Filed 5/26/21 P. v. Hayes CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B297544
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA082323)
v.
CLIFTON HAYES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Susan M. Speer, Judge. Sentence vacated;
remanded.
Marilyn G. Burkhardt, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Zee Rodriguez,
Supervising Deputy Attorney General, Douglas L. Wilson,
Deputy Attorney General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Clifton Hayes appeals the
trial court’s imposition of a determinate term of 75 years in
state prison upon resentencing. Hayes contends that his
current sentence violates the California Constitution’s
prohibition of double jeopardy and his state and federal
constitutional due process rights, because it is greater than
the sentence the trial court imposed before a panel of this
court concluded that insufficient evidence supported his
conviction of kidnapping for purposes of robbery (§ 209,
subd. (b)(1)) in count 1, reduced the conviction to the lesser
included offense of felony false imprisonment (Pen. Code,
§ 237, subd. (a)1), and remanded to the trial court for
resentencing. He further contends that the abstract of
judgment must be corrected, as it misidentifies his crimes in
counts 1 and 11.
The People agree that the abstract of judgment must
be corrected to correctly reflect the offenses in counts 1 and
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
11, but dispute Hayes’s contention that his current sentence
is greater than his original sentence.
Following our review of the record, we sent a letter to
the parties inviting supplemental briefing regarding the trial
court’s imposition of a firearm use enhancement pursuant to
section 12022.53, subdivision (b), in count 10, despite the
fact that the jury had made no firearm use finding in
association with that count.2 The parties agree that the
enhancement must be stricken.
We conclude that the sentence imposed on remand is
more severe than the sentence originally imposed. We
vacate the sentence and remand the matter to the trial court
to resentence Hayes. Although not necessary to our
disposition of this matter in light of our remand, we note
that (1) the abstract of judgment should reflect that Hayes
was convicted of felony false imprisonment (§ 237, subd. (a))
in count 1 and possession of a firearm by a felon (§ 28900,
subd. (a)(1)) in count 11, and (2) the jury did not make a
firearm use finding in connection with count 10, so
imposition of an enhancement under section 12022.53,
subdivision (b) would be inappropriate.
2 We previously granted a request by Hayes that we
take judicial notice of the record in the prior appeal in Case
No. B277263.
3
PROCEDURAL HISTORY3
A jury convicted Hayes of kidnapping for purposes of
robbery (§ 209, subd. (b)(1) [count 1]), three counts of second
degree robbery (§ 211 [counts 2, 3, & 10]), six counts of
assault with a semiautomatic firearm (§ 254, subd. (b)
[counts 4, 5, 6, 7, 8, & 9]), and possession of a firearm by a
felon (§ 29800, subd. (a)(1) [count 11]). The jury found true
the allegations that Hayes personally used a firearm within
the meaning of section 12022.53, subdivision (b), in counts 2
and 3. It further found true the allegations that Hayes
personally used a firearm within the meaning of section
12022.5, subdivisions (a) and (d), in counts 4, 5, 6, 7, 8, and
9. The jury also found true the allegations that Hayes
suffered four prior strike convictions.
At the sentencing hearing, the trial court considered
Hayes’s Romero motion,4 and found that all four of his prior
convictions were separate strike offenses. The court then
struck three of Hayes’s four prior strikes in the interests of
justice; the fourth strike, not stricken by the trial court, is
for a violation of section 215, subdivision (a), a serious felony
within the meaning of section 667, subdivision (a)(1), as
alleged in the information.
3Because Hayes’s contentions are limited to sentencing
error, it is not necessary to include a recitation of the facts.
4 People v. Superior Court (Romero) (1996) 13 Cal.4th
497.
