People v. Catlin (2001)
26 Cal.4th 81, 111; People v. Gordon, supra, 50 Cal.3d at p. 1240 [same victim is a
similarity].) Both robberies occurred in the early morning. Both sets of robbers tried to
catch the guards flat-footed with the ruse of one robber pretending to be a truck driver
arriving for a pick-up. By not wearing masks, the robbers tried to avoid alarming the
guards before the robbers could overpower them. The robbers herded the guards to a
more secure location and physically restrained them to ensure they did not interfere with
the robbery. Finally, when law enforcement located the stolen tractor trailers but had not
yet arrested anyone, appellant called the FBI to set up an alibi by pretending to be a
tipster reporting details of the robbery, including the robbers’ identities and the tractor-
trailer’s location. (People v. Ricketts (1970) 7 Cal.App.3d 441, 445-446 [similarity of
alibi or excuse admissible].) We find there were enough similarities to allow the court to
admit the 1994 evidence without abusing its discretion.
“Appellant finally contends that, regardless of the similarities between the two
crimes, evidence from 1994 was unduly prejudicial under Evidence Code section 352
because it was remote in time and showed his propensity to break the law. He asserts the
prejudice is especially strong when the other crime is the same type of offense as the
current one. (See U.S. v. Frederick (9th Cir. 1996) 78 F.3d 1370, 1376.)
“A trial court may exclude identity evidence if its prejudicial effect outweighs its
probative value. (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another
point by People v. Hill (1998) 17 Cal.4th 800, 823; Evid. Code, § 352.) We review the
court’s balancing of prejudicial and probative value for abuse of discretion. (People v.
Kipp (1998) 18 Cal.4th 349.) We find none here. The 1994 robbery was not the sort of
crime that inflames passions or creates an undue emotional response. (People v. Scheid
(1997) 16 Cal.4th 1, 19.) Moreover, the passing of time between it and the current
offense might have been relevant to striking it as a prior conviction if it were being used
11
to enhance his sentence (People v. Harris (1998) 60 Cal.App.4th 727, 739), or on the
issue of a testifying defendant’s credibility. (People v. Castro (1985) 38 Cal.3d 301, 37;
People v. Green (1995) 34 Cal.App.4th 165, 182.) However, appellant cites no authority
that a prior crime’s remoteness in time pertains when the earlier crime is offered not as a
sentence enhancement, but to prove his identity.”
We continue to adhere to our decision in Jackson II on this point and find no error
in admitting evidence of the prior robbery.
3. The Maximum Allowable Sentence Was 40 Years to Life
As a general rule, when a defendant successfully appeals a criminal conviction but
is convicted again after remand for a new trial, California’s constitutional prohibition
against double jeopardy precludes the imposition of more severe punishment on
resentencing. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 431 (Vizcarra).) The
rule advances two policies: (1) the state has no interest in preserving an erroneous
judgment; and (2) a defendant’s right to appeal is unreasonably impaired if he risks a
greater sentence on retrial. In short, a defendant should not be required to risk a greater
punishment on retrial for having exercised his right to appeal. (Ibid.)
There is an exception to this rule when a trial court imposes an unauthorized
sentence. Increased punishment following a successful appeal and a new trial is not a
penalty imposed on the appellant because of his appeal because correcting the judgment
would be required whenever the mistake was discovered regardless of whether the
defendant had appealed. (Vizcarra, supra, 236 Cal.App.4th at pp. 431-432.) A defendant
who successfully attacks a judgment that exceeds the trial court’s jurisdiction is not
necessarily entitled to employ that invalid judgment as a limitation on what the court may
do after a new trial. (People v. Serrato (1973) 9 Cal.3d 753, 765, disapproved on another
ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 2.) This rule protects the
People’s right to the imposition of lawful mandated sentences. (People v. Craig (1998)
66 Cal.App.4th 1444, 1449.)
12
A sentence that is not authorized by statute is illegal and does not preclude a
greater sentence. (People v. Brown (1987) 193 Cal.App.3d 957, 961.) For example, the
failure to impose mandatory enhancements makes a sentence unauthorized. (Ibid.) On
the other hand, where the sentence is authorized but the trial court errs in the manner of
sentencing, such as by failing to state the reasons for a sentencing choice, the sentence is
not unauthorized and does preclude the imposition of a greater sentence. (Id. at p. 962.)
Respondent asks us to affirm the trial court’s sentence in this case, which imposes
a 75-years-to-life sentence even though we ordered a 40-years-to-life sentence in Jackson
II. Respondent contends that the bar against increased punishment does not apply
because: in Jackson II the trial court had imposed an unauthorized sentence; the 40-
years-to-life sentence we ordered in Jackson II was imposed by this court, not the trial
court; that we should have instead remanded for resentencing; and, after the federal
district court conditionally granted Jackson’s habeas corpus petition, our decision in
Jackson III was an outright reversal of the judgment that had been on appeal in
Jackson II, effectively negating the 40-year sentence we ordered in that case. We
disagree.
While this case has a convoluted history, with four different sentences imposed
over the course of years, established precedent prohibits us from following the path
respondent asks us to take.
