Opinion
I.
Introduction
It is sеttled that a felony defendant’s original aggregate prison term cannot be
increased
on remand for resentencing following a partially successful appeal. (See, e.g.,
People v. Serrato
(1973)
We hold that on remand following the reversal of a felony count for which a subordinate term had been imposed, neither lack of jurisdiction nor res judicata bars the trial court from reconsidering its prior sentencing choices made under the normal rules of felony sentencing, including imposing a higher term for the principal, or base, term, so long as the total prison term for all affirmed counts does not exceed the original aggregate sentence.
We also reject appellant’s subsidiary contentions that the trial court: 1) abused its discretion in imposing the upper term for the principal term; 2) erred by applying improper aggravating factors; and 3) erred by refusing to consider letters submitted by the defense in mitigation. We also conclude that appellant’s trial counsel did not render ineffective assistance by failing to call the letters in mitigation to the court’s attention in connection with the resentencing, and, in any event, there was no prejudice to appellant because the letters were not entitled to any mitigating value. Accordingly, we affirm the judgment.
*1254 II.
Factual and Procedural Background
Appellant Bradford Gary Burbine was found guilty by a jury of one count of continuous sexual abuse of a child (Pen. Code, § 288.5) 1 and two counts of committing a lewd act on a child (§ 288, subd. (a)). 2 Each of the three counts involved a different victim. On the day of the original sentencing hearing, appellant submitted letters from his family and friends, to be considered in mitigation. The court declined to review the letters because they were not timely submitted. Rejecting the prosecutor’s contention that appellant should receive the aggravated term for the continuous sexual abuse count, the court sentenced appellant to the middle term of 12 years for that count, and added two consecutive terms of two years each, representing one-third the middle term for each of the lewd act counts, for a total prison term of 16 years.
Appellant filed an appeal and a habeas corpus petition, which we considered together in Burbine I. Only three of the issues addressed in our prior opinion are relevant to the present appeal. 3 First, we held that the court’s refusal to consider appellant’s untimely letters in mitigation was not an abuse of discretion. Second, we held that even if appellant’s counsel was ineffective in not presenting the letters in a timely fashion, there was no reasonable probability that consideration of the lettеrs would have led to a lesser sentence, because the letters were premised on the view that appellant was not guilty, and thus were entitled to no weight in mitigation.
Third, and most significantly for the purpose of the present appeal, we accepted appellant’s argument that his conviction on one of the lewd act counts was invalid, because the jury instructions on that count erroneously failed to require jury unanimity as to the particular act on which the conviction was based. We therefore reversed the conviction on that count only, and remanded the case for resentencing.
At the resentencing, the judge listed the materials he had reviewed in preparation for the hearing, and did not mention the letters in mitigation that
*1255 appellant submitted for the original sentencing. When the judge asked whether there was anything else he should consider, appellant’s counsel responded “No.”
The prosecution’s memorandum on resentencing requested that the court impose the upper term on both the principal and the subordinate counts, to run concurrently. At the hearing, appellant’s counsel argued that the trial judge was precluded from reconsidering his original decision to impose the middle term on the continuous sexual abuse count, which had been designated as the principal term of appellant’s sentence. The judge rejectеd this argument, reasoning that the original sentence had been “made up of interdependent [szc] components.” He explained that he understood this court’s remand to imply that he was “back to square one again” with regard to sentencing on the remaining counts.
The judge sentenced appellant to the same aggregate prison term originally imposed—16 years—but reached this result by a different route than he had originally taken. Rather than imposing the middle term of 12 years for the continuous sexual abuse count, which he again selected as the principal term, he imposed the upper term of 16 years. He imposed the middle term of six years for the remaining lewd conduct subordinate tеrm, but ordered it to run concurrently, rather than consecutively as it had in the original sentence.
