People v. Trammel

Filed 12/18/23 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A166756

v. (San Francisco City & County
TERRELL TRAMMEL, Super Ct. Nos., SCN 232509,
CT20000300 & CT20004019)
Defendant and Appellant.
ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

BY THE COURT:
On its own motion, the court orders that the opinion filed on
November 21, 2023, be modified as follows:
On the second line of page 5 (starting with “violated double
jeopardy . . . ,”), the word “recognizes” should be deleted and replaced with
“recognize.”
On line 7 of page 26 (starting with “V vandalism charge . . .”),
“count VIII” should be deleted and replated with “count XIII.”
On line 9 of page 26 (starting with “grounds.”), “(18 months)” should be
deleted and replaced with “(16 months).”
There is no change in judgment.
Dated:
____________________________
Humes, P.J.

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Filed 11/21/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A166756

v. (San Francisco City & County
TERRELL TRAMMEL, Super Ct. Nos., SCN 232509,
CT20000300 & CT20004019)
Defendant and Appellant.

In his first appeal in this matter, defendant Terrell Trammel
challenged the trial court’s sentencing order, which imposed an aggregate 12-
year prison term for numerous convictions arising out of his violent
relationship with his former girlfriend, M.T. We agreed with Trammel that
the trial court erroneously failed to stay the punishment for two convictions
pursuant to Penal Code 1 section 654 and remanded the matter for a full
resentencing. (People v. Trammel (June 30, 2022, A161381) [nonpub. opn.].) 2

1 All statutory references are to the Penal Code unless otherwise

specified.
2Since the filing of our first opinion in this matter, it has come to our
attention that there is a discrepancy with respect to the spelling of the
defendant’s last name. While the bulk of the documents refer to the
defendant as “Trammel,” including pleadings filed by his own attorneys,
other documents (such as police reports and the second notice of appeal)
reference him as “Trammell.” For purposes of consistency with our prior

1
 On remand, the trial court corrected its section 654 errors, resentencing
Trammel to a total prison term of 12 years, four months. In this second
appeal, Trammel argues that his new sentence runs afoul of the prohibition
against double jeopardy set forth in Article I, section 13 of the California
Constitution. We agree and will remand to correct this error as well as an
error with respect to custody credits.
In remanding the case, however, we reject Trammel’s request to have
another full resentencing hearing before a different trial judge. As we
discuss further below, the trial court here understood it was engaged in a full
resentencing, thoughtfully considered the parties’ arguments, and clearly
articulated its reasons for imposing sentence as it did. Given these facts—
along with the murkiness of the restrictions on resentencing that exist in this
context—we see absolutely no showing of vindictiveness in the trial court’s
actions.

I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts with respect to this criminal prosecution are
detailed in our prior unpublished opinion in this matter, and we need not
repeat them here at length. In August 2020, a jury found Trammel guilty of
burglary (count I), making a criminal threat as to M.T. (count II), vandalism
(count V), three counts of domestic violence (counts VII, IX, and XII), and
kidnapping (count XI). The jury found Trammel not guilty of three charged
assaults by force likely to cause great bodily injury (counts VIII, X, and XIII),
but found him guilty of the lesser included offense of misdemeanor assault
(§ 240) with respect to each charge. (People v. Trammel, supra, A161381.)

opinion, we will refer to the defendant herein as “Trammel,” but clarify that
we are referring to the individual identified by CII No. 11688126.

2
 Trammel was sentenced to a total of 12 years in state prison in
November 2020. Specifically, the trial court ordered: the upper term of eight
years for the principal count, kidnapping (count XI); a consecutive 16 months
for burglary (count I), a consecutive eight months for making criminal threats
(count II); and a consecutive two years for the June 2017 domestic violence
conviction (count VII), one year for the conviction, itself, and an additional
year on the attached arming enhancement. The trial court imposed
concurrent three-year terms for the remaining domestic violence convictions
(counts IX and XII) and concurrent time-served sentences for the remaining
misdemeanors (counts V, VIII, X, and XIII). (People v. Trammel, supra,
A161381.)
On appeal, we concluded that the trial court erred under section 654 by
imposing separate punishment for both domestic violence under count VII
and simple assault under count VIII, both of which related to the same June
2017 domestic violence incident. We similarly found that section 654
precluded punishment for both domestic violence under count IX and simple
assault under count X with respect to the domestic violence incident on
October 18, 2019. We remanded the matter for resentencing. (People v.
Trammel, supra, A161381.)
On November 23, 2022, the trial court conducted a full resentencing in
accordance with our instructions, commenting that it was “of great
consequence” that the new sentencing laws effective on January 1, 2022,
were applicable to Trammel’s case and discussing the relevant statutory
changes. The court reviewed the presentence report, a resentencing
memorandum from the prosecutor and a resentencing memorandum from the
defense, the latter of which included a social worker’s mitigation assessment.

