People v. Sellner , 192 Cal. Rptr. 3d 836 ( 2015 )

Filed 9/24/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B261487
(Super. Ct. No. 2011005319)
Plaintiff and Respondent, (Ventura County)
v.
JENNIFER ROSE SELLNER,
Defendant and Appellant.
Jennifer Rose Sellner appeals an order resentencing her to two years felony
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jail for receiving stolen property. (Pen. Code, § 496.) In 2014, appellant was sentenced
to eight months, one-third the two year midterm, in case number 2011005319, to be
served consecutive to a three year principal term sentence in case number 2014007685.
(§ 1170.1, subd. (a).) The trial court denied Proposition 47 relief in case number
2011005319 but granted a Proposition 47 petition in case number 2014007605 and
reduced the conviction on the principal term to a misdemeanor (§ 1170.18). Appellant
was "resentenced" to two years felony jail in case number 2011005319 awarded credit for
time served (i.e. 737 days), and was released from custody. Appellant contends that the
trial court could not lawfully "resentence" her to two years in case number 2011005319.
According to appellant, she should have been sentenced to eight months county jail. We
disagree and affirm.
Claimed Mootness
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All statutory references are to the Penal Code.
The Attorney General contends that the appeal is moot and should be
dismissed because the sentence has been deemed served. (See e.g., People v. Valencia
(2014) 226 Cal. App. 4th 326, 329.) We deny the motion to dismiss because the new
sentence affects the custody credits that can be applied to outstanding fines or fees. (§
2900.5, subd. (a) [$30 per day or more, in the discretion of the court imposing sentence];
see People v. Robinson (2012) 209 Cal. App. 4th 401, 406-407.) When appellant was
resentenced to two years felony jail, she was ordered to pay all fines and fees previously
imposed.
Jurisdiction To Resentence
Appellant's argument that the trial court lacked jurisdiction to resentence is
without merit. Section 1170.1, subdivision (a) creates an exception to the general rule
that jurisdiction ceases when execution of sentence begins. "[W]hen a defendant is
sentenced consecutively for multiple convictions, whether in the same proceeding or in
different proceedings, the judgment or aggregate determinate term is to be viewed as
interlocking pieces consisting of a principal term and one or more subordinate terms. (§
1170.1, subd. (a).) Section 1170.1, with certain exceptions, also places certain
restrictions on the sentencing judge's discretion such as limiting the term of imprisonment
for a subordinate term to no more than one-third the middle term of imprisonment for
such conviction . . . . " (People v. Begnaud (1991) 235 Cal. App. 3d 1548, 1552.)
Here the eight month sentence was a subordinate consecutive term to the
three-year sentence in case number 2011005319. Based on the Proposition 47
modification of the principal sentence, the trial court not only was vested with
jurisdiction to resentence in case number 2014007685, it was required to do so. (People
v. Begnaud, supra, at p. 1552; People v. Bustamante (1981) 30 Cal. 3d 88, 104, fn. 12.)
Appellant was not strictly "resentenced" but, instead, ordered to serve the sentence
originally imposed, two years county jail.
Appellant claims that the increased sentence presents a jeopardy issue
because appellant has been subjected to a sentence greater than originally imposed. Were
one to put horse blinders on and view only the sentence in case number 2011005319,
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appellant would be correct. We must, however, look at the big picture. The initial
aggregate sentence was three years and eight months. Two years is less than that and
thus, appellant received a lesser sentence. When the principal term is no longer in
existence, the subordinate term must be recomputed. That is the case here. As long as
the recomputed term is less than the prior aggregate term, the defendant has not been
punished more severely for the successful filing of a Proposition 47 petition.
Section 1170.18, subdivision (e) provides: "Under no circumstances may
resentencing under this section result in the imposition of a term longer than the original
sentence." It does not trump section 1170.1, subdivision (a) or govern aggregate
consecutive sentences which are treated as interlocking pieces. (People v. Begnaud.
supra, 235 Cal.App.3d at p.1552,)
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Gilbert Romero, Judge
Superior Court County of Ventura
______________________________
Stephen P. Lipson, Public Defender and Michael C. McMahon, Chief
Deputy, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Harris, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.
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