In explaining his decision to impose the upper term on the principal term, the judge cited three aggravating factors. First, he noted that the term imposed for the subordinate count could have been consecutive (as, indeed, it had been on the original sentence), but that he was going to impose it concurrently. (See Cal. Rules of Court, rule 4.421(a)(7).) 4 Second, he stated that appellant’s crimes had been “obviously planned and sophisticated” in that they involved “taking sexual advantage of young children with movies and buying them toys and other things ... to insure that he remained in the child’s good graces, . . . [and] to kеep them from telling what is going on.” (See rule 4.421(a)(8).) Finally, he noted that appellant “took advantage of a position of trust that he developed with these young children, taking them on rides on [appellant’s big rig] truck, et cetera.” (See rule 4.421(a)(11).)
Following the entry of judgment on remand, appellant filed this timely appeal.
*1256 III.
Discussion
A. Imposition of Same Aggregate Term on Remand
The crux of appellant’s challenge to the sentence imposed on remand is that he received no reduction in his aggregate prison term, despite our reversal of one of the three counts on which he was originally convicted. He maintains it is unjust that, even though he now stands convicted of having molested only two children, rather than the original three, he still faсes the same amount of time in prison as when he was originally convicted.
Appellant contends that, given the trial judge’s original decision to impose the middle term for the principal term, the judge could not, or should not, have modified the sentence on remand to impose the upper term for that count, so as to arrive at the same aggregate prison term. Appellant advances several alternative legal arguments in support of his position.
We have found no published California opinion addressing whether a defendant can receive the same aggregate prison term upon resentencing for a multivictim felony conviction where the only count relating to оne of the victims was reversed on appeal. 5 As discussed below, however, we conclude that, under principles already elucidated in the case law, the trial judge’s original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased. (See People v. Craig, supra, 66 Cal.App.4th at pp. 1447-1448.)
1. Lack of Jurisdiction to Modify Sentence
First, citing
People v. Karaman
(1992)
People v. Karaman, however, presented the question whether a trial judge retains jurisdiction to modify a defendant’s sentence during a brief time period that intervenes, due to a stay of execution, between the entry of the sentence in the minutes and the actual commencement of the defendant’s prison term. Karaman held that sentencing jurisdiction is retained by the trial court during that period, because the “execution” of the sentence does not occur until the defendant is remanded into custody to begin serving his term. (People v. Karaman, supra, 4 Cal.4th at pp. 344-345.)
Therefore, the issue considered and decided by the court in
Karaman
is not relevant to this case, and its holding does not support appellant’s argument that the trial court lacked jurisdiction to modify his sentence. It is true that the trial court lost jurisdiction to modify appellant’s original sentence when appellant began serving it, but that too is irrelevant, because the trial court
regained
jurisdiction оver appellant’s sentence when we remanded the matter for resentencing. (See, e.g.,
People
v.
Hill
(1986)
Appellant relies on
Karaman
for the proposition that a remand for resentencing vests the trial court with jurisdiction only over that portion of the original sentence pertaining to the count that was reversed, and not over his sentence for the affirmed counts. This assumes that a felony sentence for a multiple-count conviction consists of multiple independent components, rather than being an integrated whole—a view that has been repeatedly rejected by other courts that have considered the issue. In
People v. Begnaud
(1991)
Other cases have reached much the same conclusion regarding the inherently integrated nature of a felony sentence under the current statutory scheme. For example, in
People
v.
Hill,
the court opined that “When a case is remanded for resentencing by an appellate court, the trial court is entitled tо consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components.”
(People v. Hill, supra,
Yet appellant contends that cases like Calderon, which involve multiple counts involving crimes against a single victim, are inapposite to this case where our reversal reduced not only the number of crimes, but also the number of victims from three to two. Appellant argues these circumstances necessarily imply a lesser degree of culpability than that perceived at his original sentencing hearing, thereby requiring a rеduction of his aggregate sentence.
We disagree that the facts of this case constrained the trial court upon resentencing to make a mandatory reduction in the original aggregate sentence. We reject appellant’s claim primarily because we endorse the notion that trial courts are, and should be, afforded discretion by rule and statute to reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court. Moreover, to suggest otherwise would potentially encourage trial courts to take into account the likelihood of certain cоunts surviving appeal—a sentencing algorithm which might unnecessarily lead to longer original sentences.
