P. v. O’Neal
Filed 4/12/13 P. v. O’Neal CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GLENN DAVID
O’NEAL,
Defendant and Appellant.
E054210
(Super.Ct.No. FSB051948)
OPINION
APPEAL
from the Superior Court of
County. Kyle S. Brodie,
Judge. Affirmed with directions.
Valerie
G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott Taylor and Marissa
Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Glenn David O’Neal, defendant and appellant (defendant),
appeals from the judgment entered when the trial court sentenced him to serve a
term of 17 years eight months in state prison after a jury found him
guilty of two counts of first degree
burglary (Pen. Code, § 459),
sentence enhancements.
Defendant
contends in this appeal that the trial court violated the due process and
double jeopardy clauses in the California Constitution because defendant
successfully appealed his first conviction, and the trial court punished
defendant more harshly on remand by sentencing him to serve 17 years eight
months in prison and by imposing larger restitution and parole revocation
fines. Defendant also contends the trial
court committed prejudicial error when it denied his request at sentencing to
have counsel reappointed to represent him at that hearing.
The
Attorney General concedes that the trial court imposed an unauthorized
sentence, and that the correct prison term is 16 years eight months. The Attorney General also concedes that the
trial court improperly imposed restitution and parole revocation fines greater
than those imposed in defendant’s first trial and, because fines constitute
punishment, the trial court violated the due process and double jeopardy
clauses in our state Constitution. We
conclude the Attorney General’s concessions are appropriate. Therefore, we will modify defendant’s state
prison sentence by reducing it from 17 years eight months, to 16 years eight
months and by reducing both the restitution and parole revocation fines from
$2,400 to $2,000. We do not share
defendant’s view regarding appointment of counsel, but our resolution of the
sentencing and fine issues render the purported error harmless, as we discuss
below.
This
is defendant’s second appeal. In his
first (case No. E041678), we concluded the Attorney General had appropriately
conceded defendant’s claim that the trial court had not followed the procedure
set out in sections 1368 and 1369 for determining defendant’s competency to
stand trial. Therefore, we reversed the
judgment in which the trial court had found defendant guilty as charged of two
counts of first degree burglary and sentenced him to serve 17 years eight
months in state prison.
On
remand, a jury found defendant guilty as charged of two counts of first degree
burglary. In a bench trial, the court
found true the allegation that defendant had previously been convicted of a
serious felony within the meaning of the three strikes law (§§ 667, subds. (a),
(b)-(i), 1170.12, subds. (a)-(d)), and also found true the allegation that
defendant had served a prior prison term (§ 667.5, subd. (b)).
The
trial court sentenced defendant to serve a total term of 20 years eight months,
comprised of the upper term of six years, doubled to 12 years as a second
strike, on count 1; on count 2, a consecutive term of one year four months
doubled to two years eight months; plus five years on the section 667,
subdivision (a)(1), prior serious felony enhancement; and one year on the prior
prison term enhancement under section 667.5, subdivision (b). The trial court acknowledged it could not
impose a more severe sentence following defendant’s successful appeal, so the
court struck three years of defendant’s prison sentence because of the
prohibition against double jeopardy, with the result that the term actually
imposed would be 17 years eight months, the same sentence the trial court
imposed following defendant’s first trial.
The
trial court also imposed parole revocation and restitution fines of $2,400
each.
We
will recount additional facts below as pertinent to the issues defendant raises
in this appeal.
Defendant,
as previously noted, contends his sentence is unlawful because it is longer
than the sentence imposed following his first trial and subsequent successful
appeal. We agree with the Attorney
General that the two sentences are the same length and, therefore, there is no
violation of the state Constitution. We also agree with the Attorney General’s
argument that the trial court lacked authority to strike three years from
defendant’s sentence. Therefore, the
trial court’s sentence of 17 years eight months is unauthorized; the correct
sentence is 16 years eight months.