4
After enumerating multiple aggravating factors, the
trial court sentenced Hayes to two life terms, plus a
determinate term of 30 years 4 months, as follows: a life
sentence with the possibility of parole, doubled to two
consecutive life sentences pursuant to the three strikes law
in count 1; the upper term of 5 years, doubled to 10 years
pursuant to the three strikes law, plus a 10-year
enhancement (§ 12022.53, subd. (b)) in count 2; and a
consecutive 2-year term (one-third the mid-term, doubled per
the three strikes law), plus an enhancement of 3 years 4
months (§ 12022.53, subd. (b)) (one-third of the 10-year
enhancement) in count 3. The court imposed concurrent
terms of 6 years, doubled to 12 years pursuant to the three
strikes law, plus enhancements of 4 years each (§ 12022.5,
subds. (a) & (d)) in counts 6, 7, 8, and 9; and a concurrent
sentence of 3 years in count 11.5 The court imposed and
stayed sentences of 16 years each in counts 4 and 5 (the mid-
term of 6 years doubled pursuant to the three strikes law,
plus 4 years for the personal gun use allegation); and
imposed and stayed the upper term of 5 years, doubled
under the three strikes law, plus 10 years (§ 12022.53, subd.
(b)),6 in count 10, pursuant to section 654. Finally, the court
5The sentence in count 11 should have been doubled
pursuant to the three strikes law.
6 The jury was not asked to make a finding under
section 12022.53, subd. (b) in count 10, although the
enhancement was charged in the amended information.
5
imposed a sentence of 5 years under section 667, subdivision
(a)(1) for Hayes’s prior conviction for violation of section 215,
subdivision (a), a serious felony.
Hayes timely appealed, challenging the sufficiency of
the evidence supporting his conviction for kidnapping for
purposes of robbery in count 1, and contending that the trial
court erred by orally imposing two life terms with the
possibility of parole in count 1, rather than a single life term
with a minimum parole eligibility date of 14 years. The
People agreed that the court erred in it its oral
pronouncement of sentence in count 1, but argued that
substantial evidence supported his conviction for kidnapping
for purposes of robbery. Another panel of this court
concluded that the asportation element of kidnapping for
purposes of robbery in count 1 was not supported by
substantial evidence, reduced the conviction in count 1 to the
lesser included offense of felony false imprisonment (§ 237,
subd. (a)), and remanded to the trial court for resentencing.
The panel’s remand in count 1 for resentencing mooted
Hayes’s claim of sentencing error in that count.
On remand, the court sentenced Hayes to a
determinate term of 75 years to life. At the resentencing
hearing, the trial court noted that it had discussed the
court’s tentative ruling off-record with the parties. Defense
counsel then argued based on the tentative ruling: “We
understand that the Court has explained in terms of what
the Court intends to do with the sentence and the changes in
the sentence for the various counts, and it’s a concern to us
6
because, even though technically anything less than the
word ‘life’ is considered to be a lesser offense, it could be 125
years but it’s still considered to be less than life.” Counsel
argued that reversal was for insufficient evidence rather
than imposition of an “illegal” sentence, so “it would be
punitive or unfairly and improperly punitive to now almost
punish Mr. Hayes for raising the alarm, that, ‘hey, this is not
a kidnapping’ and which would -- we would in effect remove
the ‘L’ but not cause him or cause all of these counts to be
revisited. It punishes him really for doing that appeal . . . .”
The court responded, “Because [Hayes] was convicted
on the count that the Court of Appeals felt was not factually
based, I can resentence him over again. I can’t sentence him
to greater than what I sentenced him to the first time, but
the cases seem to indicate that a determinate term is less
than an indeterminate term even if the net result is he ends
up serving more time, which we cannot calculate because it’s
up to the Board of Prison Terms and the Parole Board. So
for those reasons I do not think I am punishing him or
sentencing him to more than he received at the initial
sentence before the appeal was granted.”
With respect to Hayes’s prior convictions, the trial
court reiterated that it had stricken three of the four strikes,
and was sentencing Hayes as a second-striker under the
three strikes law. The court also noted that Hayes’s
remaining strike, for the violation of section 215, subdivision
(a) was a serious felony.
7
The court stated that it would not exercise its
discretion to strike the remaining gun allegations pursuant
to sections 12022.5, subdivision (c) or 12022.53, subdivision
(h), or the prior strike conviction pursuant to section 667,
subdivision (a)(1) in the interests of justice.
