People v. Jones CA4/2

Filed 1/27/22 P. v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E077323

v. (Super.Ct.No. RIF100567)

EARNEST LEE JONES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and A. Natasha

Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

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 INTRODUCTION

A jury found defendant and appellant Earnest Lee Jones guilty of attempted

voluntary manslaughter (Pen. Code,1 §§ 664, 192, subd. (a), count 1), assault with a

semiautomatic firearm upon four different individuals (§ 245, subd. (b), counts 2, 4, 6 &

7), attempted murder (§§ 664, 187, count 3), and discharging a firearm at an occupied

vehicle (§ 246, count 5). The jury also found true firearm and great bodily injury

allegations as to the various counts (§§ 12022.53, subd. (d), 12022.5, subd. (a)(1) &

1192.7, subd. (c)(8).) (People v. Jones (Dec. 17, 2004, E034706) [nonpub. opn.])2 The

trial court sentenced defendant to an indeterminate term of 32 years to life, plus a

determinate prison term of 17 years. The case was remanded on three occasions for

resentencing, following three prior appeals.

This fourth appeal arises from a resentencing hearing that was conducted after this

court remanded for resentencing, directing the trial court to sentence defendant to the

middle term of six years on count 6 and to stay the sentence and enhancement on count 4

pursuant to section 654. (People v. Jones, supra, E073637.) Defendant now contends

that the trial court erred in declining to consider his request to strike a firearm

enhancement since it had power to revisit his entire sentence on remand under the full

1 All further statutory references will be to the Penal Code unless otherwise noted.

2 Defendant filed a request for this court to take judicial notice of our opinions in
case Nos. E034706, E041222, and E073637. (See People v. Jones, supra, E034706;
People v. Jones (Feb. 27, 2009, E041222) [nonpub. opn.]; and People v. Jones (Dec. 11,
2020, E073637) [nonpub.opn.].) By order filed on August 2, 2021, we granted that
request.

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resentencing rule. He further argues that his counsel was ineffective for failing to inform

the court that it had the power to revisit his entire sentence on remand. The People

concede the court’s error. We agree the matter must be remanded for full resentencing.

PROCEDURAL BACKGROUND3

Defendant filed his first appeal in 2003 and contended that the trial court failed to

instruct the jury sua sponte with CALJIC No. 8.40, defining voluntary manslaughter. We

affirmed the judgment but agreed with the People that the court had improperly struck or

stayed the imposition of an enhancement under former section 12022.53, subdivision (d),

on count 5. We thus remanded the matter for resentencing. (People v. Jones, supra,

E034706.)

At the resentencing hearing on May 12, 2005, the trial court imposed five years on

count 5, to run concurrent to count 6, and imposed 25 years to life on the former section

12022.53, subdivision (d) enhancement on count 5, to run consecutive to the sentence

imposed on count 3. (People v. Jones, supra, E041222.) It also imposed the upper term

of nine years on count 6 (the principal offense) and imposed the midterm of six years on

count 4 and stayed the term pursuant to section 654, as it had previously. The total

sentence imposed was 57 years to life, plus a determinate term of 13 years.

In 2006, defendant appealed from his resentencing. He argued that at the

resentencing hearing: (1) the trial court erred by imposing a consecutive enhancement of

25 years to life under former section 12022.53, subdivision (d), on count 5; (2) the court

3 The extensive history of the sentencing and resentencing in this case is taken
from our opinion in People v. Jones, supra, E073637.
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erred under Cunningham v. California (2007) 549 U.S. 270, Blakely v. Washington

(2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, in imposing the

upper term as to count 6; and (3) on count 3, the court sentenced him to the indeterminate

term of life with a minimum parole eligibility of seven years, but then improperly added

the 25-year-to-life enhancement under former section 12022.53, subdivision (d). (People

v. Jones, supra, E041222.) We concluded that the court properly sentenced defendant on

count 3. As to count 6, we agreed that the court erred since it imposed the upper term

based on a fact other than a prior conviction, and the fact was not the result of a jury

finding; thus, we struck the upper term sentence on count 6 and remanded for

resentencing. (People v. Jones, supra, E041222.) As to count 5, we did not agree with

defendant’s claim. He relied upon People v. Mustafaa (1994) 22 Cap.App.4th 1305

(Mustafaa) to argue that the trial court could not impose a consecutive enhancement

under former section 12022.53, subdivision (d), on count 5 since it imposed a concurrent

sentence on the underlying conviction. We stated that nothing in the statutory language

of former section 12022.53 barred the enhancement from being imposed consecutively on

a count that the court had ordered to run concurrent to the principal term. (People v.

Jones, supra, E041222, at *7-8.) We held that defendant’s reliance on Mustafaa was

misplaced since that case concerned the imposition of a gun use enhancement under

former section 12022.5, subdivision (a), not the enhancement under former section

12022.53, subdivision (d). (Jones, supra, E041222, at *9.)

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 The court held another resentencing hearing on June 4, 2009. It followed this

Court’s direction to resentence defendant. In doing so, it sentenced defendant on count 6

to the midterm of six years.