The
issue presented here is addressed in People
v. Thornton (1985) 167 Cal.App.3d 72, in which the trial court stayed one
year of a six-year upper term prison sentence because the trial court was
“‘somewhat persuaded by [the defendant’s] attitude.’†(Id.
at p. 74.) Our colleagues in the Fifth
Appellate District held that the resulting sentence was unauthorized because
section 1170, subdivision (a)(2), expressly requires the court to “‘
terms of imprisonment specified unless such convicted person is given any other
disposition provided by law . . . .’†(People
v. Thornton, at p. 75.) “The statute
could not be more clear: with exceptions
not applicable here, the judge must impose ‘one of the terms of imprisonment
specified.’†(Ibid.)
There
are no provisions in the sentencing statutes that authorize a trial court to
impose a sentence authorized by law and then to reduce that sentence by three
years. The 17-year-eight-month sentence
the trial court imposed in this case is unauthorized by law. The parties agree that the statutorily
authorized sentence is 16 years eight months calculated as follows: four years, doubled to eight years on count
1; on count 2, one year four months doubled to two years eight months; plus one
year for the prior prison term
In
addition to the unauthorized sentence, the trial court also increased the
amount of the restitution and parole revocation fines (the latter of which the
trial court stayed) from the amount imposed following defendant’s original
trial. “When a defendant successfully
appeals a criminal conviction, California’s constitutional prohibition against
double jeopardy precludes the imposition of more severe punishment on resentencing. [Citation.]â€
(People v. Hanson (2000) 23
Cal.4th 355, 357.) A statutorily
mandated fine constitutes punishment and, therefore, comes within the double
jeopardy principle prohibiting the imposition of harsher punishment following a
defendant’s successful appeal. (
Therefore, the larger fines violate the California constitutional
prohibition against double jeopardy.
Because
the trial court’s prison sentence is unauthorized and the restitution fine and
parole revocation fine are unconstitutional, we will modify the judgment first
by imposing a sentence of 16 years eight months (as previously calculated) and
next by reducing the restitution and parole revocation fines from $2,400 to
$2,000 each.
On the
date originally set for sentencing, the trial court granted defendant’s request
to represent himself in order to file a motion for new trial and for
sentencing. Four months later at
defendant’s sentencing hearing, which had been continued at least once at
defendant’s request, defendant asked the trial court to reappoint the public
defender. The trial court denied that
request. Defendant contends the trial
court abused its discretion. He also
concedes that the error is harmless if we reduce his sentence to 16 years eight
months, which he agrees is the correct sentence and the one that would have
been imposed if he had been represented by an attorney at his sentencing
hearing.
Accordingly,
although we do not share defendant’s view that the trial court abused its
discretion when it denied defendant’s request to have counsel reappointed to
represent defendant at sentencing, we will not address that issue. Even if we were to agree with defendant,
reversal would be required only if the error were prejudicial, i.e., it is
reasonably probable a result more favorable to defendant would have occurred if
he had been represented by counsel at sentencing. (People
v. Smith (1980) 109 Cal.App.3d 476, 486.)
Because we will reduce the sentence the trial court imposed in this
case, and the reduced sentence eliminates any prejudice defendant could have
suffered as a result of not being represented by an attorney at sentencing, we
will conclude any purported error was harmless.
The
judgment is modified by (1) reducing defendant’s sentence on count 1 from six
years to four years, doubled, for a sentence of eight years, (2) reducing the
Penal Code section 1202.4 restitution fine from $2,400 to $2,000, and (3)
reducing the Penal Code section 1202.45 parole revocation restitution fine from
$2,400 to $2,000, the latter of which is stayed pending defendant’s successful
completion of parole. The trial court is
directed to prepare an amended abstract of judgment that reflects defendant’s
modified sentence and to forward a copy of that amended abstract of judgment to
the appropriate agencies.
The
judgment is affirmed in all other respects.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Different judges presided over defendant’s
first and second trials.
