People v. Carter CA2/4 ( 2014 )

Filed 1/28/14 P. v. Carter CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B244364
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. SA078887)
v.
CHAVIS DAVID CARTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles, Kathryn
A. Solorzano, Judge. Affirmed.
Dale E. Manolakas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr. and Nima Razfar, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Chavis David Carter challenges his convictions for robbery and
grand theft. He contends the trial court contravened his statutory right to a speedy
trial, admitted identification evidence based on an unduly suggestive photographic
lineup, and imposed an improper sentence. We reject his challenges and affirm.
RELEVANT PROCEDURAL HISTORY
On November 2, 2011, an information was filed, charging appellant in count
1 with grand theft (Pen. Code, § 487, subd. (c)), and in count 2 with robbery (Pen.
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Code, § 211). Accompanying the charges were allegations that appellant had
suffered a prior felony conviction constituting a serious felony (§ 667, subd.
(a)(1)) and a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12,
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subds. (a)-(d)). Appellant pleaded not guilty and denied the special allegations.
A jury found appellant guilty as charged. On September 21, 2012, after
appellant admitted his prior felony conviction, the trial court imposed a cumulative
sentence of 11 years, comprising an 11-year term on count 2 and a concurrent 16-
month term on count 1. On September 27, 2012, the court recalled the sentence on
its own motion upon discovering that the Three Strikes law required the
imposition of a consecutive sentence on count 1. The court re-sentenced appellant
to a total term of 11 years, 8 months. This appeal followed.
1
All further statutory citations are to the Penal Code, unless otherwise indicated.
2
On March 15, 2012, after appellant initially entered his plea, the prosecution
announced that it was unable to proceed, and the trial court granted appellant’s motion to
dismiss the action. Pursuant to a stipulation of the parties, appellant was re-arraigned on
the same information.
2
FACTUAL BACKGROUND
A. Prosecution Evidence
1. Robbery (Count 2)
On September 30, 2011, Jane Pak parked her car on Robertson Boulevard
near Pico Boulevard in order to shop at a Walgreen’s store. As she walked toward
the store’s entrance, she saw appellant leaning against the store’s exterior wall.
Appellant then walked across her path and looked at her as she entered the store.
After 15 to 20 minutes, Pak left the store. When she checked her cell phone
for voice mails, someone approached her from behind and seized her phone and
hair, tearing clumps of hair from her scalp. She recognized her assailant as
appellant on the basis of his green shirt and a view of him in her peripheral vision.
Appellant ran with her phone to a bicycle propped up at a bus bench, and rode
away. Shortly afterward, Pak called 911.
Pak told the investigating officers that her assailant was a black male
approximately six feet, two inches tall, weighing 180 pounds, and wearing a green
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jacket. Later, after appellant’s arrest, Pak identified him as her assailant in a six-
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pack photographic lineup.
3
Shortly after the incident, police officers drove Pak to the location of an individual
who had been detained. Pak told the officers that the detained individual was not her
assailant.
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Aaron Cohen was standing near the scene of the robbery when he heard Pak
scream. When he saw a man fleeing on a bicycle, he got into his car and followed the
man to a medical marijuana store, which the man entered. Cohen then returned to the
scene of the robbery, where he talked to investigating officers. At trial, Cohen described
the fleeing man as an African-American man approximately 6 feet tall, but did not
identify appellant as the man.
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2. Grand Theft (Count 1)
On October 1, 2011, Laurel Beck stood on a sidewalk on La Cienega
Boulevard, waiting for a ride. She was texting on her cell phone when she noticed
appellant riding on a bicycle toward her. As appellant passed her, he grabbed her
cell phone. Beck chased him, but could not catch him.
Dale Gardner and his brother-in-law were walking on La Cienega
Boulevard when an African-American man rode past him on a bicycle. Gardner
watched as the man grabbed Beck’s cell phone and she ran after him. When she
failed to catch him, Beck walked back in the direction of Gardner and his brother-
in-law. The two men met up with Beck, asked if she was ok, and then used one of
their cell phones to call 911, with both Gardner and Beck participating in the call.
Responding police officers soon saw appellant riding a bicycle in the
vicinity and detained him. Upon being detained, appellant said, “They’re saying I
robbed somebody.” Approximately 45 minutes after the incident, officers drove
Beck to appellant’s location for a field showup. Beck remained in the patrol car,
which was parked approximately 40 feet from appellant. She recognized appellant
and identified him as the person who took her cell phone.