The court found numerous factors in aggravation, and
no mitigating factors, and sentenced Hayes to a total
determinate term of 75 years. The court vacated the
sentence and dismissed the personal firearm use allegation
in count 1.7 The court selected count 4 as the principal
count, and sentenced Hayes to the high term of 9 years,
doubled to 18 years under the three strikes law, plus an
additional high term of 10 years for the gun enhancement
(§ 12022.5, subd. (a)), for a total of 28 years in prison. In
counts 5, 6, 7, 8, and 9, the court sentenced Hayes to
consecutive terms of 7 years 4 months (one-third the mid-
term plus one-third of the high term for the gun
enhancement pursuant to § 12022.5, subd. (a)). In count 10,
the court imposed a consecutive sentence of 5 years 4 months
(one-third the mid-term plus one-third of a 10-year
enhancement under § 12022.53, subd. (b)). The court
imposed a concurrent high term of 3 years in count 11,
doubled pursuant to the three strikes law, for a total of 6
years. The court imposed and stayed a sentence of 8 years in
count 1 (the high term doubled pursuant to the three strikes
law), and imposed and stayed sentences of 20 years each in
7 The jury did not make a firearm use finding in count
1.
8
counts 2 and 3 (the high term doubled pursuant to the three
strikes law plus a 10-year firearm use enhancement).
Finally, the court sentenced Hayes to an additional
consecutive 5-year enhancement pursuant to section 667,
subdivision (a).
Hayes timely appealed.
DISCUSSION
The Trial Court Imposed a Greater Sentence Upon
Resentencing
Hayes contends that the trial court violated the
California Constitution’s prohibition on double jeopardy and
his state and federal constitutional due process rights by
imposing a greater sentence on remand following his
successful appeal. He argues that the 75-year determinate
sentence imposed upon resentencing is a de facto sentence to
life without parole—he will not be eligible for release until
he is approximately 108 years old—and is more severe than
the sentence originally imposed.8 In contrast, under the
8 The trial court erred by including, in the 75-year
sentence imposed after remand, additional time based on an
enhancement in count 10 that was not part of the jury’s
verdict. As corrected for that error, Hayes’s sentence would
reflect a total term of 71 years 8 months of imprisonment.
Even correcting for the mistakenly imposed enhancement in
count 10, Hayes would not be paroled under the sentence
imposed on remand until he is over 100 years old.
9
original sentence of life with a minimum parole eligibility
date of 14 years, plus 30 years 4 months, Hayes would have
been eligible for parole when he was 79 years old.9
The People contend that Hayes forfeited this argument
by failing to raise the issue at the resentencing hearing, but
that, regardless, the contention fails.
Forfeiture
We disagree with the People regarding forfeiture. The
trial court considered the issue now raised on appeal and
explained its ruling in that context. Defense counsel was
adamant in his concerns regarding imposition of a greater
sentence following Hayes’s successful appeal. In response,
the trial court explained why it believed that the sentence
imposed after remand was less severe than the original
sentence, as required under the circumstances. Although
defense counsel did not specifically reference double jeopardy
and due process rights at the resentencing hearing, Hayes’s
objections were sufficiently specific to preserve his
constitutional claims, such that “[n]o unfairness to the
9 We agree with the parties that, had the kidnapping
for purposes of robbery count been supported by substantial
evidence, the correct sentence for the kidnapping for
purposes of robbery count would have been life with a
minimum parole eligibility date of 14 years, and not two
consecutive life sentences as the trial court originally
imposed. (People v. Jefferson (1999) 21 Cal.4th 86, 96, 99
(Jefferson).)
10
parties or the court results from considering this claim on
appeal.” (People v. Gomez (2010) 181 Cal.App.4th 1028,
1033; see also People v. Partida (2005) 37 Cal.4th 428, 435.)
Moreover, Hayes’s contention that the determinate sentence
with a parole eligibility date that exceeds his lifespan is
greater than a life sentence with eligibility for parole is an
issue that can be resolved as a matter of law without
reference to the sentencing record in the trial court. (In re
Sheena K. (2007) 40 Cal.4th 875, 888–889.) We review such
issues de novo. (People v. Grimes (2016) 1 Cal.5th 698, 712.)
Legal Principles on Resentencing
After a defendant successfully appeals a criminal
conviction on the ground that it is not supported by
substantial evidence, “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 (Hanson); see also People v.
