THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE VIZCARRA, Defendant and Appellant.
No. D065579
Court of Appeal, Fourth District, Division One, California
Apr. 30, 2015
A petition for a rehearing was denied May 13, 2015
236 Cal. App. 4th 422
NARES, J.
Appellant‘s petition for review by the Supreme Court was denied August 26, 2015, S226759.
OPINION
NARES, J.-
INTRODUCTION
Defendant Juan Jose Vizcarra challenges the sentence imposed on him following his prior appeal. In this gang-related and procedurally complicated stabbing case-which returns to this court following a nonpublished opinion in Vizcarra‘s prior appeal in People v. Vizcarra (May 22, 2013, D061878) (Vizcarra I) and the resulting remand to the trial court with directions to conduct a limited resentencing-a jury convicted Vizcarra, who was a member of the Chicali Brazas (Chicali) criminal street gang in Brawley, of two felonies: (1) assaulting Jesus Zermeno with a deadly weapon, a knife (count 2;
In addition, the jury found to be true a count 2 allegation that Vizcarra committed the assault with a deadly weapon for the benefit of, at the direction of, or in association with a criminal street gang (
The court originally sentenced Vizcarra in this case to an aggregate prison term of 15 years consisting of (1) the upper term of four years for his count 2 conviction of assault with a deadly weapon, doubled to eight years under the “Three Strikes” law as a result of the court‘s true finding on the count 2 strike prior allegation; plus (2) a consecutive term of two years for his count 3 conviction of attempting to dissuade a victim or witness, which the court did not double under the Three Strikes law; plus (3) a consecutive five-year term for the gang enhancement.
Before we set forth Vizcarra‘s contentions in this new appeal, and in order to provide necessary procedural context, we must briefly discuss his first appeal and the limited resentencing hearing that we directed the trial court to conduct on remand.
In Vizcarra I, Vizcarra challenged on various grounds his count 3 conviction (dissuading a witness) and his sentence. As pertinent here, the People responded by arguing that Vizcarra‘s total prison term sentence should be increased by seven years-from 15 years to 22 years-because (1) the court was required, but failed, to double to four years under the Three Strikes law the two-year sentence it imposed for Vizcarra‘s count 3 conviction of attempting to dissuade a victim or witness, and (2) the court also was required, but failed, to impose a consecutive five-year prior serious felony conviction enhancement under
In his reply brief, Vizcarra acknowledged that the court erroneously failed to double under the Three Strikes law the two-year sentence it imposed for his count 3 conviction. However, relying on People v. Henderson (1963) 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677] (Henderson) (and other legal authorities), Vizcarra asserted that, “[u]nder California law, after appeal a defendant may not receive a greater sentence on [the] charges for which he was tried in the first trial.” He also asserted that “California double jeopardy and due process principles generally forbid such an increased sentence.” Thus, Vizcarra claimed, his sentence could not be increased lawfully following his appeal because his original 15-year aggregate sentence was “within the range of permissible sentences” the trial court was legally authorized to impose, and the court “could have reached a legal sentence of [15] years, even with the correction of the alleged errors.”
In this court‘s unpublished opinion in Vizcarra I, rejecting Vizcarra‘s claims, we concluded that the trial court erred and rendered an unauthorized sentence by (1) failing to impose a mandatory five-year enhancement under
This court thereafter denied Vizcarra‘s petition for rehearing. On August 21, 2013, the California Supreme Court denied his petition for review (People v. Vizcarra, S211630).
On remand in mid-January 2014, the trial court conducted a limited resentencing hearing in accordance with this court‘s directions in Vizcarra I. In the exercise of its discretion, the court denied Vizcarra‘s motion under
C. Vizcarra‘s Contentions
Vizcarra again appeals, raising two main contentions. First, he contends the seven-year increase in his aggregate prison sentence-from 15 to 22 years-following his first appeal is illegal as a matter of law, and he asserts his 22-year sentence must be reduced to 15 years. Second, he contends the court abused its discretion in resentencing him on remand “by failing to complete a full sentencing analysis and by relying on improper sentencing considerations.”