According to Gardner, shortly after the incident, officers drove him to a
location for a field showup. Gardner remained seated in the patrol car while he
was shown a man in handcuffs, standing approximately 50 feet from the vehicle.
Gardner identified the man, based on his clothing, as the bicyclist who grabbed
Beck’s cell phone. At trial, Gardner testified that appellant was the man he
recognized during the field showup.
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B. Defense Evidence
Mitchell Eisen, a psychologist, testified regarding factors that affect the
reliability of eye witnesses. According to Eisen, a witness’s ability to recognize an
individual improves in proportion to the length of time the witness sees the
individual’s face. That ability is diminished by delays in making the
identification. In addition, witnesses often find it difficult to identify a person of a
different race.
Eisen also testified that circumstances related to identification procedures
may reduce their reliability. Field showups involving detainees in handcuffs may
encourage witnesses to identify them as “the bad guy.” Furthermore, photographic
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six-pack lineups discourage reliable identifications when an individual stands out.
Eisen opined that displaying an individual in a jail uniform would affect a six-
pack’s fairness. In addition, he opined that the manner in which the six-pack is
presented may influence a witness to select a particular individual.
DISCUSSION
Appellant contends that the trial court (1) violated his statutory right to a
speedy trial, (2) erroneously admitted Pak’s identification of him in a photographic
lineup, and (3) improperly imposed a more severe sentence after vacating his
original sentence. For the reasons discussed below, we reject his contentions.
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In addition to Eisen, appellant called Los Angeles Police Department Officer
Michael Tilden, who testified that during the field showup involving Gardner, appellant’s
bicycle was placed near appellant. Tilden stated that during the field showup, Gardner
said that he recognized appellant by his clothing, and that he recognized appellant’s
bicycle.
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A. Speedy Trial Right
Appellant contends the trial court contravened his statutory right to a speedy
trial by granting a continuance to permit Pak to testify.
1. Governing Principles
The Sixth Amendment of the United States Constitution guarantees the right
to a speedy trial, as does the parallel but independent provision in article I, section
15 of the California Constitution. (People v. Johnson (1980) 26 Cal. 3d 557, 562-
563 (Johnson).) Section 1382 interprets the state constitutional right to a speedy
trial in actions charging defendants with felonies, misdemeanors, and infractions.
(Johnson, supra, 26 Cal.3d at p. 561.) The statute provides that absent a showing
of good cause, defendants are entitled to a dismissal of the charges against them
when trial is not commenced within specified periods. (§ 1382, subds. (a)(2),
(a)(3).) In felony cases, the statute requires the defendant to be brought to trial
within 60 days of the filing of the information. (Johnson, supra, at p. 561; § 1382,
subd. (a)(2).)
Under section 1382, the trial court’s determination of good cause for a
continuance is reviewed for an abuse of discretion. (Johnson, supra, 26 Cal.3d at
p. 570.) As explained in Owens v. Superior Court (1980) 28 Cal. 3d 238, 250-251
(Owens), to obtain a continuance for purposes of securing a witness’s testimony,
the moving party must show: “‘(1) That the movant has exercised due diligence in
an attempt to secure the attendance of the witness at the trial by legal means; (2)
that the expected testimony is material; (3) that it is not merely cumulative; (4)
that it can be obtained within a reasonable time; and (5) that the facts to which the
witness will testify cannot otherwise be proven.’” (Quoting People v. Wilson
(1965) 235 Cal. App. 2d 266, 273.) Although section 1050 permits a trial court to
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consider “‘the general convenience and prior commitments of all witnesses’” in
ordering a continuance, the Owens factors must be satisfied when the continuance
implicates the defendant’s speedy trial right under section 1382. (Baustert v.
Superior Court (2005) 129 Cal. App. 4th 1269, 1279 (Baustert).)
2. Underlying Proceedings
On May 4, 2012, the date set for trial, appellant failed to appear for a
sufficient reason. Pak was present under a subpoena. The trial court proposed re-
setting the trial for May 11, day 57 of the 60-day statutory period. When the court
told Pak that she would probably testify between May 14 and May 17, Pak replied
that she had paid for a trip to the east coast from May 14 to May 19. After the
prosecutor proposed a continuance, the court set a hearing on the matter for May
7, and ordered Pak to remain “on call.”