Henderson (1963) 60 Cal.2d 482, 495–497 (Henderson).)10
“[T]he [double jeopardy] protections afforded by our state
10 “A case falls outside the rule[s] of Henderson [and
Hanson] when it involves an unauthorized
or illegal sentence. When such a sentence is set aside on
appeal a correct, even if more severe, sentence may be
imposed upon retrial without offending the principles
of double jeopardy.” (People v. Craig (1998) 66 Cal.App.4th
1444, 1449.)
11
Constitution are broader than those afforded by the federal
Constitution. (People v. Monge (1997) 16 Cal.4th 826, 844.)
. . . [O]ne of the consistent concerns of our state courts in
looking at double jeopardy issues in the context of a sentence
imposed after a successful appeal has been the related due
process concern of whether an increased punishment reflects
a vindictive retaliation for defendant’s having taken a
successful appeal. [Citations.] Accordingly our discussion
though framed as an issue of double jeopardy subsumes both
defendant’s double jeopardy and due process claims.”
(People v. Craig (1998) 66 Cal.App.4th 1444, 1447.)
When an indeterminate sentence such as life with the
possibility of parole is imposed, “the defendant is sentenced
to life imprisonment but the Board of Prison Terms can in its
discretion release the defendant on parole.” (Jefferson,
supra, 21 Cal.4th at p. 92.) As with the sentence originally
imposed in the instant case, an indeterminate term may
include a minimum term, before which the defendant is not
parole-eligible. (Id. at pp. 92–93.) A “determinate” prison
sentence, such as the one the trial court imposed here on
resentencing after remand, consists of “a specific number of
months or years in prison.” (Id. at p. 92.) The defendant
must serve the entire determinate term, less applicable
credits, but must then be released on supervised parole for a
set period of time. (§ 3000, subds. (a)(1), (b); In re
Dannenberg (2005) 34 Cal.4th 1061, 1078.) The Board “has
no discretion to grant or withhold parole to a prisoner who
has served a determinate term.” (People v. Burgener (1986)
12
41 Cal.3d 505, 529, fn. 12, disapproved on another ground in
People v. Reyes (1998) 19 Cal.4th 743, 756.)
Analysis
Following Hayes’s appeal of his conviction, and the
appellate court’s determination that there was insufficient
evidence to support the kidnapping for purposes of robbery
conviction in count 1, the matter was remanded for
resentencing. The trial court correctly stated that it could
not impose, on remand after Hayes’s successful appeal, a
greater sentence than originally imposed. (Hanson, supra,
23 Cal.4th at p. 357.) Neither Hayes nor the People quarrel
with this fundamental rule. Rather, their dispute on appeal
is whether the sentence imposed after remand is a greater or
lesser sentence than the sentence originally imposed.
In addressing the merits of the parties’ dispute, we
accept the following as the key elements of each sentence:
Hayes’s original sentence provided for an indeterminate
term of life imprisonment with a minimum parole eligibility
date of 14 years on the kidnapping for robbery count, plus a
determinate term of 30 years and 4 months on the remaining
counts. Neither the 30-year 4-month determinate sentence
nor the minimum parole eligibility date applicable to the
indeterminate term precluded all possibility of release
during his lifetime. The sentence imposed after Hayes’s
successful appeal, and challenged here, is a term of 71 years,
8 months. Hayes is entitled to be paroled upon completion of
13
that term; however, that parole date will not occur until
beyond his life expectancy.
As discussed more fully below, we conclude that:
Hayes’s sentence after remand is the functional equivalent of
life without the possibility of parole; his original sentence of
30 years 4 months plus life with the possibility of parole with
a minimum parole eligibility date of 14 years was not the
functional equivalent of life without parole; and, as a
consequence, the sentence imposed on remand was more
severe, and violates his constitutional rights as expressed in
Hanson.
The Challenged Sentence is the Functional
Equivalent of Life Without the Possibility of
Parole
Hayes argues, and we agree, that the sentence imposed
on remand is, as a practical matter, a sentence of life
without the possibility of parole. This conclusion seems a
matter of common sense, given that his parole eligibility is
past age 100. As the California Supreme Court has
observed, “[w]hen evaluating a sentence that clearly exceeds
the natural life expectancy, . . . it is straightforward to
conclude that the sentence is ‘functionally equivalent’ to
LWOP as an actuarial matter. [Citation.]” (People v.