For reasons we shall explain, we reject these contentions and affirm the judgment. However, we remand the matter with directions to amend the new abstract of judgment to correct two clerical errors in math (discussed, post) the People have correctly pointed out.
FACTUAL BACKGROUND2
Vizcarra, whose Chicali gang moniker was “Shorty,” stabbed Zermeno-who was affiliated with a rival street gang-twice in the ribs with a knife, causing him to suffer a collapsed lung. Zermeno was hospitalized for about two weeks. At the time of the assault, Vizcarra was accompanied by Jeffrey Ruiz, whose Chicali gang moniker was “Speedy” and who testified at trial that he saw Vizcarra stab Zermeno.
While in custody, Vizcarra made three phone calls: one to his fellow Chicali gang member, Fernando Flores, and the others to Chicali gang
In the second phone call, Vizcarra called Lopez and asked him for a “favor.” Vizcarra asked Lopez whether he knew Zermeno, and Lopez indicated he did not. Vizcarra explained, “Uh, well the fucker is saying... supposedly, that he is snitching, man.” Lopez said, “Really?” Lopez then told Vizcarra, “Wait, hold on, I‘m going to write that shit down, man.” Vizcarra spelled Zermeno‘s name for Lopez, who then said he would “see what‘s up.” After informing Lopez that he (Vizcarra) was being charged with attempted murder, Vizcarra told Lopez: “That‘s why I want you to [stutters] do that favor for me, man.” Lopez responded affirmatively. Vizcarra then said, “Find that fucker, man,” adding, “We got court on Monday, fool.” Lopez replied, “All right, fool.” Vizcarra then gave instructions to Lopez about what Zermeno should say in court: “And then, well, if you can get ahold of him before Monday it would be great, man. And just tell him that if he is going to go to court, man, to just say that it wasn‘t us. You know what I mean? That he should say, ‘No-.’ ”
Interrupting Vizcarra, Lopez replied, “Yeah.” Vizcarra added that Zermeno should say, “[I]t‘s the wrong people.’ ” Lopez indicated he would do this favor for Vizcarra.
In the third phone call, Vizcarra called Flores, whom he called “Flako.” Vizcarra asked Flores whether he knew Zermeno, and Flores replied he did not. Vizcarra told Flores, “[I]f [Zermeno] goes to court he should say, ‘No.’ You know what I mean, man?” Flores replied, “Yes.” Vizcarra added, “That it wasn‘t us, dog.” Flores responded, “Yeah, I know. I know.” Vizcarra further explained that he “already told [Lopez]” and that Lopez had written down Zermeno‘s name. Flores confirmed Zermeno‘s name and told Vizcarra he had written down Zermeno‘s name. Vizcarra then told Flores: “All right, dog. Just figure that shit out, dog. All right?... Do that favor for me, man.” Flores reassured Vizcarra, saying, “Yeah, don‘t trip.”
Zermeno, the victim in this case, testified for the prosecution that, on the night in question, two Hispanic men speaking in Spanish and brandishing knives ran towards him and one stabbed him twice in the ribs. At trial, Zermeno indicated that he did not know the identity of the men, and he could not identify Vizcarra as the person who stabbed him.
I. SEVEN-YEAR INCREASE IN VIZCARRA‘S PRISON SENTENCE
Vizcarra claims the seven-year increase in his aggregate prison sentence-from 15 to 22 years-following his first appeal in Vizcarra I is illegal as a matter of law, and his 22-year sentence must be reduced to 15 years. The People argue that Vizcarra‘s claim is barred by the doctrines of collateral estoppel and law of the case. We conclude those doctrines bar relitigation of Vizcarra‘s claim in this new appeal but expound the reasons why we rejected the claim in Vizcarra I.