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The defense requested a sentence of three years, eight months. The
prosecutor urged the court to impose a sentence of 14 years.
The trial court resentenced Trammel to 12 years and four months in
prison. Specifically, the court again ordered the upper term of eight years for
the principal count, kidnapping (count XI); a consecutive 16 months for
burglary (count I); and a consecutive two years for the June 2017 domestic
violence conviction (count VII), one year for the conviction and an additional
year on the attached arming enhancement. The court stayed the punishment
for making criminal threats (count II (eight months)) and for the
misdemeanors (counts V (1 year), VIII (180 days), X (180 days), and XIII (180
days) pursuant to section 654. Finally, rather than imposing concurrent
three-year terms for the remaining domestic violence convictions (counts IX
and XII), the trial court imposed a consecutive one-year term on count IX and
a concurrent one-year term on count XII.
In reaching this sentence, the court indicated it had considered the
mitigation report but determined that no evidence suggested childhood
trauma was related to the commission of the crimes. It further found that
imposition of the lower term would be contrary to the interests of justice,
noting that Trammel showed no remorse for the crimes. The court
additionally concluded that the middle term was not appropriate given
Trammel’s history of prior convictions (which the prosecutor established with
certified records of conviction) in aggravation and no factors in mitigation.
When defense counsel commented that the sentence was four months longer
than the court had previously imposed, the court indicated its awareness of
this fact.
Trammel again appealed.

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 II. DISCUSSION
Trammel argues that imposition of a longer sentence on remand
violated double jeopardy principles which recognizes that defendants should
not be required to risk being given greater punishment for successfully
exercising their appellate rights. The Attorney General disagrees, asserting
that, since Trammel’s original sentence was “unauthorized,” there was no
limitation on the trial court’s power to impose a greater sentence on remand.
Resolution of this dispute requires analysis of two intersecting lines of
Supreme Court precedent. We thus begin by discussing each in turn.
A. Supreme Court Double Jeopardy Precedent
In the seminal case of People v. Henderson (1963) 60 Cal.2d 482
(Henderson), the defendant was convicted of first degree murder and
sentenced to life imprisonment. Following reversal of that conviction, he was
again tried and convicted, and the jury fixed the penalty at death. (Id. at
p. 484.) The defendant argued that the prohibition against double jeopardy
precluded imposing the death sentence after reversal of the first judgment
sentencing him to life imprisonment. (Id. at p. 495.) The Supreme Court
agreed, holding that the California Constitution’s guarantee against double
jeopardy (art. I, § 13) prohibited the imposition of a more severe sentence
upon retrial. (Henderson, at pp. 496–497.) The Court reasoned: “A
defendant’s right of appeal from an erroneous judgment is unreasonably
impaired when he is required to risk his life to invoke that right. Since the
state has no interest in preserving erroneous judgments, it has no interest in
foreclosing appeals therefrom by imposing unreasonable conditions on the
right to appeal.” (Id. at p. 497.)
Shortly thereafter, the Supreme Court reaffirmed Henderson’s
reasoning in People v. Ali (1967) 66 Cal.2d 277 (Ali). There, the defendant