On May 7, appellant’s counsel opposed the request for a continuance,
arguing that it would delay the trial beyond the 60-day period, and was sought
merely for Pak’s convenience. The court granted the request and set the trial for
May 21, noting the continuance was not lengthy and that section 1050 permitted it
to consider the convenience and prior commitments of witnesses. In finding good
cause for a continuance, the court stated: “Obviously, there was due diligence
because [Pak] was served and [was] present in the courtroom.”
3. Analysis
The focus of our inquiry is on the existence of due diligence, as the record
establishes the presence of the other Owens factors: Pak’s testimony was critical
to the prosecution’s case regarding the robbery charged in count 2, and the
continuance was relatively brief. Under section 1382, the fact that a key witness
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will be on vacation during the trial is not, by itself, good cause for a continuance.
(Baustert, supra, 129 Cal.App.4th at p. 1277.) When a material witness takes, or
plans to take, a vacation during the trial, the propriety of a continuance usually
hinges on whether the prosecution placed the witness under a subpoena. (Jensen
v. Superior Court (2008) 160 Cal. App. 4th 266, 270-275.) This is because “[a]
prosecutor who issues subpoenas is exercising the requisite due diligence in
securing the attendance of witnesses at trial, while a prosecutor who does not issue
subpoenas has not made sufficient effort to ensure their presence.” (Id. at p. 271.)
Our research has disclosed no published case addressing whether a
continuance is properly granted when the prosecutor places a witness under
subpoena, and then seeks a continuance to accommodate the witness’s pre-existing
travel plans without releasing the witness. Nonetheless, in cases in which a
witness was subpoenaed but took a vacation instead of appearing at trial, appellate
courts have repeatedly found good cause for a continuance on the ground that the
prosecutor exercised due diligence. The rationale underlying these holdings is that
it would be “unreasonable and unwarranted” to dismiss “the case of a litigant who
has no advance knowledge of a witness’ default . . . .” (Gaines v. Municipal Court
(1980) 101 Cal. App. 3d 556, 558-560 [finding good cause for continuance of trial
when police officer under subpoena took vacation during trial]; see Mendez v.
Superior Court (2008) 162 Cal. App. 4th 827, 835-836 [same]; Jensen v. Superior
Court, supra, 160 Cal.App.4th at pp. 270-275 [same].)
In contrast, in cases where the prosecution failed to place the witness under
a subpoena and sought a continuance, appellate courts have found a lack of due
diligence. (See Jensen v. Superior Court, supra, 160 Cal.App.4th at p. 271
[discussing cases].) Thus, in Baustert, the prosecutor subpoenaed a police officer
before trial, but voluntarily released him from the subpoena while seeking a
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continuance to allow him to take a vacation. When the trial court granted the
continuance, the appellate court reversed, concluding that no good cause had been
shown. (Baustert, supra, 129 Cal.App.4th at p. 1278; see also Cunningham v.
Municipal Court (1976) 62 Cal. App. 3d 153, 155-156 [no good cause shown when
prosecutor permitted officer to take vacation, rather than place him under
subpoena]; Pickett v. Superior Court (1970) 12 Cal. App. 3d 1158, 1162 [no good
cause shown when prosecutor permitted key witnesses to leave state, without
placing them under subpoena].)
We conclude the trial court did not abuse its discretion in continuing
appellant’s trial. To begin, the court properly found the existence of due
diligence. Generally, the prosecution is obliged only to use “reasonable efforts” to
procure a witness. (People v. Cummings (1993) 4 Cal. 4th 1233, 1298.) Here, the
prosecutor placed Pak under a subpoena before trial, and never released her from it
while seeking the continuance. The prosecutor thus made sufficient efforts to
secure Pak’s appearance at trial, regardless of whether the continuance was
granted or denied.
Nor do we see any abuse of discretion in the court’s determination that there
was good cause for a continuance. In cases implicating the defendant’s statutory
speedy trial right, the court may consider the witness’s prior commitments,
provided the Owens factors are satisfied (see pt. A.1. ante). As noted, those
factors were present here. Moreover, if the continuance had been denied, the
prosecutor would in all likelihood have been entitled to a continuance during the
trial, had Pak taken her vacation despite the subpoena. To avoid the uncertainties
attending such an interruption in the trial, the court reasonably ordered a brief
continuance. In sum, the trial court did not contravene appellant’s statutory
speedy trial right in ordering the continuance.