A. Doctrines of collateral estoppel and law of the case
The California Supreme Court has explained that “[c]ollateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] The party asserting collateral estoppel bears the burden of establishing these requirements.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [272 Cal.Rptr. 767, 795 P.2d 1223], fn. omitted (Lucido).)
“[T]he law-of-the-case doctrine ‘prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.’ [Citation.] The doctrine is one of procedure, not jurisdiction, and it will not be applied ‘where its application will result in an unjust decision, e.g., where there has been a “manifest misapplication of existing principles resulting in substantial injustice” [citation].’ ” (People v. Boyer (2006) 38 Cal.4th 412, 441 [42 Cal.Rptr.3d 677, 133 P.3d 581] (Boyer).)
B. Analysis
Relying principally on People v. Henderson, supra, 60 Cal.2d 482, People v. Mustafaa (1994) 22 Cal.App.4th 1305 [28 Cal.Rptr.2d 172] (Mustafaa), and People v. Torres (2008) 163 Cal.App.4th 1420 [78 Cal.Rptr.3d 444] (Torres) as he did in Vizcarra I, Vizcarra renews in this second appeal the same claim
In Vizcarra I, rejecting Vizcarra‘s claim, this court concluded that the trial court erred and rendered an unauthorized sentence by (1) failing to impose a mandatory and nondiscretionary five-year enhancement under
Although this court did not expound its reasons for rejecting Vizcarra‘s claim in Vizcarra I, application of the law of the case doctrine does not lead to an unjust result. (See Boyer, supra, 38 Cal.4th at p. 441 [law of the case doctrine will not be applied where its application will result in an unjust decision].) As noted, Vizcarra asserted his claim in Vizcarra I in his reply brief, at oral argument, and in his petition for rehearing. Vizcarra was afforded ample opportunity to argue this issue in his prior appeal and, as he has not shown any significant change in circumstances, adherence to the law of the case in Vizcarra I will not result in an unjust decision.
Application of the law of the case doctrine (like application of the doctrine of collateral estoppel) does not lead to an unjust result for the additional reason that, under well-established law, Vizcarra‘s claim is unavailing on the merits. (See Boyer, supra, 38 Cal.4th at p. 441 [law of the case doctrine will not be applied where there has been a manifest misapplication of existing principles resulting in substantial injustice].)
”
Under the general rule of state constitutional law that the California Supreme Court has referred to as the Henderson rule, “[w]hen a defendant successfully appeals a criminal conviction, California‘s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.” (People v. Hanson (2000) 23 Cal.4th 355, 357 [97 Cal.Rptr.2d 58, 1 P.3d 650], italics added (Hanson), citing Henderson, supra, 60 Cal.2d at pp. 495-497;5 see People v. Solórzano (2007) 153 Cal.App.4th 1026, 1040 [63 Cal.Rptr.3d 659] (Solórzano) [“If a defendant successfully challenges his or her conviction on appeal and secures a new trial, the due process and double jeopardy clauses of the California Constitution generally prohibit the imposition of a harsher sentence after retrial.” (italics added)].) The Henderson court explained that the rationale for this general rule is twofold: “[T]he state has no interest in preserving erroneous judgments...” (Henderson, at p. 497), and “[a] defendant‘s right of appeal from an erroneous judgment is unreasonably impaired...” (ibid.) if he or she risks “more severe sentence on retrial” (id. at p. 495, italics added; see People v. Collins (1978) 21 Cal.3d 208, 216 [145 Cal.Rptr. 686, 577 P.2d 1026] [” ‘a defendant should not be required to risk being given greater punishment on a retrial for the privilege of exercising his right to appeal’ ” (italics added)].)