As already noted, case law holds that, based on double jeopardy and due process, the aggregate prison term imposed for all of the surviving counts *1259 cannot be increased on remand after a partial reversal, a circumstance appellant does not contend occurred here. (See People v. Craig, supra, 66 Cal.App.4th at pp. 1447-1448.) We do not view these cases as imposing a limit on the trial court’s jurisdiction over resentencing, however. Rather, they impose a limitation on how the court’s sentencing discretion may be exercised.
In accord with this line of cases, we hold that upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term.
2. Equitable Principles of Res Judicata
Appellant next argues that, even if the court regained jurisdiction to resentence him on the affirmed counts, under the specific circumstances of this case, the trial court’s modification of its prior sentencing choices violated equitable principles of res judicata that must be applied here in order to achieve fundamental fairness and comply with due process. He cites
People
v.
Mitchell
(2000)
In
Mitchell,
the defendant was convicted of assault with a deadly weapon, for which he was originally sentenced to a nine-year state prison term, including a five-year enhancement based upon a true finding that the defendant had suffered a prior conviction for a serious felony. (§ 667, subds. (a), (d), & (e);
Mitchell, supra,
*1260 Upon the second appeal, the court in Mitchell acknowledged that principles of double jeopardy do not bar retrial of prior conviction allegations in a noncapital case. (Mitchell, supra, 81 Cal.App.4th at pp. 139-142.) It ruled, however, that a finding that the evidence does not support an allegation of prior serious felony is akin to an acquittal of that allegation, concluding that principles of res judicata and law of the case bar the prosecution from a second attempt to prove the truth of the allegatiоn. (Id. at pp. 155-156.) It reasoned that “where the government has had a full and fair opportunity to present its case unhampered by evidentiary error or other impediment, fundamental fairness requires application of equitable principles of res judicata (direct estoppel) and law of the case to preclude the relitigation of [the defendant’s] prior serious felony conviction allegations for purposes of both a five-year enhancement and a strike under the three strikes law. [Citations.]” (Id. at p. 136.)
First, we find the Mitchell holding inapplicable to the present case as the reasoning of the court has no application to a trial court’s discretionary sentencing choicеs. 8 In selecting the middle term as the principal term at the initial sentencing, the trial court here did not, as appellant suggests, “acquit” him of the upper term. It did no more than find that the totality of the circumstances justified the selection of that particular term. Appellant cites no California case holding that it is fundamentally unfair to revisit the term selection issue on remand, after the original circumstances have been altered by the reversal of one count of the original conviction (provided, of course, that the aggregate prison term is not increased). We decline appellant’s invitation to be the first California court to so hold. 9
Furthermore, we note that the reasoning in
Mitchell
was persuasively discredited in
People
v.
Scott
(2000)
3. Abuse of Discretion and Use of Improper Aggravating Factors
In addition to his lack of jurisdiction and res judicata arguments, appellant contends that in imposing the upper term for the principal term at appellant’s resentencing, the trial court relied on improper aggravating factors and abused its discretion. In support of this argument, appellant relies in part on the fact that at the original sentencing hearing, when it imposed the middle term, the court expressly considered the same aggravating factors and rejected them as “contained within the charge” of continuous sexual abuse of a child. (See rule 4.420(d) [“A fact that is an element of the crime shall not be used to impose the upper term.”]; cf.
People v. Quinones
(1988)
Appellant argues that it was an abuse of discretion for the trial court to change its mind, on resentencing, regarding whether the prosecution’s proffered factors in aggravation were contained within the charge. We disagree.
It is established that a circumstance that is an element of the substantive offense cannot be used as a factor in aggravation.