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B. Photographic Lineup
Appellant contends the trial court erred in admitting Pak’s identification of
him in a photographic six-pack lineup. He argues that the six-pack was unduly
suggestive because he was the only individual shown wearing blue jail inmate
clothing.
1. Governing Principles
“In order to determine whether the admission of identification evidence
violates a defendant’s right to due process of law, we consider (1) whether the
identification procedure was unduly suggestive and unnecessary, and, if so, (2)
whether the identification itself was nevertheless reliable under the totality of the
circumstances, taking into account such factors as the opportunity of the witness to
view the suspect at the time of the offense, the witness’s degree of attention at the
time of offense, the accuracy of his or her prior description of the suspect, the
level of certainty demonstrated at the time of the identification, and the lapse of
time between the offense and the identification. [Citations.]” (People v.
Cunningham (2001) 25 Cal. 4th 926, 989.) An identification is constitutionally
unreliable only when the answer to the first question is, “[Y]es,” and the answer to
the second question is, “[N]o.” (People v. Gordon (1990) 50 Cal. 3d 1223, 1242,
overruled on another point in People v. Edwards (1991) 54 Cal. 3d 787, 835.) We
review the trial court’s findings of historical fact under a deferential standard, but
determine independently whether the pretrial identification procedure was unduly
suggestive. (People v. Kennedy (2005) 36 Cal. 4th 595, 608-609, disapproved on
another ground in People v. Williams (2010) 49 Cal. 4th 405, 459.)
“Generally, a pretrial procedure will only be deemed unfair if it suggests in
advance of a witness’s identification the identity of the person suspected by the
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police. [Citation.] However, there is no requirement that a defendant in a lineup,
either in person or by photo, be surrounded by others nearly identical in
appearance. [Citation.] Nor is the validity of a photographic lineup considered
unconstitutional simply where one suspect’s photograph is much more
distinguishable from the others in the lineup. [Citations].)” (People v. Brandon
(1995) 32 Cal. App. 4th 1033, 1052.)
2. Underlying Proceedings
Appellant’s trial was initially assigned to Judge Edward B. Moreton, Jr.
Prior to trial, appellant sought to suppress Pak’s identification, arguing that he was
the only person shown in “county blues” in the six-pack. After examining the six-
pack, Judge Moreton concluded that the six-pack and Pak’s identification were
admissible. Judge Morton noted that the six-pack showed appellant wearing a
blue top with no numbers. Judge Moreton also observed that four of the other five
individuals wore white or black t-shirts, and the remaining individual was
shirtless. Although Judge Moreton recognized appellant’s top as jail clothing due
to his familiarity with jail inmates, he saw nothing in appellant’s photo that might
signal to a “regular person” that appellant was in jail.
At trial, Pak testified that she saw appellant before she entered the
Walgreen’s store. Although Pak initially stated that she did not see her assailant’s
face, she later clarified that she saw it in her peripheral vision. Pak further
testified that before she viewed the photographic lineup, she was told that police
officers had arrested a suspect, whose photo might or might not be included in the
six-pack. When Pak identified appellant as her assailant, she made the following
explanatory statement: “I chose [appellant’s photo] because I recognize[d] his
eyes and I recall[ed] the facial features. I briefly made eye contact with him.
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While he was attacking me, we were in very close proximity. . . .” According to
Pak, she had never heard the term “county blues.” Moreover, when Pak was asked
which colors she associated with jail uniforms due to films or documentaries, she
replied, “[o]range” and “black-and-white striped.”
After Pak testified, Judge Moreton was injured in an accident, and
appellant’s trial was reassigned to Judge Katherine Solorzano. When Eisen
testified as an expert witness, defense counsel sought leave to ask Eisen whether
the six-pack that Pak viewed was “inherently suggestive” due to appellant’s jail
attire. Judge Solorzano rejected the request, concluding that appellant’s blue top
bore no indications that it was jail clothing.