However, in People v. Serrato (1973) 9 Cal.3d 753, 764 [109 Cal.Rptr. 65, 512 P.2d 289] (Serrato), disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583 [189 Cal.Rptr. 855, 659 P.2d 1144], the California Supreme Court “set out an exception to this general [Henderson] rule.” (People v. Price (1986) 184 Cal.App.3d 1405, 1409 [229 Cal.Rptr. 550].) In Serrato, after discussing the Henderson rule, the Supreme Court explained that “[t]he rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar
In People v. Massengale (1970) 10 Cal.App.3d 689 [89 Cal.Rptr. 237] (Massengale), the Court of Appeal explained that “such a correction of the judgment is not a penalty imposed upon appellants because of their appeals. The rationale of [Henderson, supra], 60 Cal.2d 482 . . . , forbidding increased punishment after a reversal and second trial, does not apply. The correction in the judgment[] . . . would be required whenever the mistake was discovered, regardless of whether . . . [the] defendant[] had appealed.” (Id. at p. 693, italics added; accord, Cabral, supra, 51 Cal.App.3d at p. 718.)
It is well established in California by a long line of decisional authority (discussed, post) that a trial court‘s failure either (1) to pronounce sentence on a statutory sentence-enhancement allegation based upon a finding by the trier of fact or an admission by the defendant that the allegation is true, or (2) to exercise its discretion to the extent imposition of the enhancement is discretionary-to either strike the enhancement allegation or impose the enhancement, results in an unauthorized sentence. Under the Serrato exception to the Henderson rule, as already explained, such an unauthorized sentence is subject to correction by an appellate court “whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment.” (In re Ricky H., supra, 30 Cal.3d at p. 191.)
For example in Benton, supra, 100 Cal.App.3d 92, which was decided in 1979, the Court of Appeal held that the defendant‘s aggregate four-year state prison sentence was “unauthorized by law” because the defendant had admitted five charged prior felony convictions and the trial court was required to impose an additional consecutive one-year prison term for each prior conviction pursuant to
In People v. Price, supra, 184 Cal.App.3d 1405, decided in 1986, the defendant was convicted of four sex offenses and two robberies, and sentence enhancement allegations that he personally used a weapon in committing all of the crimes were found to be true. (Id. at p. 1407.) At the original sentencing, the trial court imposed an aggregate prison term of 35 years. (Ibid.) On defendant‘s first appeal, the Court of Appeal affirmed his convictions but remanded the cause for resentencing because the trial court had erroneously stayed imposition of the weapon enhancement as to two of the counts and failed to even mention the weapon enhancement as to another count. (Id. at p. 1411.) The trial court at resentencing imposed a more severe 50-year aggregate prison term. (Id. at p. 1407.) The defendant appealed again, claiming the double jeopardy clause of the California Constitution barred the trial court at resentencing from imposing a greater prison term than he originally received. (Id. at p. 1408.) Rejecting that claim but reducing the new sentence to a 47-year prison term for reasons not pertinent here, the Price court-citing Serrato, supra, 9 Cal.3d 753 and Benton, supra, 100 Cal.App.3d 92-concluded that the original sentencing court‘s erroneous “failure . . . to impose [the] weapon enhancements” (Price, at p. 1409) as to two counts and its failure to pronounce sentence regarding the enhancement as to another count “produced an unauthorized sentence” (id. at p. 1412) that ”[could] be rectified on remand” (id. at p. 1411, italics added). “Consequently,” the Price court explained, ”the sentencing court on remand had the power to impose a harsher term and was correct in doing so.” (Id. at p. 1412, italics added.)