On or around May 6, 2019, the Correctional Case Records Manager from the

California Department of Corrections and Rehabilitation (CDCR) sent a letter to the court

stating that the minute order dated May 12, 2005, and the amended abstract of judgment

dated May 17, 2005, reflected that the term on count 5 was imposed concurrently, and the

former section 12022.53, subdivision (d) enhancement on count 5 was imposed

consecutively to count 3. The letter stated that pursuant to Mustafaa, supra, 22

Cal.App.4th 1305, it was inappropriate to impose a concurrent term for an underlying

offense and impose a consecutive term on the enhancement attached to the underlying

crime. The letter asked the court to determine if a correction was required and noted that

when notified by the CDCR that an illegal sentence existed, the trial court is entitled to

reconsider all sentencing choices. (People v. Hill (1986) 185 Cal.App.3d 831, 834

(Hill).)

In response to the letter, the court held another resentencing hearing on July 31,

2019. At the outset, it noted for the record that it conducted a long chambers conference

with the parties about the “tortured sentencing history of this case.” The court stated the

attorneys believed that, in order to get closest to the original sentence without violating

any resentencing rules, the total sentence should be 16 years four months, plus 32 years

to life. Both the prosecutor and defense counsel confirmed their understanding of the

sentence. The court proceeded to sentence defendant. It determined the principal term

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for the indeterminate sentence would be count 3 and sentenced him to seven years to life

on that count. For the former section 12022.53, subdivision (d) enhancement on count 3,

the court sentenced him to an additional 25 years to life, consecutive, for a total term of

32 years to life. The court selected count 6 as the principal term for the determinate

sentence and sentenced defendant to the upper term of nine years,4 plus the middle term

of four years consecutive on the former section 12022.5, subdivision (a) enhancement,

for a total of 13 years. On count 2, the court imposed three years four months to run

consecutive to the term in count 6. On count 1, the court imposed six years but stayed it

pursuant to section 654. On count 4, it imposed a total of 10 years to run concurrent to

all other terms. On count 5, the court imposed the midterm of five years, plus a

consecutive 25 years to life on the former section 12022.53, subdivision (d) enhancement

“to run concurrent to all other terms.” On count 7, the court imposed a total of 10 years

to run concurrent to the other terms. When the court asked the parties if there was

anything further to discuss, both counsel simply thanked the court.

Defendant appealed, contending that in resentencing him, the court erred in

imposing the upper term on count 6 and in imposing the term on count 4 concurrently,

rather than staying it under section 654. The People conceded, and this court remanded

the matter once again. We stated, “The matter is remanded with directions for the trial

4 The imposition of the nine-year term was directly contrary to this court’s
determination in a prior appeal (People v. Jones, supra, E041222) that imposition of the
upper term on count 6 was barred because the court chose the upper term based upon
impermissible facts. (See, Cunningham v. California, supra, 549 U.S. 270, Blakely v.
Washington, supra, 542 U.S. 296, and Apprendi v. New Jersey, supra, 530 U.S. 466.)
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court to sentence defendant to the middle term of six years on count 6 and to stay the

sentence and enhancement on count 4 pursuant to section 654. In all other respects, the

judgment is affirmed.” (People v. Jones, supra, E073637.)

The trial court held another resentencing hearing on June 7, 2021. At the outset,

the court noted that this court issued a remittitur in case No. E073637. The court noted

that it did not do the trial or the sentencing, but it reviewed the remittitur. It proceeded to

read the remittitur on the record. The court then stated, “So that’s what I’m willing to do

today, is to follow the direction from Court of Appeal.” Defendant addressed the court,

stating: “. . . so for Count 4 in my case, it says on the paper right here that Matthew

Lopez suffered great bodily injuries, and that’s not a factor in my case. That’s the highest

count that I have, the attempted murder with GBI [great bodily injury], but he never even

suffered any GBI. Not at all. . . .”

The court responded, “I’m a trial judge and . . . I have to follow the directions of

the Court of Appeal because they are my appellate court. So they are directing the trial

judge to change the sentence, and they said, ‘In all other respects, the judgment is

affirmed.’ [¶] There is [sic] channels available if you wish to continue to challenge your

sentence and want to file a writ of habeas corpus, but I can’t take up the issues that you’re

raising today, insufficiency of evidence or the other issues you’re attempting to raise. I

can’t do that today, sir.”

Defendant said, “Does the 1170 or 1260 apply to me?” The court said if defendant

wanted to make a motion, it would have to be heard by the trial judge, and that if he

wanted to appear before the trial judge, it could continue the hearing. Defendant said he

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wanted to appear before the trial judge but then continued to assert that Matthew Lopez

never suffered any GBI. The court said it did not know anything about the case and

asked his attorney what she wanted to do. Counsel agreed with the court, stating, “The

Court lost jurisdiction at this point to do anything else other than issue what the remittitur

says.” She explained to defendant that even if they continued the matter to be heard by

the trial judge, the trial judge would not have the jurisdiction to do anything else.