3. Analysis
We find dispositive guidance regarding appellant’s contention from People
v. Carter (2005) 36 Cal. 4th 1114 (Carter) and People v. Gonzalez (2006) 38
Cal. 4th 932 (Gonzalez). In Carter, the defendant argued that the six-pack was
unduly suggestive because he was the sole person wearing an orange shirt that
resembled a “‘jail jumpsuit,’” and only his photo was of “‘booking-photograph
quality.’” (Carter, supra, 36 Cal.4th at p. 1162.) Our Supreme Court rejected the
contention, concluding that the six-pack showed similar looking individuals
wearing shirts of different types, and that nothing in the defendant’s photo
identified his shirt as an inmate’s uniform. (Id. at pp. 1162-1163.)
In Gonzalez, the defendant maintained that the six-pack was unduly
suggestive because he was the only individual wearing “‘gang type’” clothing, he
was shown with a “‘droopy eye,’” and his photo was discolored. (Gonzalez,
supra, 38 Cal.4th at p. 943.) After the trial court admitted the identification based
12
on the six-pack, our Supreme Court affirmed, concluding that nothing in the six-
pack suggested that the defendant should be selected. (Ibid.)
We reach the same conclusion here. The photographic lineup Pak viewed
shows six similar looking individuals, five wearing t-shirts or tops, and one bare
chested. No feature of appellant’s top identifies it as part of a jail uniform: it is
distinguishable from the other individuals’ t-shirts only with respect to its color,
looser fit, and slightly deeper neckline. In our view, nothing in the six-pack
improperly highlights appellant or is unduly suggestive.
Appellant also maintains that the six-pack was unduly suggestive because it
permitted Pak to choose appellant by an improper process of elimination. He
argues that because she did not see her assailant’s face directly, she relied on some
dissimilarities among the individuals in the six-pack and on the fact that appellant
was shown in a jail uniform. Appellant notes that after the robbery, Pak told
officers that her assailant had a dark complexion and hair an inch and a half long.
Because the only dark complected person in the six-pack other than appellant had
braided hair and did not wear jail clothing, appellant contends the six-pack
“marked [him] for identification.”
Because appellant failed to raise this contention in seeking to exclude Pak’s
identification before the trial court, he failed to preserve it for appeal. Moreover,
we would reject it were we to address it. Although Pak appeared initially to deny
that she saw her assailant’s face, she later clarified that she saw it in her peripheral
vision. In addition, Pak testified that she was told that the six-pack might or might
not depict the person in custody, that she was unaware that jail inmates wore blue,
and that she recognized appellant on the basis of his eyes and facial features.
Accordingly, viewed in the light most favorable to the judgment, the facts
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surrounding Pak’s identification disclose no denial of due process. In sum, the
trial court did not err in admitting Pak’s identification of appellant.
C. Re-Sentencing
Appellant contends the trial court erred in imposing a greater sentence after
vacating his original sentence. He argues that the modified sentence contravened
the double jeopardy provision of the California Constitution (Cal. Const., art. I.,
§ 15). We disagree.
Generally, trial courts may vacate a legally unauthorized sentence to correct
sentencing error. (People v. Reyes (1989) 212 Cal. App. 3d 852, 857.) Here, the
trial court initially imposed a total sentence of 11 years, after denying appellant’s
motion to strike his prior “strike,” for purposes of the Three Strike law. The court
identified as the principal count the robbery conviction (count 2), selected the
three-year middle term, doubled that term pursuant to the Three Strikes law
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and added a five-year enhancement
(§ 667, subd. (a)(1).) Regarding the conviction for grand theft (count 1), the court
selected the two-year middle term, reduced that term to eight months as a
subordinate term (§ 1170.1, subd. (a)), doubled it pursuant to the Three Strikes
law, and ordered it to run concurrently.
Later, the trial court vacated the original sentence, concluding that the Three
Strikes law mandated consecutive terms on the two counts (§§ 667, subd. (c)(6),
1170.12, subd. (a)(6)). In imposing a total sentence of 11 years and 8 months, the
court made no modification to the sentence for the robbery. However, the court
struck appellant’s prior strike for purposes of imposing a sentence for the grand
theft (People v. Garcia (1999) 20 Cal. 4th 490, 503-504), thereby reducing the
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term for that offense to 8 months, which the court ordered to run consecutively to
the term for the robbery.
We see no error in the modified sentence. Notwithstanding the double
jeopardy provision of the California Constitution, a trial court may properly
impose a more severe sentence when the original sentence was not legally
authorized. (People v. Reyes, supra, 212 Cal.App.3d at p. 857.) In People v.