In People v. Irvin (1991) 230 Cal.App.3d 180 [281 Cal.Rptr. 195] (Irvin), the trial court sentenced the defendant to an aggregate prison term of 16 years, which the defendant challenged on appeal. (Id. at p. 188.) The Court of Appeal-agreeing with the Attorney General and citing Benton, supra, 100 Cal.App.3d 92 and Price, supra, 184 Cal.App.3d 1405-concluded that the trial court had erroneously failed to either impose a one-year prior prison term enhancement (
In People v. Dotson (1997) 16 Cal.4th 547, 550 [66 Cal.Rptr.2d 423, 941 P.2d 56] (Dotson), which is of particular relevance here, the trial court
In People v. Bradley (1998) 64 Cal.App.4th 386 [75 Cal.Rptr.2d 244] (Bradley), a jury convicted the defendant of forgery and a related offense, and found he had previously served four prior prison terms within the meaning of
Two other more recent cases are relevant here. In People v. Morales (2003) 106 Cal.App.4th 445 [130 Cal.Rptr.2d 800] (Morales), which is directly on point (as we explained in Vizcarra I), a jury convicted the defendant of committing three felony counts of annoying or molesting a child, as charged in the amended information. (Morales, at p. 447§§ 667, subds. (b)-(i), 1170.12). (Morales, at p. 447§ 1385(a)) and, in sentencing the defendant, doubled under the Three Strikes law the prison term it imposed for the count 2 conviction, as required by sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). (Morales, at p. 447did not double the sentences it imposed as to those two remaining counts. (Morales, at pp. 447, 455.) The Court of Appeal reversed the sentence as to those counts and remanded the matter for resentencing, holding that “once the jury found defendant had previously been convicted of a violent felony, the sentence as to all counts should have been doubled pursuant to sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), subject to the trial court‘s exercise of its section 1385, subdivision (a) power to strike the prior conviction finding.” (Morales, at pp. 447-448, italics added.)
In Solórzano, supra, 153 Cal.App.4th 1026, which was decided in 2007 and is also on point, a jury convicted the defendant at his first trial of four counts of second degree robbery and found true all but one of numerous sentencing enhancement allegations. (Solórzano, at p. 1029section 667(a)(1). (Solórzano, at p. 1029Id. at p. 1040.) In imposing that aggregate sentence, the trial court imposed only one of the four five-year section 667(a)(1) enhancements.
Here, under the Serrato exception to the Henderson rule and the foregoing decisional authorities, the trial court‘s two errors at the original sentencing-i.e., failing to impose the mandatory, consecutive and nondiscretionary five-year enhancement under
Vizcarra‘s reliance on Torres, supra, 163 Cal.App.4th 1420 and this court‘s decision in Mustafaa, supra, 22 Cal.App.4th 1305 is unavailing. Torres is legally and factually distinguishable and has no application here. In that case a jury convicted the defendant of one count of attempting to dissuade a witness and one count of issuing a criminal threat, and as to each count it found a gang enhancement allegation to be true. (Torres, at p. 1421.) At sentencing the trial court struck the gang enhancement allegations, imposed what it believed was the upper state prison term of seven years for the criminal threat conviction after relying on the People‘s claim that seven years was the aggravated term, and imposed but stayed the middle term for the conviction of attempting to dissuade a witness. (Id. at p. 1427.) Neither the defendant nor the People appealed. (Id. at pp. 1421-1422.) More than a year later, “[t]he Department of Corrections and Rehabilitation . . . sent a letter to the trial court asking for clarification of [the] defendant‘s sentence because the sentence imposed was higher than that allowed by the sentencing triad applicable to the underlying conviction.” (Id. at pp. 1422, 1427.) The trial court recalled the sentence under
Torres is distinguishable in that, unlike the present case, it involved a recall by the trial court of the original sentence under
Mustafaa is distinguishable because in that case, as this court explained, the trial court “imposed a legal aggregate sentence, only fashioning it in an unauthorized manner” (Mustafaa, supra, 22 Cal.App.4th at pp. 1311-1312) by separating the defendant‘s three robbery convictions from their attached personal-gun-use enhancements and imposing consecutive sentences for the enhancements but imposing concurrent sentences for the robbery convictions to which they were attached (ibid.). Thus, the Serrato exception to the Henderson rule did not apply in Mustafaa. (Ibid.)