Contreras (2018) 4 Cal.5th 349, 364 (Contreras).)11
11In Contreras, the majority concluded “that a
sentence of 50 years to life is functionally equivalent to
14
The People do not confront this straightforward
conclusion, or dispute it, but instead contend we should
LWOP” for juvenile offenders. (Contreras, supra, 4 Cal.5th
at p. 369.) The Chief Justice, writing in dissent and joined
by two of her colleagues, disagreed, finding “[n]o plausible
argument exists that [the sentence imposed] is tantamount
to a life term.” (Id. at p. 411 (dis. opn. of Cantil-Sakauye,
C.J.).) The differing views between the majority and the
dissenting opinions turned in part on whether the juvenile
defendants whose sentences were being challenged on
Eighth Amendment grounds would be eligible for parole at
age 60 under the Elderly Parole Program codified at section
3055, or at an acceptable age because of good conduct
credits. (Id. at pp. 374–379.) The majority and dissenting
opinions also took divergent views as to how late in a
defendant’s life expectancy an opportunity for parole would
make a sentence the functional equivalent of life without the
possibility of parole. We need not struggle with these issues
here. Under Hayes’s current sentence, he is statutorily
ineligible for the Elderly Parole Program, because he was
sentenced pursuant to sections 667 and 1170.12, subdivision
(c)(1). (§ 3055, subd. (g).) Further, there is not a suggestion
here that the sentence imposed on Hayes on remand has any
practical effect other than what the Chief Justice described
in her dissent as the hallmarks of life without the possibility
of parole: “Such a sentence ‘“means that . . . [the convict]
will remain in prison the rest of his days.”’ [Citation.] ‘Life
in prison without the possibility of parole.’ . . . ‘gives no
chance for fulfillment outside prison walls, no chance for
reconciliation with society, no hope.’ [Citation.]” (Id. at p.
383 (dis. opn. of Cantil-Sakauye, C.J.).)
15
ignore reality because the courts that have recognized the
importance of natural life expectancy have done so in the
context of evaluating whether life sentences without parole
for juvenile offenders run afoul of the Eight Amendment’s
prohibition against cruel and unusual punishment. We
recognize that the instant case arises in a very different
context than the Eighth Amendment challenges made by
juvenile offenders addressed by the United States Supreme
Court in Graham v. Florida (2010) 560 U.S. 48 (Graham),
and Miller v. Alabama (2012) 567 U.S. 460, and by the
California Supreme Court in Contreras, supra, 4 Cal.5th
349, and People v. Caballero (2012) 55 Cal.4th 262. But for
the purposes of evaluating whether a sentence provides for
any parole consideration during an individual’s expected
natural lifetime, we see no difference between a case where
the defendant who will receive a parole hearing at age 100 is
currently a juvenile or an adult.12 Under the sentence
challenged here, Hayes will not have an opportunity for
parole in his expected lifetime.
12 In Graham, during its discussion of the severity of
sentences, the Supreme Court discussed its prior decisions in
Rummel v. Estelle (1980) 445 U.S. 263 (Rummel) and Solem
v. Helm (1983) 463 U.S. 277 (Solem), both involving adult
offenders. The Graham court stated, “in Solem, the only
previous case striking down a sentence for a term of years as
grossly disproportionate, the defendant’s sentence was
deemed ‘far more severe than the life sentence we considered
in Rummel,’ because it did not give the defendant the
possibility of parole.” (Graham, supra, 560 U.S. at p. 70.)
16
The Sentence Imposed After Remand Was
More Severe, and In Violation of Henderson
This appeal presents the question of whether a
sentence of determinate length that exceeds a defendant’s
life expectancy, and as a consequence provides no realistic
possibility of parole, is more severe than an indeterminate
life sentence plus a term of years that provides an
opportunity for release on parole within the defendant’s
lifetime. As a matter of common sense, it does not seem that
it is a difficult question to answer: faced with the option of
prison for life with no possibility of release, versus prison for
life but with some possibility of release, every person would
choose the latter. Nevertheless, the People urge us to adopt
a bright line rule that “[a]n indeterminate sentence with a
lifetime maximum is always greater than a determinate
sentence for a fixed term of years.” We decline.