Counsel then asked the court to follow the directions of the remittitur. The court stated,

“I’m going to go ahead and do it because my hands are tied. I cannot do anything else.

And what you’re raising needs to be raised in the form of a motion at a later time. All

I’m doing is implementing the Court of Appeal’s direction to the trial judge.” It then

reduced the sentence on count 6 to six years and stayed the term on count 4 under section

654.

DISCUSSION

The Case Must Be Remanded For Resentencing

Defendant contends that on remand, the trial court erred in refusing to consider his

request to strike a firearm enhancement.5 He claims that under the full resentencing rule,

the court had the power to revisit his entire sentence, and it was “[i]n no way . . . limited

to the formality of making the modifications specifically ordered by this Court.” The

5 We note that at the resentencing hearing, defendant argued as to count 4 that the
victim did not suffer GBI. However, he appears to have been disputing the firearm
enhancement on count 3, rather than count 4, in light of his comment, “That’s the highest
count that I have, the attempted murder with GBI, . . .” (See People v. Jones, supra,
E073637.)
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People concede. We agree the matter must be remanded for full resentencing in light of

the rule set forth in People v. Buycks (2018) 5 Cal.5th 857 (Buycks).

The established general rule applicable to the power of the trial court on remand is

that when an appellate court’s reversal is accompanied by directions requiring specific

proceedings on remand, those directions are binding on the trial court and must be

followed. (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.) “The order of the

reviewing court is contained in its remittitur, which defines the scope of the jurisdiction

of the court to which the matter is returned.” (Griset v. Fair Political Practices Com.

(2001) 25 Cal.4th 688, 701.) When“ ‘there has been a decision upon appeal, the trial

court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined

by the terms of the remittitur. The trial court is empowered to act only in accordance

with the direction of the reviewing court; action which does not conform to those

directions is void.’ ” (Frankel v. Four Star International, Inc. (1980) 104 Cal.App.3d

897, 902.)

The trial court here acted in accordance with this court’s prior opinion in case

No. E073637 by sentencing defendant to the middle term of six years on count 6 and

staying the sentence and enhancement on count 4 pursuant to section 654. We stated,

“The matter is remanded with directions for the trial court to sentence defendant to the

middle term of six years on count 6 and to stay the sentence and enhancement on count 4

pursuant to section 654. In all other respects, the judgment is affirmed.” (People v.

Jones, supra, E073637.) The directions given to the trial court explicitly circumscribed

the scope of the court’s authority on remand and did not permit it to consider striking

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defendant’s firearm enhancement. Accordingly, the court declined to entertain

defendant’s request to strike the enhancement on the ground that its discretion was

limited to implementing this court’s directives concerning counts 4 and 6. (See People v.

Vizcarra (2015) 236 Cal.App.4th 422, 442 [trial court “correctly determined that the

limited scope of its jurisdiction on remand precluded it from modifying other aspects” of

the sentence beyond the appellate court’s directions].)

This court’s directions in the appeal immediately preceding this one were

unnecessarily too specific. Because the trial court had again sentenced defendant to the

upper term of nine years on count 6, and we had previously determined that such

sentence was erroneous, the disposition should have reversed defendant’s sentence and

remanded the matter for a full resentencing, as we did in defendant’s prior appeal.

(People v. Jones, supra, E041222.) In Buycks, supra, 5 Cal.5th 857, our Supreme Court

held that “when part of a sentence is stricken on review, on remand for resentencing ‘a

full resentencing as to all counts is appropriate, so the trial court can exercise its

sentencing discretion in light of the changed circumstances.’ ” (Id. at p. 893.) In this

case, in the appeal immediately preceding this one (People v. Jones, supra, E073637), we

again struck defendant’s nine-year term on count 6. Under the Buycks rule, he was

entitled to a full resentencing on remand.

Defendant avers that the court abused its discretion “[b]y mistakenly ruling that it

had no power to strike [his] firearm enhancement,” and that remand for resentencing is

thus required. In a similar claim, he argues that he received ineffective assistance of

counsel since his attorney incorrectly believed the court had no power to make any

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modifications to his sentence beyond those ordered by this court and failed to explain to

the court that the full resentencing rule applied. However, we need not reach these

claims as we determine defendant is entitled to a full resentencing hearing.6

DISPOSITION

Defendant’s sentence is ordered vacated. We remand for a full resentencing

hearing consistent with this opinion. In all other respects, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

RAMIREZ
P. J.

MILLER
J.

6 We note that the trial court was only empowered to act in accordance with our
directives; thus, defendant cannot demonstrate that his counsel was ineffective. We
further note in agreeing with defendant that the trial court had the authority to consider
his entire sentencing scheme on remand under the full resentencing rule, respondent adds
that the court had discretion under section 12022.53, subdivision (h), to consider his
request to strike the firearm enhancement. Section 12022.53, subdivision (h), provides
that, “The court may, in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be imposed by this
section” and “[t]he authority provided by this subdivision applies to any resentencing that
may occur pursuant to any other law.” We agree.

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