People v. Rivera

• Decision Date: 21 June 1984
• Docket Number: Cr. 15730
• Citation: 157 Cal.App.3d 494,203 Cal.Rptr. 722
• Parties: The PEOPLE, Plaintiff and Appellant, v. Richard Raul RIVERA, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 722

203 Cal.Rptr. 722

157 Cal.App.3d 494

The PEOPLE, Plaintiff and Appellant, v. Richard Raul RIVERA, Defendant and Respondent.

Cr. 15730.

Court of Appeal, Fourth District, Division 1, California.

June 21, 1984.

Hearing Denied Sept. 13, 1984.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and Josephine A. Kiernan, Deputy Dist. Attys., for plaintiff and appellant.

Charles M. Sevilla and Cleary & Sevilla, San Diego, for defendant and respondent.

BUTLER, Associate Justice.

Richard Raul Rivera pays his third visit to this court. The first time, we affirmed his convictions for assault with intent to commit murder with enhancing allegations and first degree burglary (People v. Rivera (1981) 127 Cal.App.3d 136, 179 Cal.Rptr. 384). The second time, we agreed with him the court failed to consider the Board of Prison Terms' determination Rivera's sentence of ten years and four months (six years for the assault, three years for the great bodily injury enhancement and a sixteen-month consecutive sentence for the burglary) was disparate, i.e., the burglary sentence should have been concurrent, not consecutive. The Supreme Court ordered our opinion on that appeal depublished (People v. Rivera (1983) 141 Cal.App.3d 1001). The depublished opinion continues to be the law of the case. (Cal.Rules of Court, rule 977(b).)

This time around, Rivera is the respondent. The People now appeal his resentence on the burglary conviction to be concurrent and not consecutive with the assault and enhancement for a total of nine years. The People contend the court failed to exercise its independent judgment and simply reduced in robot fashion the sentence to conform with the Board's views.

I

We address appealability by the People of the resentencing, having earlier in our depublished opinion upheld Rivera's right to appeal the court's finding the sentence was not disparate (People v. Rivera, supra, 141 Cal.App.3d 1001).

Upon our remand to consider Rivera's sentence and consistent with the procedural requirements of Penal Code section 1170, subdivision (f)(1), ¹ the court scheduled a hearing, recalled the previously ordered sentence and commitment order, and resentenced Rivera on the burglary conviction to a term concurrent with the assault and enhancement sentences.

The right of the People to appeal in criminal cases is limited to the circumstances set out in section 1238 (People v. Drake (1977) 19 Cal.3d 749, 754, 139 Cal.Rptr. 720, 566 P.2d 622). Here, the People claim their right to appeal under section 1238, subdivision (a)(5), as well as subdivision (a)(6).

II

Section 1238, subdivision (a)(5), provides:

"(a) An appeal may be taken by the people from any of the following:

"....

"(5) An order made after judgment, affecting the substantial rights of the people."

Section 1170, subdivision (f)(1), requires the court to schedule a hearing on the Board of Prison Terms' report of disparate sentencing. After the hearing, the court "may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if the defendant had not been sentenced previously" provided the new sentence is not greater than the initial sentencing.

The record does not inform concerning the procedure used by the court to schedule the hearing. We assume the court calendared the hearing on its own motion. People v. Herrera (1982) 127 Cal.App.3d 590, 596, 179 Cal.Rptr. 694, held a defendant could appeal an order denying a motion by the Board of Prison Terms to reduce a disparate sentence. Section 1237, subdivision 2, allows an appeal to be taken by a defendant "[f]rom any order made after judgment, affecting the substantial rights of the party." Herrera concluded the denial of the motion was an order affecting a substantial right of the defendant and thus appealable, reasoning the affected right "[is] to receive a sentence which is not disparate when compared to sentences received by other similarly situated convicts. Underlying this is appellant's right to liberty- --and to suffer only that deprivation of liberty which his crimes warrant." (Id., at p. 596, 179 Cal.Rptr. 694.)

The People here equate the language in section 1237, subdivision 2, "affecting the substantial rights of the party" with the wording of section 1238, subdivision (a)(5), "affecting the substantial rights of the people" and argue their affected substantial rights are to compel the court to follow sentencing rules, to exercise its discretion and act as a branch of government independent of the executive authority, i.e., the Board of Prison Terms; for failure so to act, a defendant posing a danger to society will be released before serving an appropriate term.

The argument overlooks what the court did. Here, an order did not issue. The court recalled Rivera's initial sentence and commitment and "resentenced" him as if he "had not been sentenced previously." (Section 1170, subd. (f)(1).) The resentence became the sentence and thus the judgment. (Stephens v. Toomey (1959) 51 Cal.2d 864, 869-870, 338 P.2d 182.) Orders made after judgment are appealable by the People. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63; People v. Minjarez (1980) 102 Cal.App.3d 309, 312, 162 Cal.Rptr. 292.) We conclude the appeal here, in effect, is from the judgment, is not from an order after judgment and is not permitted under section 1238, subdivision (a)(5). We need not address whether the grounds argued affect a "substantial right" of the People.

III

We turn to appealability under section 1238, subdivision (a)(6), which provides:

"(a) An appeal may be taken by the people from any of the following:

"...

"(6) An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense."

Having concluded the resentencing constituted a judgment, it is apparent subdivision (6) explicating "[a]n order" is not applicable. The imposition of the concurrent sentence did not modify a verdict or a finding by reducing the degree of the offense, the punishment imposed or modifying the offense to a lesser one. The resentencing was the imposition of sentence, a judgment. The People's reliance on People v. Gaines (1980) 112 Cal.App.3d 508, 169 Cal.Rptr. 381, as authorizing this appeal under section 1238, subdivision (a)(6), is misplaced. There, contrary to the mandate of section 667.5, subdivision (b), following a guilty plea the court failed to impose prior prison term enhancements on a sentence consecutive to a sentence imposed in another county. Gaines reasoned the failure to sentence...