People v. Vizcarra
236 Cal. App. 4th 422
| Cal. Ct. App. | 2015Background
- Defendant Juan Jose Vizcarra, a Chicali gang member, was convicted of (count 2) assault with a deadly weapon (§ 245(a)(1)) and (count 3) attempting to dissuade a witness (§ 136.1(a)(2)); acquitted of attempted murder (count 1).
- Jury found the count 2 gang enhancement true; court found a prior strike true and a prior serious felony for § 667(a)(1).
- At initial sentencing the court imposed an aggregate 15-year term (including doubling count 2 under Three Strikes and a consecutive 5‑year enhancement was omitted and count 3 was not doubled).
- On first appeal (Vizcarra I) this court held the original sentence was unauthorized for failing to impose the mandatory § 667(a)(1) enhancement and for failing to double count 3; it ordered imposition of the § 667(a)(1) enhancement and reversed count 3 sentence, remanding for limited resentencing to allow the trial court to exercise Romero/§ 1385(a) discretion as to the strike.
- On remand the trial court declined to strike the strike, doubled count 3 to four years, and imposed a total 22-year aggregate sentence (including the five-year § 667(a)(1) enhancement).
- This appeal challenges (1) legality of the increased 22-year sentence and (2) whether the trial court abused discretion at the limited resentencing.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Vizcarra) | Held |
|---|---|---|---|
| Legality of sentence increase after appeal | People argued original sentence was unauthorized; appellate correction could add mandatory enhancements, increasing aggregate term | Vizcarra argued Henderson/double jeopardy forbids a harsher sentence on remand because original 15‑year sentence was within authorized range | Court: Doctrines of collateral estoppel and law of the case bar relitigation; on merits Serrato exception allows correction of unauthorized sentence, so increase to 22 years lawful |
| Scope of resentencing on remand | People: Remand limited to correcting unauthorized components; trial court may exercise § 1385(a) on strike allegation for count 3 | Vizcarra: Trial court abused discretion by not performing a full sentencing analysis and by focusing only on doubling count 3 | Court: Remand was limited; trial court properly confined its decision to issues directed by appellate court and did not abuse discretion |
| Validity of failure at original sentencing to impose § 667(a)(1) enhancement | People: Failure made original sentence unauthorized and subject to correction on appeal | Vizcarra: Increase is penalizing him for appealing; original aggregate might have been permissible | Held: Established precedent (Dotson, Morales, Solórzano, etc.) treats omission of mandatory § 667(a)(1) as unauthorized sentence correctable on appeal |
| Proper correction of clerical errors in abstract of judgment | People: Abstract must reflect doubled terms for counts 2 and 3 | Vizcarra: (no successful dispute) | Held: Judgment affirmed; remanded to correct abstract to show count 2 = 8 years and count 3 = 4 years |
Key Cases Cited
- Henderson v. Superior Court, 60 Cal.2d 482 (Henderson rule: generally prohibits harsher sentence after successful appeal)
- Serrato v. Superior Court, 9 Cal.3d 753 (Serrato exception: unauthorized sentences may be corrected even if correction increases punishment)
- In re Ricky H., 30 Cal.3d 176 (authority that unauthorized sentences may be corrected on appeal)
- Dotson v. Superior Court, 16 Cal.4th 547 (mandatory § 667(a)(1) enhancements must be imposed as separate determinate terms; omission creates unauthorized sentence)
- Morales v. Superior Court, 106 Cal.App.4th 445 (omission of mandatory Three Strikes doubling on counts produced unauthorized sentence subject to correction)
- Solórzano v. Superior Court, 153 Cal.App.4th 1026 (failure to impose multiple § 667(a)(1) enhancements created unauthorized sentence; harsher resentencing permitted)
- Benton v. Superior Court, 100 Cal.App.3d 92 (failure to pronounce sentence on admitted priors produces unauthorized sentence and requires remand)
- Price v. Superior Court, 184 Cal.App.3d 1405 (correction of omitted enhancements on remand may result in harsher aggregate term)
- Irvin v. Superior Court, 230 Cal.App.3d 180 (omission to impose or strike enhancements warrants limited remand)
- Bradley v. Superior Court, 64 Cal.App.4th 386 (failure to impose or strike prior enhancements is legally unauthorized and correctable on appeal)
- Lucido v. Superior Court, 51 Cal.3d 335 (collateral estoppel requirements)
- People v. Boyer, 38 Cal.4th 412 (law-of-the-case doctrine and its limits)