Serrato (1973) 9 Cal. 3d 753, 764 (Serrato), disapproved on another ground in
People v. Fosselman (1983) 33 Cal. 3d 572, 583, footnote 1, our Supreme Court
explained that when a sentence is legally unauthorized, the guarantee against
double jeopardy does not bar the imposition of a proper sentence, “even though it
is more severe than the original unauthorized pronouncement.” Under the Serrato
rule, in correcting an unauthorized sentence, the trial court may exercise its
discretion when appropriate, even though the result is a longer sentence than that
originally imposed. (People v. Irvin (1991) 230 Cal. App. 3d 180, 190-193 [after
fashioning unauthorized sentence by staying enhancement, the trial court had the
discretion to correct the error by imposing or striking enhancement, as permitted
by governing statute].)
In view of Serrato, the trial court properly imposed consecutive terms on
appellant’s offenses and exercised its discretion to reduce the term for the grand
theft. It is well established that the double jeopardy guarantee does not bar a court
from correcting the type of error present in appellant’s unauthorized sentence,
namely, the failure to impose mandatory consecutive terms. Indeed, in Serrato,
the Supreme Court illustrated the rule it set forth by pointing to In re Sandel
(1966) 64 Cal. 2d 412, 417-419, a case in which the Supreme Court rectified an
error of precisely that type. (Serrato, supra, 9 Cal.3d at p. 764.)
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Appellant’s reliance on People v. Torres (2008) 163 Cal. App. 4th 1420
(Torres) and People v. Mustafaa (1994) 22 Cal. App. 4th 1305 (Mustafaa) is
misplaced. In each case, the trial court imposed an unauthorized sentence in
which the error had the effect of enhancing the length of the sentence. (Torres,
supra, 163 Cal.App.4th at pp. 1432-1433; Mustafaa, supra, 22 Cal.App.4th at
pp. 1311-1312.) In remanding for re-sentencing, the appellate court directed the
trial court not to impose a total sentence more severe than the unauthorized
sentence. (Torres, supra, at pp. 1432-1434; Mustafaa, supra, at p. 1312.)
Here, in contrast, the error in the unauthorized sentence had the effect of
reducing the length of appellant’s sentence. In Torres and Mustafaa, the appellate
courts acknowledged that such errors may be corrected, even though the resulting
sentence is longer than the unauthorized sentence. (Torres, supra, 163
Cal.App.4th at pp. 1429-1432 [observing that under Serrato, Sandel, and other
cases, imposing a longer sentence is proper when the erroneous sentence
“demonstrated legally unauthorized leniency that resulted in an aggregate sentence
that fell below that authorized by law”]; Mustafaa, supra, 22 Cal.App.4th at
p. 1311 [noting that the Serrato rule encompasses unauthorized sentences
involving “the imposition of concurrent terms when the statute required
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consecutive terms”].)
In a related contention, appellant maintains the trial court abused its
discretion in resentencing him, arguing that the court erroneously believed that it
lacked the authority to reconsider its prior sentencing choices. We disagree. The
record establishes that the court correctly understood the scope of its discretion.
6
Because Torres and Mustafaa are factually distinguishable, we do not address
whether they were correctly decided.
16
At the re-sentencing hearing, the trial court observed that it had the
discretion to strike appellant’s strike with respect to one or both of appellant’s
offenses, for purposes of sentencing under the Three Strikes law. After hearing
argument from counsel, the court decided to strike the strike with respect to the
grand theft. However, the court declined to select the low term for the robbery,
stating, “I already made a very extensive record as to why . . . the [middle] term
was the appropriate way to go. [¶] I’m not going to reverse that now.” The court
also declined to strike the strike for other sentencing purposes under the Three
Strikes law, remarking that it would be “disingenuous . . . to restate things in order
to get to a particular number. [¶] We’re not supposed to . . . circumvent [the Three
Strikes] law in order to get to a number. . . . [¶] . . . . So I’m not going to d[o] that.
My record has been made. It will remain as I stated previously.” The record thus
discloses that the court declined to reconsider its prior discretionary decisions
because it believed they were well-founded. In sum, the trial court did not err in
imposing a longer sentence after vacating appellant’s original unauthorized
sentence.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
EDMON, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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