P. v. Carbajal CA2/5 ( 2013 )

Filed 7/31/13 P. v. Carbajal CA2/5
Opinion following remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B222615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA316526)
v.
VALENTIN CARBAJAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Larry P.
Fidler, Judge. Affirmed with directions.
Nancy J. King, 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 and Steven D. Matthews, Deputy
Attorney General, for Plaintiff and Respondent.
This case is on remand from the California Supreme Court. In a two-to-one
decision we previously applied double jeopardy principles and reversed the jury’s finding
that appellant committed sexual offenses against multiple victims within the meaning of
Penal Code section 667.61. The Supreme Court granted review, reversed our judgment,
and remanded the case. (People v. Carbajal (2013) 56 Cal.4th 521, 525-537.) In light of
the Supreme Court’s decision, we hold appellant’s retrial did not offend federal or state
double jeopardy doctrines and affirm the judgment as it pertains to the jury’s
enhancement finding. (See Arizona v. Washington (1978) 434 U.S. 497, 503; People v.
Anderson (2009) 47 Cal.4th 92, 104.)
There remains the issue of whether the abstract of judgment should be modified to
correct sentencing errors. The parties have submitted supplemental letter briefs on the
topic. A reviewing court has the authority to modify the abstract of judgment (Pen. Code,
§ 1260) but we agree with appellant the better approach is to remand the case to allow the
trial court to exercise its discretion.
Due to the fact that neither jury found the Penal Code section 667.61 allegation
applicable to count 10, the trial court incorrectly imposed a 15-year-to-life sentence for
that offense. The court must, therefore, select a determinate term for that offense. In
addition, depending on the independence of the events underlying the crimes, it is
possible that determinate terms were unauthorized for counts 2, 6, 7, 8, and 9. (See Pen.
Code, § 667.61, subd. (i); § 667.6, subd. (d); former § 667.61, subd. (g), amended by
Stats. 2011, ch. 361, § 5.) The court is to address whether determinate terms for those
offenses is authorized.
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The judgment of conviction is affirmed on all counts but the case is remanded for
resentencing consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR, J.*
We concur:
MOSK, Acting P. J.
KRIEGLER, 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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