To justify the counterintuitive notion that life with the
possibility of parole is somehow worse than life without that
possibility, the People catalogue criminal cases to
demonstrate how difficult it is to obtain release on parole at
the time of first eligibility. The People cite In re Prather
(2010) 50 Cal.4th 238, as an example of eligible defendants
being denied parole on at least four occasions, and cite other
cases where, after multiple failed attempts at parole before
the parole board, a defendant’s ultimate grant of parole was
reversed by the Governor and relief denied by the courts.
(See, e.g., In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis);
17
In re Hare (2010) 189 Cal.App.4th 1278.) None of the cases
cited by the People stand for the proposition that an
opportunity for parole, or the first parole eligibility date, is
an immaterial provision in a sentence; to the contrary,
“‘parole applicants in this state have an expectation that
they will be granted parole unless the Board finds, in the
exercise of its discretion, that they are unsuitable for parole
in light of the circumstances specified by statute and by
regulation.’ ([In re] Rosenkrantz [(2002)] 29 Cal.4th [616,]
654 [].)” (Shaputis, supra, 44 Cal.4th at p. 1258.) None of
the cases refute the common-sense proposition that a
sentence that presents an opportunity for parole is not as
severe as a sentence that provides no such opportunity.13
The People further contend that our Supreme Court
has established a rule that an indeterminate life sentence
with the possibility of parole is always a greater punishment
13 Similarly, as recognized by other state and federal
courts, a sentence imposed on remand after a defendant’s
successful appeal that has the same term of imprisonment as
the original sentence, but provides for later parole
consideration than the original sentence, is more severe, and
constitutionally impermissible. (See, e.g., United States v.
Bello (4th Cir. 1985) 767 F.2d 1065 [comparing sentence of
12 years without parole eligibility and consecutive 5 years
with possibility of parole versus 17-year sentence without
parole]; State v. Thomas (2019) 465 Md. 288 [sentence of 18
years versus 18 years with a minimum parole eligibility date
of 9 years].)
18
than a determinate term, citing People v. Norrell (1996) 13
Cal.4th 1 (Norrell), superceded by statute on other grounds
as recognized in People v. Kramer (2002) 29 Cal.4th 720,
722.14
In Norrell, the defendants were convicted of robbery
and kidnapping for purposes of robbery arising out of the
same course of conduct. (Norrell, supra, 13 Cal.4th at pp. 3–
4.) Pursuant to section 654, which prohibits multiple
punishment, the trial court stayed punishment for the
offense of kidnapping for purposes of robbery, and imposed
sentence on the offense of robbery. (Id. at p. 4.) The trial
court stressed that the decision was very difficult, but that
the defendants’ youth (defendants were 16 and 19 years old
at the time they committed the crimes (id. at p. 3)) was the
deciding factor. (Id. at pp. 4–5.) “In total, [the trial court]
sentenced Norrell to state prison for six years, eight months,
consisting of the upper term of five years for the robbery, one
year for the firearm enhancement, and eight months for the
Vehicle Code violation. It sentenced Lau to state prison for
ten years, eight months, consisting of the upper term of five
years for the robbery, five years for the firearm use
enhancement, and eight months for the Vehicle Code
14 Norrell was a plurality opinion that included a lead
opinion, authored by Justice Mosk and joined by two other
justices, a concurring opinion by Justice Baxter, and a
concurring and dissenting opinion, authored by Justice
Arabian joined by two other justices.
19
violation. . . . Each waived all credits for time served and
waived his right to appeal the sentence.” (Id. at p. 4.)
“The People appealed, contending that the trial court
imposed an unauthorized sentence by staying the sentence
on the ‘greater offense’ of kidnapping for robbery, and
imposing the sentence on the ‘lesser offense’ of robbery.
They argued that the ‘greater offense’ is that offense which
carries the longest potential term of imprisonment, and that,
in this case, the kidnapping for robbery, punishable by life
imprisonment with the possibility of parole (Pen. Code,
§ 209, subd. (b)) was the ‘greater offense’ and the robbery,
punishable by a term of two, three, or five years (id., § 213,
subd. (a)(2)) was the ‘lesser offense.’” (Norrell, supra, 13
Cal.4th at p. 5.)
The appellate court dismissed the People’s appeal.
