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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E054210
v. (Super.Ct.No. FSB051948)
GLENN DAVID O‟NEAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino 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.
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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),1 and the trial court found true various alleged 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
1 All further statutory references are to the Penal Code unless otherwise indicated.
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appointment of counsel, but our resolution of the sentencing and fine issues render the
purported error harmless, as we discuss below.
FACTUAL AND PROCEDURAL BACKGROUND
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
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the term actually imposed would be 17 years eight months, the same sentence the trial
court imposed following defendant‟s first trial.2
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.
DISCUSSION
1.
SENTENCING ERROR
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 “„sentence the defendant to one of the three terms of imprisonment
2 Different judges presided over defendant‟s first and second trials.
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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 term3
and five years for the prior serious felony.
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.]” (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
3 The trial court did not realize that defendant‟s sentence of 17 years eight months
in his first trial was calculated based on two prior prison term enhancements. On retrial,
however, the prosecutor alleged only one prior prison term enhancement. Hence, the
difference of one year from the sentence imposed in the original trial and the authorized
sentence following retrial.
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appeal. (Ibid.) 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.
2.
DENIAL OF REQUEST TO REAPPOINT COUNSEL
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,
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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.
DISPOSITION
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.
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