5
had been sentenced to concurrent terms for three credit card offenses but was
subsequently retried. (Id. at pp. 278, 281.) At his second sentencing, he was
sentenced to consecutive terms for the same offenses that had previously
been ordered to run concurrently. (Id. at pp. 281–282.) Applying Henderson,
the Court opined: “Where a defendant has been sentenced to concurrent
terms and then upon a retrial is sentenced to consecutive terms for the same
offenses, his [or her] punishment has been increased by indirect means. The
reasoning which prevents an increase by direct means would seem to be
applicable in such a situation, as a defendant should not be required to risk
being given greater punishment on a retrial for the privilege of exercising his
[or her] right to appeal.” (Id. at p. 281.)
In People v. Collins (1978) 21 Cal.3d 208 (Collins), the defendant was
initially charged with numerous robbery and sexual offenses, but pleaded
guilty to one count of oral copulation, after which the remaining counts and
various enhancement allegations were dismissed. The court then suspended
criminal proceedings, found the defendant to be a mentally disordered sex
offender, and committed him to a state hospital for an indefinite period. (Id.
at p. 211.) While the defendant was institutionalized, former section 288a
(the oral copulation statute) was repealed and reenacted in a new section
with the same number. Thereafter, it was determined that the defendant
was no longer a danger to others, and criminal proceedings were reinstated.
Rejecting the defendant’s argument that it had no jurisdiction to sentence
him because of the repeal of the underlying statute, the trial court sentenced
the defendant to state prison for one to 15 years, with credit for the time he
had served at the state hospital. (Id. at pp. 211–212.)
The Supreme Court reversed the conviction, concluding that the trial
court erred in imposing sentence because the conduct which the defendant

6
admitted in pleading guilty was no longer punishable at the time of
sentencing. (Collins, supra, 21 Cal.3d at p. 212.) It then considered the effect
of its reversal on the dismissed counts. (Id. at p. 214.) Noting that “[c]ritical
to plea bargaining is the concept of reciprocal benefits,” the Court concluded
that, in order for the prosecution to get the benefit of its bargain, the
dismissed counts must be restored. However, since the defendant had not
repudiated the plea bargain by attacking his guilty plea, he was also entitled
to the benefit of his bargain. (Id. at pp. 214–216.) To craft an appropriate
remedy, the Court turned to “a line of cases based on principles of double
jeopardy” in which its concerns were “specifically to preclude vindictiveness
and more generally to avoid penalizing a defendant for pursuing a successful
appeal.” (Ibid.) Citing Henderson for the “long recognized” principal that
“the state has no interest in preserving erroneous judgments,” the Supreme
Court concluded that the rights of the prosecution and the defendant could
best be protected by permitting the state to revive one or more of the
dismissed counts but limiting the defendant’s potential sentence to not more
than three years in state prison, the comparable term of punishment that
had been set by the determinate sentencing law (DSL). (Collins, at p. 216.)
In People v. Hanson (2000) 23 Cal.4th 355 (Hanson), the Supreme
Court considered whether the double jeopardy principles set forth in
Henderson and its progeny should apply to an increase in a defendant’s
restitution fine upon resentencing. (Hanson, at p. 357.) The Court concluded
that such fines constitute punishment and could find “no principled basis for
excluding them from the rationale of Henderson.” (Hanson, at p. 357.) In
making this determination, the Court expressly rejected the appellate court’s
conclusion that it could find no cogent reasons in this context to construe the
state double jeopardy prohibition any more broadly than its federal

7
counterpart, which generally “ ‘imposes no restrictions upon the length of a
sentence imposed upon reconviction.’ ” (Id. at p. 358, quoting North Carolina
v. Pearce (1969) 395 U.S. 711, 719 (Pearce).) The cogent reason, the Supreme
Court reaffirmed, was Henderson because its “ ‘rule . . . protecting defendants
from receiving a greater sentence if reconvicted after a successful appeal
[citations] is one instance where [the Court has] interpreted the state double
jeopardy clause more broadly than the federal clause.’ ” (Hanson, at p. 364;
see also id. at p. 365 [“ ‘Although presented with both the opportunity to do so
and subsequent clarification of federal constitutional law, the court has never
retreated from the rationale or holding of Henderson.’ ”].) Thus, “under
California’s Constitution the proper focus with respect to resentencing is
whether increased punishment operates to penalize the defendant for
exercising the right of appeal.” (Id. at p. 365.)
Indeed, the Supreme Court found the Henderson rule so fundamental
that it further opined: “[E]ven if we were to find our state double jeopardy
clause does not compel the holding in Henderson, we would not hesitate to
enforce the same rule on alternate state due process grounds.” (Hanson,
supra, 23 Cal.4th at p. 366.) The Court noted that, in Pearce, the United
States Supreme Court had “attempted to provide a modicum of protection
against improper resentencing by cautioning that ‘[d]ue process of law . . .
requires that vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he receives
after a new trial.’ ” (Hanson, at p. 366.) In our high court’s view, however,
“vindictiveness is only one of the evils the rule in Henderson forestalls. More
basically, it is the chilling effect on the right to appeal generated by the risk
of a more severe punishment that lies at its core. [Citations.] Moreover, as
the [United States] Supreme Court itself acknowledged: ‘The existence of a

