People v. Savala

• Decision Date: 15 September 1983
• Docket Number: Cr. 12449
• Citation: 147 Cal.App.3d 63,195 Cal.Rptr. 193
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy F. SAVALA, Defendant and Appellant.

Page 193

195 Cal.Rptr. 193

147 Cal.App.3d 63

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy F. SAVALA, Defendant and Appellant.

Cr. 12449.

Court of Appeal, Third District, California.

Sept. 15, 1983.

Hearing Denied Nov. 25, 1983.

[147 Cal.App.3d 64] Robert F. Kane, Redwood City, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Charles P. Just and Shirley A. Nelson, Deputy Attys. Gen., for plaintiff and respondent.

BOSKOVICH ^*, Associate Justice.

After a jury trial defendant Rudy Savala was convicted of four counts of robbery Defendant was sentenced to 12 years and 4 months in prison. In People v. Savala (1981) 116 Cal.App.3d 41, 171 Cal.Rptr. 882, we affirmed the convictions. We found sentencing error, in that the trial court had included enhancements for the use of a firearm (Pen.Code, § 12022.5), in calculating the length of defendant's consecutive sentences, contrary to the decision in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396. We "remanded to the trial court with directions to set aside the sentence and to resentence defendant in accordance with People v. Harvey." (People v. Savala, supra, 116 Cal.App.3d at p. 62, 171 Cal.Rptr. 882.)

with special findings that he personally used a firearm in each robbery (Pen.Code, §§ 211, 12022.5), one count of assault on a police officer engaged in the performance of his duties (Pen.Code, § 245, subd. (b)), and one count of being a convicted felon in the possession of a concealable firearm (Pen.Code, § 12021). Defendant admitted he had suffered a prior felony conviction and prison term. (Pen.Code, § 667.5, subd. (b).)

On remand defendant was again sentenced to a total unstayed prison term of 12 years and 4 months. In resentencing the trial court stayed the service of the enhancements on the consecutive sentences, but increased the principal term from the middle term for robbery (3 years) to the upper term (5 years). ¹ Defendant appeals. He contends the trial court had no power on remand to increase the principal term from the middle to the upper term. He relies upon this court's remand and double jeopardy and due process principles. He further contends the trial court erred in considering multiple victims as a factor justifying consecutive sentences. We find no error and shall affirm the judgment.

I IMPOSITION OF THE UPPER BASE TERM

Initially we reject defendant's contention that the resentencing violated our prior decision in People v. Savala, supra, 116 Cal.App.3d 41, 171 Cal.Rptr. 882. By our order in that appeal we directed the trial court to set aside the original sentence and to resentence defendant. (Id., at p. 62, 171 Cal.Rptr. 882.) Had we concluded that the only possible remedy was to strike the invalid portion of the sentence we would have simply modified the judgment and affirmed as modified. In remanding the cause we left open to the trial court's discretion the decision whether the invalid portion of the sentence infected other portions. We thus find no impediment to the resentencing in our previous decision.

We must consider defendant's contention that resentencing was legally improper. Defendant's situation is not unique. The complex provisions of the Determinate Sentencing Act (DSL) have frequently required appellate clarification of their meaning. (See People v. McCart (1982) 32 Cal.3d 338, 340, 185 Cal.Rptr. 284, 649 P.2d 926.) In interpreting the provisions of the DSL under which defendant was originally sentenced in a manner which resulted in our remand in the first appeal, the Supreme Court conceded "the question is close and subtle." (People v. Harvey, supra, 25 Cal.3d at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.) And the Legislature has since declared that the decision in Harvey was an erroneous interpretation. (Stats.1980, ch. 132, § 1, subd. (c).) Under such circumstances It is well established under both state and federal authorities that where a trial court has imposed an unauthorized and therefore illegal sentence the sentence may be set aside judicially and is no bar to the imposition of a proper judgment even though it is more severe than the prior unauthorized sentence. (In re Ricky H. (1981) 30 Cal.3d 176, 191, 178 Cal.Rptr. 324, 636 P.2d 13; People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289. See also Bozza v. United States (1947) 330 U.S. 160, 166-167 [67 S.Ct. 645, 648-649, 91 L.Ed. 818, 822].) And where a defendant has successfully appealed from a judgment the United States Supreme Court "has resisted attempts to extend [double jeopardy] to sentencing. The imposition of a particular sentence usually is not regarded as an 'acquittal' of any more severe sentence that could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. [Citations.]" (Bullington v. Missouri (1981) 451 U.S. 430, 437-438, 101 S.Ct. 1852, 1857-1858, 68 L.Ed.2d 270, 278. See also United States v. DiFrancesco (1980) 449 U.S. 117, 133, 101 S.Ct. 426, 435, 66 L.Ed.2d 328, 343; North Carolina v. Pearce (1969) 395 U.S. 711, 719, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656, 666.) ² The California Supreme Court has agreed that a defendant may be resentenced after a successful appeal, however, the court has imposed a limitation that the defendant not be sentenced to a punishment in excess of his original sentence. (People v. Hood (1969) 1 Cal.3d 444, 459, 82 Cal.Rptr. 618, 462 P.2d 370; People v. Henderson (1963) 60 Cal.2d 482, 496-497, 35 Cal.Rptr. 77, 386 P.2d 677.)