In the present case, the fact that the trial court at the original sentencing theoretically could have imposed an aggregate 15-year sentence as an authorized sentence does not mean that the 15-year sentence the court actually imposed at the original sentencing was an authorized sentence. For reasons we have explained, the 15-year sentence the court imposed at the original sentencing was an unauthorized sentence within the meaning of the Serrato exception to the Henderson rule because (1) the court erroneously failed to impose a mandatory, consecutive, and nondiscretionary five-year enhancement under
For all of the foregoing reasons, we reject Vizcarra‘s claim that the seven-year increase in his aggregate prison sentence-from 15 to 22 years-following his first appeal in Vizcarra I is illegal as a matter of law.
II. CLAIM THAT THE COURT ABUSED ITS DISCRETION DURING RESENTENCING
Vizcarra also contends the court abused its discretion in resentencing him on remand “by failing to complete a full sentencing analysis and by relying
A. Background
Remand for resentencing
In Vizcarra I, as already discussed, we affirmed Vizcarra‘s convictions on counts 2 and 3 and the true findings on various enhancement allegations, but we found the original 15-year aggregate sentence was unauthorized for reasons we explained, corrected the judgment to impose the mandatory, nondiscretionary and consecutive five-year prior serious felony enhancement (
On remand the trial court conducted a new sentencing hearing on January 17, 2014. Defense counsel argued that the court in the exercise of its discretion should strike Vizcarra‘s prior strike conviction “as to Count 3 [(dissuading a witness)] only” in the interest of justice pursuant to
Noting it understood that Vizcarra “would be looking at 15 years right now” had he not appealed, the court responded, “I know I have Romero discretion,” and added, “I‘m very familiar with what the discretion is and what criteria I should look at.”
Reminding the court that Vizcarra was convicted in count 3 of attempting to dissuade a witness, the prosecutor also argued there was “a collateral impact of [Vizcarra‘s] conduct as to Count 3.” She stated “[t]here was evidence at trial that demonstrated that [Vizcarra] made calls while in the jail to dissuade the victim” and “the victim actually was in fear.” She further explained that the victim attempted to commit suicide “just prior to his testimony at trial” as a result of Vizcarra‘s conduct. The prosecutor urged the court to “exercise your discretion under [
Defense counsel argued in rebuttal that the “lack of notice” regarding a doubling of the count 3 sentence under the Three Strikes law violated Vizcarra‘s constitutional rights, and this factor should be considered in determining whether to dismiss the strike prior in the interest of justice under
The court responded that it could not consider the notice issue “because the Court of Appeal has essentially already done that.” The court stated that “the case ha[d] been remanded by the Court of Appeal to exercise my discretion under Romero whether to double Count 3” and indicated it was required to follow certain criteria in exercising its discretion.
In exercising its discretion under
Referring to Vizcarra‘s strike prior as it related to his count 3 conviction of attempting to dissuade a witness, the court stated that, “had it been alleged at the time, I would have doubled the sentence. There is no doubt about that.” (Italics added.)
On the issue of whether it should double the two-year term it originally imposed for Vizcarra‘s count 3 conviction, the court considered the nature and circumstances surrounding the offense, noting it “still remember[ed] the details of the intimidation,” which was “persistent” in that Vizcarra had made “several different calls” in “trying to get out from this very serious stabbing where the victim could have very easily been killed.” Recalling the trial evidence pertaining to the attempted murder charge alleged in count 1, of which Vizcarra was acquitted, the court observed that Vizcarra was “very fortunate he didn‘t get convicted” of attempted murder, and stated, “I think that the reason for that was that this [multiple stabbing of the victim] was a rash and impulsive act on his part.”7
The court also considered Vizcarra‘s prior record, noting that he had “a number of very serious charges in his life.” The record showed that Vizcarra “was in custody when this occurred” and “[h]e was still entrenched and significantly in gang activity while he was in custody.”
The court denied Vizcarra‘s Romero motion to strike the prior strike, stating, “I don‘t see any basis to not impose the doubling of the sentence under [the Three Strikes law].” The court doubled the count 3 two-year prison term and imposed an aggregate sentence of 22 years in prison. (Discussed, post, at p. 443.)