(Norrell, supra, 13 Cal.4th at p. 5.) The Supreme Court
affirmed, holding that the trial court did not impose an
unauthorized sentence, although each opinion (the opinions
of Justice Mosk, Justice Baxter, and Justice Arabian)
espoused different reasoning. As relevant here, Justice
Mosk reasoned section 654 expressly provided that a
defendant could be punished for either the greater or lesser
offense, and the trial court had discretion to impose a
sentence commensurate with what it determined on the facts
to be the defendants’ culpability.15 (Id. at pp. 5–9.)
15 The Legislature has since amended section 654 to
require that the punishment for the greater offense is
imposed, and any sentences for lesser offenses are stayed.
20
Addressing Justice Arabian’s opinion, Justice Mosk
stated: “The concurring and dissenting opinion agrees with
our conclusion that the trial court acted within its discretion
in this case in staying the punishment for kidnapping for
robbery. It does so, however, only because the trial court
imposed a greater overall sentence than that which might
have been imposed for the latter crime—punishable by life
imprisonment with the possibility of parole—which in
Norrell’s case might have resulted in probation, i.e., no
prison term at all, and in Lau’s case, because he was
ineligible for parole, could have resulted in a prison sentence
shorter than ten years, eight months, if he were paroled after
the minimum period of confinement of seven years (see Pen.
Code, § 3046). The approach is unduly formalistic: as the
People pointed out at oral argument, the mere fact that
defendants requested, and the People opposed, a stay of the
sentence for kidnapping for robbery—and that defendants
waived their right to appeal imposition of the sentence for
robbery—demonstrates that life imprisonment with
possibility of parole was, in any real sense, the greater, not
the lesser, punishment.” (Norrell, supra, 13 Cal.4th at
pp. 9–10.)
Norrell was not directly concerned with determining
whether a determinate or indeterminate term is greater;
rather, the central issue was the correct interpretation of
section 654. The comment in Justice Mosk’s opinion that
“life imprisonment with possibility of parole was, in any real
sense, the greater not lesser, punishment” (Norrell, supra, 13
21
Cal.4th at p. 10), was based upon the specific facts of the
sentencing possibilities before the trial court, and the
parties’ assessment of those possibilities. Justice Mosk’s
statement in Norrell does not support the broad rule that life
with the possibility of parole is always more severe than a
determinate term of years, nor does the opinion stand for the
proposition that terms of parole eligibility are wholly
irrelevant to comparing the severity of two different
sentences.
The People emphasize the careful analysis conducted
by the trial court in arriving at the determinate sentence on
remand: the trial court considered the appropriate factors in
aggravation, evaluated Hayes’s prior, violent criminal
history, and exercised its discretion to strike three prior
strike convictions and to run portions of the sentence
concurrently instead of consecutively. We agree that the
trial court exercised great care to implement faithfully the
statutory mandates that govern sentencing. The rule in
Henderson, supra, 60 Cal.2nd 482, however, is one of
constitutional dimension, and compliance with the Penal
Code provisions that govern sentencing alone does not
satisfy the constitutional prohibition against imposing a
more severe sentence following a successful appeal on the
ground that the evidence was insufficient to support the
conviction. Following his trial and original sentencing,
Hayes appealed the count of conviction that subjected him to
life with a minimum parole eligibility date of 14 years plus a
determinate term of 30 years 4 months, and prevailed in
22
showing that the evidence was insufficient to support the
alleged kidnapping for the purposes of robbery. For his
efforts to result in replacing an overall sentence that had
afforded him a meaningful opportunity for release within his
lifetime with a de facto sentence of life without a realistic
possibility of parole unquestionably penalized Hayes for
having exercised his right to appeal. (Hanson, supra, 23
Cal.4th at p. 365; Henderson, supra, 60 Cal.2d at p. 497.)
Accordingly, we vacate Hayes’s sentence and remand the
matter to the trial court for resentencing.
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DISPOSITION
We vacate Hayes’s sentence and remand the matter to
the trial court for resentencing consistent with the principles
expressed herein. The new sentence imposed must not be
the functional equivalent of life without the possibility of
parole, and the trial court has significant latitude in
fashioning such a sentence—whether by reducing the
aggregate term of years comprising a determinate sentence
or otherwise ensuring meaningful parole eligibility.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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