it is not at all uncommon for a trial court to impose an aggregate sentence intended as appropriate total punishment under all of the circumstances, only to discover after an appeal by the defendant that a portion of the sentence is infected by illegality.

Defendant recognizes that his total aggregate sentence on remand did not exceed his total aggregate sentence in the first judgment. However, he perceives himself as having been sentenced in the first instance to a series of separate and independent terms and he asserts that illegality in respect to a portion of his total prison term did not affect the other portions. In defendant's view the trial court could only cure the illegality by striking the illegal portions of his sentence and could not reconsider the other portions of his total sentence.

The Courts of Appeal have not been entirely consistent in the relief granted where a portion of a total aggregate term is determined to be illegal. A number of decisions have indicated that the trial court may reconsider the entire sentence. (See People v. Alvarado (1982) 133 Cal.App.3d 1003, 1029, 184 Cal.Rptr. 483; People v. Gutierrez (1980) 109 Cal.App.3d 230, 233, 167 Cal.Rptr. 162; People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 489, 148 Cal.Rptr. 698.) On the other hand, in People v. Espinoza (1983) 140 Cal.App.3d 564, at page 567, 189 Cal.Rptr. 543, the court said: "We decline to remand. The judge exercised his discretion to impose the middle base term. This was a proper exercise of discretion. That the judge may have labored under a mistake of law about the number of permissible enhancements furnishes no basis to undo a sentence which was properly imposed."

Defendant's contention must be resolved through consideration of the nature of an aggregate term of imprisonment. In this regard we note that under the indeterminate sentencing law (ISL) the contention that consecutive prison terms were a series The decisional authorities have assumed a prison term under the DSL is a single term rather than a series of separate terms. (See People v. McCart, supra, 32 Cal.3d at p. 343, 185 Cal.Rptr. 284, 649 P.2d 926; In re Clawson (1981) 122 Cal.App.3d 222, 224, 175 Cal.Rptr. 732; People v. Carter (1980) 104 Cal.App.3d 370, 372, 163 Cal.Rptr. 475.) This is in accordance with statutory language which provides for an "aggregate term of imprisonment," and which defines a prior separate prison term as "a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes ...." (Pen.Code, §§ 1170.1, subd. (a) and 667.5, subd. (g).)

                of independent terms was consistently rejected:  "... a [147 Cal.App.3d 68] prisoner confined under consecutive sentences must be regarded as undergoing a single, continuous term of confinement rather than a series of distinct, independent terms."  (In re Cowen (1946) 27 Cal.2d 637, 643-645, 166 P.2d 279;  see also In re Byrnes (1948) 32 Cal.2d 843, 850-851, 198 P.2d 685;  In re Park (1976) 63 Cal.App.3d 963, 967-968, 134 Cal.Rptr. 170;  In re Allen (1965) 239 Cal.App.2d 23, 24-25, 48 Cal.Rptr. 345.)   We must consider whether this established rule was changed by the adoption of determinate sentencing (DSL)
                

The legal interdependence of the components of an aggregate sentence cannot be denied in view of the numerous provisions of the Penal Code tying the components to each other. (E.g., Pen.Code, § 1170.1, subd. (a).) Indeed, it was the legal interdependence of the components of defendant's original sentence which entitled him to a remand for resentencing after his first appeal. (People v. Savala, supra, 115 Cal.App.3d at p. 45, 171 Cal.Rptr. 882.)

Not only are the components of an aggregate term interdependent for purposes of calculation of the aggregate term, they are also interdependent for purposes of imposition. A court simply does not sentence on various counts and enhancements independent of each other. For example, "[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed ...." (Pen.Code, § 1170, subd. (b).) This provision has been judicially construed to mean the sentencing court cannot impose an upper term by...