(People v. Wilks
(1978) 21
*1262
Cal.3d 460, 470 [
Appellant cites
People v. Fernandez
(1990)
In the present case, the trial court provided such an elaboration. In support of its finding on resentencing that appellant’s crimes were “planned and sophisticated,” the court stated thаt appellant provided his victims with movies and toys “to insure that he remained in [their] good graces” and “to keep them from telling what [was] going on.” 11 Moreover, appellant, unlike the defendant in Fernandez, was a neighbor of his victims rather than a household member, and therefore not strictly speaking a “resident” child molester. Under the circumstances, appellant’s having lulled his victims into acquiescence and silence by cultivating a “friendly neighbor” relationship with them was distinct from the elements of the crime, and made appellant’s offenses worse than they otherwise would have been by manipulating the children’s natural feelings of gratitude and affection. Thus, we do not find any error in the trial court’s reliance on planning and sophistication as an aggravаting factor.
The trial court also found that appellant “took advantage of a position of trust that he developed with these young children” (rule 4.421(a)(ll)) by
*1263
“taking them on rides on [his big rig] truck,” which the evidence at trial showed was equipped with a sleeping area in which appellant molested one of his victims. Appellant contends that occupying a position of trust with respect to the victim is an element of continuous child abuse, and thus that this factor was not properly aggravating. Appellant’s contention has been rejected by another division of this court, in an opinion with which we concur.
(People v. Clark, supra,
In this case, appellant notes that the mother of the continuous abuse victim actively encouraged what she perceived as a quasi-patemal relationship between appellant and her child. This fact bolsters rather than undercuts the trial court’s finding in aggravation regarding appellant’s position of trust. Appellant’s prolonged deception of the victim’s mother concerning the true nature of his interest in the victim not only is not an element of the crime, but also did exactly what appellant contends an aggravating factor should do, i.e., it made this particular crime distinctively worse than others of its nature.
In short, the trial court did not err in considering the cited aspects of appellant’s conduct as aggravating factors. If the trial court was wrong in rejecting them the first time, аs we believe it was, it cannot have been an abuse of discretion for the court to reconsider, and correct its own error, after it regained jurisdiction by virtue of our remand.
But even if the reconsideration was error, we would still find no reason to disturb the sentence that was imposed on remand. Only a single aggravating factor is required to impose the upper term.
(People v. Osband
(1996)
Appellant argues that the “concurrent term” factor did not really exist. He notes that the case law already cited (e.g., People v. Craig, supra, 66 Cal.App.4th at pp. 1447-1448) barred the trial court from sentencing appellant to a longer term on resentencing than the 16 years he originally received. He argues that the court therefore could not have both imposed the upper term of 16 years, and made the subordinate term run consecutively. This is true, but it is also beyond cavil that the 16-year limit would not have prevented the trial court, on remand, from imposing the 12-year middle term plus a two-year consecutive subordinate term. Having chosen, instead, to make the subordinate term run concurrently, the court was free to use that choice as an aggravating factor allowing imposition of the 16-year upper term for the base term.
Finally, appellant urges us to reverse on the authority of
People
v.
Swanson
(1983)
B. Failure to Consider Letters in Mitigation
As a separate basis for reversal of his sentence, aрpellant contends that the trial court erred in failing to consider, on resentencing, the letters in mitigation that he submitted belatedly in connection with his original sentencing. Alternatively, he contends that if this argument was waived by his counsel’s failure to call the letters to the trial court’s attention, his counsel’s assistance was ineffective.
*1265 As already noted, at the outset of the resentencing hearing, the trial judge listed the materials he had reviewed, which did not include appellant’s letters in mitigation. He then asked whether there was anything else he should consider, and appellant’s counsel responded “No.” It is hard to imagine any clearer record for a waiver.
But there is insufficient evidence that thе conduct of counsel in not offering the letters was conduct which fell below the standard of care. In our prior opinion, we held that appellant’s original trial counsel’s failure to submit the letters sufficiently in advance of sentencing was not prejudicial, because “a review of the letters . . . leads us to conclude that there is no reasonable probability that consideration of the letters would have [led] to a lesser sentence.” We reached that conclusion because the letters were all premised on expressions of appellant’s innocence, and “[o]pinions as to the innocence of a defendant after a jury has already reached a guilty verdict are not a factor in mitigation.” (Cf.
People v. Charron
(1987)
People v. Bruce G.
(2002)
Thus, defense counsel’s failure to object or argue the text of the letters in mitigation is understandable because the letters themselves were not properly mitigating, and we had said as much in our earlier opinion in
Burbine I.