B. Analysis
“On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court; it cannot modify, or add to, those directions.” (People v. Oppenheimer (1965) 236 Cal.App.2d 863, 865-866 [46 Cal.Rptr. 476] [on remand, trial court had jurisdiction only to entertain a new application for probation].)
Here, in Vizcarra I we reversed the sentence as to count 3 and remanded this case “for resentencing subject to the court‘s exercise of its
As noted, Vizcarra contends the court abused its discretion in resentencing him on remand “by failing to complete a full sentencing analysis and by relying on improper sentencing considerations.” Relying principally on Torres, supra, 163 Cal.App.4th 1420, People v. Hill (1986) 185 Cal.App.3d 831 [230 Cal.Rptr. 109], and Burbine, supra, 106 Cal.App.4th 1250, he complains that, “[o]n remand, the trial court was singularly focused on the decision of whether to double [his] Count 3 sentence” and that “[t]he court did not consider whether to modify any other aspect of the sentence.” We reject Vizcarra‘s contention. Torres and Hill are distinguishable because in each of those cases, unlike in the present case, the trial court recalled the defendant‘s sentence under
Vizcarra‘s reliance on Burbine is also misplaced. In Burbine the Court of Appeal stated: “[W]e 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 . . . has been vacated by a higher court.” (Burbine, supra, 106 Cal.App.4th at p. 1258, italics added.) Here, no portion of the original verdict has been vacated by a higher court. Furthermore, as already discussed, the courts in California have long approved limited remands for the correction of unauthorized sentences. (Bradley, supra, 64 Cal.App.4th at pp. 392, 401; Irvin, supra, 230 Cal.App.3d at p. 193; Benton, supra, 100 Cal.App.3d at pp. 102-103.)
We conclude Vizcarra has failed to show that the court on remand abused its discretion by failing to complete a full sentencing analysis. Having
III. ABSTRACT OF JUDGMENT
Once again we find errors in the abstract of judgment. The People request that this court correct two errors in the new abstract of judgment. Specifically, the People assert that, “[a]lthough the abstract of judgment indicates a total term of 22 years, it fails to reflect the doubled terms in counts 2 and 3. Accordingly, this court should correct the clerical errors in the abstract of judgment to accurately reflect the trial court‘s oral pronouncement.”
We agree the new abstract of judgment should be corrected. The abstract correctly reflects that the court on remand resentenced Vizcarra to an aggregate prison term of 22 years. However, the court originally sentenced Vizcarra to the term of four years for his count 2 conviction of assault with a deadly weapon, doubled to eight years under the Three Strikes law as a result of the court‘s true finding on the count 2 strike prior allegation. On remand Vizcarra‘s eight-year count 2 sentence did not change, and, thus, the new abstract of judgment should reflect this count 2 sentence. Section “1.” of the abstract, however, incorrectly reflects that Vizcarra was sentenced to a four-year prison term for his count 2 conviction. Accordingly, this portion of the abstract should be corrected to reflect that Vizcarra was sentenced to a prison term of eight years for his count 2 conviction.
During resentencing the court imposed the consecutive term of two years for Vizcarra‘s count 3 conviction of attempting to dissuade a victim or witness, and doubled that term to four years under the Three Strikes law. Section “1” of the abstract, however, incorrectly reflects that Vizcarra was sentenced to a consecutive two-year prison term for his count 3 conviction. Accordingly, this portion of the abstract should be corrected to reflect that Vizcarra was sentenced to a prison term of four years for his count 3 conviction.
DISPOSITION
The judgment is affirmed. The matter is remanded to the superior court with directions that it prepare a corrected abstract of judgment to reflect that
Benke, Acting P. J., and McDonald, J., concurred.
A petition for a rehearing was denied May 13, 2015, and appellant‘s petition for review by the Supreme Court was denied August 26, 2015, S226759.