P. v. Harris
Filed 12/12/12 P. v. Harris CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
NICOLAS HARRIS,
Defendant and
Appellant.
H036908, H037667
(Santa Clara
County
Super. Ct. No. 190602)
Defendant
Nicolas Harris has filed two appeals arising from two resentencing proceedings
in a case where a jury convicted him of stealing over $150,000 by false
pretenses from two elderly single men and then
from testifying against him. Considering
four prior convictions for purposes of the Three Strikes law, the trial court
resentenced defendant to 77 years to life, which generated appeal No.
H036908. And, at a later hearing, it
reimposed a $10,000 restitution fine and a $276 booking fee, which generated
appeal No. H037667. Defendant contends
that the trial court erred by failing to entertain a Romero
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motion and reimposing the fine and fee.
We ordered the appeals considered together for the purpose of briefing,
oral argument, and disposition. The
People concede that the matter should be remanded for a Romero hearing. And we agree
that the concession is appropriate. We
therefore reverse the judgment and remand for resentencing.
background
At
defendant’s original sentencing hearing, the trial court denied defendant’s
years to life, and imposed a $10,000 restitution fine and $276 booking
fee. After we affirmed defendant’s
convictions (People v. Miller (2000)
81 Cal.App.4th 1427), defendant filed a habeas corpus petition in federal district
court. The federal court granted partial
relief by ruling that insufficient evidence supported one of the counts. On remand, defendant sought to replace
appointed counsel with private counsel because appointed counsel wished to
argue that the trial court had no jurisdiction to resentence defendant (because
60 days had passed since the federal court ordered resentencing within 60 days)
rather than make another Romero
motion, which would recognize jurisdiction.
The trial court denied defendant’s motion to substitute counsel and
concluded that the federal court order addressed the dismissal of one count and
did not allow for another Romero
motion. It then dismissed the count and
imposed a sentence on another count that had originally been stayed to arrive
at the original 77-years-to-life sentence.
It did not reimpose the restitution fine or booking fee until a later
hearing after the omission was brought to its attention.
discussion
Defendant
contends that the trial court erred by denying his motion to replace appointed
counsel and he received ineffective assistance of counsel because appointed
counsel failed to make a Romero
motion. In any event, the record is
clear that the trial court believed that it had no discretion to entertain a
“When a
case is remanded for resentencing by an appellate court, the trial court is
entitled to 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. The invalidity of one
component infects the entire scheme.†(
831, 834.)
The trial
court should have therefore entertained a Romero
motion.
“Romero
establishes that where the record affirmatively discloses that the trial
court misunderstood the scope of its discretion, remand to the trial
court is required to permit that court to impose sentence with full awareness
of its discretion as clarified in Romero.†(People v. Fuhrman (1997) 16 Cal.4th
930, 944.)
We must therefore
remand for resentencing.
Defendant
claims that double jeopardy principles
bar the reimposition of the restitution fine and booking fee. This argument appears to be inconsistent with
the principle that reversal of the judgment for resentencing reopens the entire
sentencing scheme. In any event,
defendant is free to advance his argument in the trial court.
The parties also agree that the
trial court erred in calculating certain custody credits. They are free to clarify the issue for the
trial court at resentencing.
disposition
The
judgment is reversed. The matter is
remanded for resentencing.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
People v. Superior Court (