As we see it, it makes no difference that Jackson’s 40-year sentence was the
product of our decision in Jackson II and not initiated by the trial court. Once imposed,
that became his sentence. It was both lawful and authorized. Indeed, respondent does
not contend that our calculation of the sentence in Jackson II resulted in an unauthorized
sentence. Instead, she contends that in Jackson II we should have chosen to remand the
case to the trial court for resentencing rather than recalculate the sentence ourselves. In
retrospect, the currently comprised appellate panel agrees that may have been a more
prudent course. As respondent correctly notes, case law indicates that a trial court may
reevaluate the entire sentencing scheme anew and can reconsider its sentencing choices
after an appellate court determines its initial sentence was erroneous. (People v. Hill
13
(1986) 185 Cal.App.3d 831, 834.) Had the earlier panel chosen to remand, the trial court
might well have lawfully chosen to run counts 1 and 2 consecutively in light of the error
we pointed out in Jackson II – that counts 3 and 4 were inappropriately run consecutively
in violation of section 654. We do, however, pause here to note that though respondent
could have sought review by our Supreme Court on the point at that time, she did not,
and the sentence is therefore final.
Returning to respondent’s argument, the fundamental problem with her contention
is that she has failed to present any authority for the proposition that an appellate court’s
decision to recalculate an unauthorized trial court sentence in a lawful manner, rather
than remand the case to the trial court for resentencing, means the appellate court has
imposed an unauthorized sentence. In our independent research, we have not found any
authority for the proposition either. Whether the most prudent decision or not, by no
means did the prior panel calculate or impose an unauthorized sentence in Jackson II. In
a supplemental letter brief respondent acknowledges that the 40-year sentence was
legally authorized. This being the case, there is no unauthorized sentence for us to
correct now.
Last, we dispose of respondent’s argument that after the federal district court
conditionally granted Jackson’s habeas corpus petition, our decision in Jackson III was
an outright reversal of the judgment that had been on appeal in Jackson II, effectively
negating the 40-year sentence we ordered in that case. The decision in Jackson III that
reversed the judgment in Jackson II was solely the consequence of Jackson having
availed himself of another avenue for appellate review by way of his federal habeas
corpus petition. The effect was to initiate a new appeal on a legal issue unrelated to
sentencing, and a reversal of a judgment that included a lawful and authorized sentence.
Under the authorities we set forth in the initial portion of this section, Jackson may not be
punished for having sought habeas relief from that judgment, and the trial court’s
sentence of 75 years to life impermissibly increased his punishment in violation of our
state Constitutional prohibition against double jeopardy.
14
As a result, we will order that an amended abstract of judgment be prepared that
fully and accurately accounts for each component of Jackson’s sentence, including the
enhancements that were found true. With this in mind, we observe that on every count
where an indeterminate term is imposed the court must impose an additional and
consecutive sentence for all conduct and status enhancements. (People v. Williams,
supra, 34 Cal.4th at pp. 401-405; People v. Thomas (1997) 56 Cal.App.4th 396, 404;
People v. Anderson (1995) 35 Cal.App.4th 587, 596.) Enhancements are a separate
determinate sentence added in addition to each indeterminate sentence. (Anderson,
supra; People v. Ingram (1995) 40 Cal.App.4th 1397, 1411-1412, disapproved on other
grounds by People v. Dotson (1997) 16 Cal.4th 547; see also §§ 667, subd. (e) and
(e)(2)(B).) As a result, the abstract must reflect a sentence of 25 years to life on count 1,
the robbery of Tolai, with a consecutive 10 years for the firearm use enhancement
(§ 12022.53, subd. (b)) and a consecutive five years for the prior prison term
enhancement (§ 667, subd. (a)(1).) That is the 40-years-to life sentence which we
originally ordered and which must be imposed on remand. The sentences on the other
three counts should be imposed as follows: On count 2, the robbery of Barrera, a
sentence of 25 years to life, plus a 10-year (§ 12022.53, subd. (b)) and a five-year (§ 667,
subd. (a)(1)) enhancements fully consecutive to the base term in count 2. The term and
enhancements on count 2 should be ordered to run concurrent with count 1. Finally, on
each of counts 3 and 4, for the false imprisonments of Tolai and Barrera, a sentence of 25
years to life, plus a four-year gun use enhancement (§ 12022.5, subd. (a)) and a five-year
prior prison term enhancement (§ 667, subd. (a)(1)) with the sentences on counts 3 and 4
including enhancements stayed under section 654.7
7 In addition to improperly imposing sentence on count 2 consecutively to count 1
in derogation of Jackson II, we also point out that the abstract is incorrect in other
respects: (1) the abstract states that the sentences on Counts 3 and 4 are concurrent when
those sentences are to be imposed and stayed; (2) the 10-year enhancements on counts 1
and 2 incorrectly state they are imposed under section 12022.53(a)(1) when the correct
statute is section 12022.53(b); (3) the 4-year firearm enhancement for count 3 incorrectly
states that it is imposed pursuant to section 12022.53(a)(1) when it is properly imposed
15
DISPOSITION
The judgment is reversed as to the sentence only, and the superior court is directed
to amend the abstract of judgment to reinstate Jackson’s 40-years-to-life sentence we
ordered in Jackson II and make the other corrections to the abstract as set forth in the last
two paragraphs of our opinion. The superior court is to forward a corrected copy of the
abstract of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
under section 12022.5(a); (4) the 4-year enhancement for count 4 incorrectly states that it
is imposed pursuant to section 12022.5(a)(1) when it is properly imposed under section
12022.5(a).
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