Moreover, appellant has failed to point to any facts upon resentencing to alter our earlier conсlusion that “there is no reasonable probability that the court would have imposed a lesser sentence” if the judge had reviewed the letters. It follows that trial counsel’s failure to call them to the judge’s
*1266
attention prior to the resentencing did not result in any prejudice to appellant.
12
(See
People v. Staten
(2000)
IV.
Disposition
The judgment is affirmed.
Kline, P. J., and Haerle, J., concurred.
Appellant’s petition for review by the Supreme Court was denied June 11, 2003.
Notes
All further statutory references are to the Penal Code unless otherwise noted.
The facts underlying appellant’s convictions were set forth in our opinion on appellant’s prior appeal and related habeas corpus petition. (People v. Burbine (Apr. 25, 2001, A087714 & A092468) [nonpub. opn.] (Burbine I).) They are summarized here only insofar as they are relevant to the issues raised on this appeal.
At appellant’s request, we have taken judicial notice of the record and briefs in his prior appeal and related habeas corpus petition. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
All further references to rules are to the California Rules of Court.
The closest case appears to be
People v. Calderon
(1993)
In Begnaud, the count that was reversed on the initial appeal was the one responsible for the principal term of the defendant’s sentence, rather than, as here, a count responsible for a subordinate term. We do not viеw this distinction as crucial to the jurisdictional question. In our view, the principle that a felony sentence under the determinate sentencing law is an integrated whole applies regardless of which element of that whole is invalidated by an appellate reversal.
Respondent contends that this issue was waived by appellant’s failure to raise it in the trial court. Appellant counters that the issue is one of due process, and therefore can be raised for the first time on appeal, and that, if the issue was waived, his trial counsel was therefore ineffective. We need not reach appellant’s contentions, because our reading of the record indicates that appellant’s trial counsel adequately preserved this question. At the resentencing hearing, counsel argued that the court had already considered and rejected the aggravating factors in the prosecution’s brief, and therefore its original finding that there were no aggravating circumstances should stand. The substance of the current argument was thus presented to the trial court.
Indeed, as respondent points out,
Mitchell
itself appears to have contemplated the possibility that, subject to the appellate court’s directions regarding striking its true findings on the defendant’s priors, the trial court could recalculate the entire sentence as it saw fit.
{Mitchell, supra,
We are not persuaded otherwise by the federal authoritiеs cited by appellant. None of them holds that res judicata or any other legal principle precludes a trial court, on remand for resentencing, from reconsidering its prior discretionary sentencing decisions. Moreover, appellant does not explain how decisions under federal sentencing statutes and rules are relevant to sentencing under the California determinate sentencing law.
The issue whether res judicata or law of the case bars retrial of prior conviction allegations after a reversal on appeal for insufficient evidence is presently before the California Supreme Court. (People v. Barragan (Mar. 8, 2002, D036697 [nonpub. opn.]), review granted May 15, 2002, S105734.) Even if the Suprеme Court determined in Barragan that retrial of prior conviction allegations is barred, however, that would not persuade us to accept appellant’s argument in this case. As already explained, we do not consider the reasoning in Mitchell applicable to a trial court’s discretionary sentencing choices.
Appellant contends that there was no evidence that he bought toys for the victims. This argument was not raised in the trial court, and is unsupported by any reference to the record. On the other hand, respondent has not provided us with any citations to the record indicating that toy buying did occur, and our prior opinion does not mention it. In any event, even if appellant did not literally buy toys for the victims, the record is clear that appellant took the victim of his continuous abuse to the movies and on trips, encouraged him to sleep over at his house and in his truck, and allowed him to camp out in his backyard. He also gave candy to the other victim. Thus, the record does support the trial court’s underlying point that appellant undertook deliberate efforts to ensure that he remained in his victims’ good graces and to deter them from reporting the abuse.
For the same reason, we see no reason to fault the trial judge for failing to review them of his own accord. Our opinion in Burbine I clearly implied that this was unnecessary, because we held that the letters had no mitigating value.