8
retaliatory motivation would, of course, be extremely difficult to prove in any
individual case.’ ” (Hanson, at p. 366.) In contrast, the Court cited with
approval an Alaska Supreme Court opinion which “[t]ranslat[ed] the
rationale of Henderson into due process terms.” 3 (Hanson, at p. 366.)
More recently, in a case involving a different Henderson, the Supreme
Court determined that the trial court was unaware at sentencing under the
three strikes law that it had concurrent sentencing discretion when
sentencing on qualifying offenses committed on the same occasion or arising
out of the same set of operative facts. It therefore remanded for a full
resentencing. (People v. Henderson (2022) 14 Cal.5th 34, 56.) In doing so, it
confirmed that “because ‘ “a defendant should not be required to risk being
given greater punishment . . . for the privilege of exercising his right to
appeal” ’ [citing Hanson and Ali], the court on remand may not impose an
aggregate sentence greater than the one defendant initially received.”
(People v. Henderson, at p. 56.)
B. The Serrato Exception to Double Jeopardy
In 1973, the Supreme Court discussed an exception to its double
jeopardy precedent in People v. Serrato (1973) 9 Cal.3d 753 (Serrato),

3 As the Alaska Supreme Court explained: “ ‘[I]f a more severe
sentence may be imposed after retrial for any reason, there will always be a
definite apprehension on the part of the accused that a heavier sentence may
be imposed. . . . Such deterrence violates the due process clause of the Alaska
Constitution. The fundamental standard of procedural fairness, which is the
basic due process right claimed in this case, forbids placing a limitation on
the defendant’s right to a fair trial by requiring a defendant to barter with
freedom for the opportunity of exercising it. [Citation.] The state has no
valid interest in imposing unreasonable conditions on [a defendant’s]
legitimate exercise of his [or her] due process right.’ ” (Hanson, supra, 23
Cal.4th at pp. 366–367, quoting Shagloak v. State (Alaska 1979) 597 P.2d
142, 145.)

9
disapproved on another ground as stated in People v. Fosselman (1983) 33
Cal.3d 572, 583, fn.1. In Serrato, the two defendants had been convicted by a
jury of felony possession of a firebomb. (Serrato, at p. 756.) The defendants
moved for a new trial and the trial court purported to modify their
convictions to misdemeanor disturbing the peace. It then placed them on
probation for two years on the condition that each pay a fine of $125. (Id. at
pp. 756–757 & fn. 2.) The defendants appealed from the order granting
probation. (Id. at p. 756.)
Noting that a trial court considering a motion for a new trial is
statutorily authorized to “modify the verdict to a lesser degree of the crime
found by the jury, or to a lesser crime included therein” (Serrato, supra, 9
Cal.3d at p. 757 & fn. 3), our high court concluded that the trial court had
exceeded its statutory authority and violated due process in the case because
disturbing the peace was not a lesser included offense of possession of a
firebomb. (Id. at p. 758.) The Court then turned to the appropriate
procedure on remand. The defendants argued that they were entitled to
dismissal or a judgment of acquittal on double jeopardy grounds because the
court’s action in modifying the verdict was an implied acquittal. (Id. at p.
759.)
In rejecting this claim, the Court began by reciting the “familiar
principle” that a defendant who has successfully moved to have a conviction
set aside “impliedly waives any objection to being retried” on the original
charge. (Serrato, supra, 9 Cal.3d at pp. 759–760.) The Court also
acknowledged another well-established rule: “[W]here a trier of the facts
finds the defendant guilty of a lesser degree of the offense charged, or of a
lesser included offense, there is an implied acquittal of the greater offense.”
(Id. at p. 760.) And it confirmed that “[i]f in lieu of granting a new trial the

10
court decides to modify the verdict to a lesser included offense, and this
modified verdict ultimately ripens into a final judgment of conviction, the
conviction bars further prosecution of either the offense charged or the lesser
offense.” (Id. at p. 761.)
The Supreme Court determined, however, that if a trial court reviewing
a new trial motion concludes that a verdict should be modified to an
uncharged offense, it should grant a new trial, not an acquittal. (Serrato,
supra, 9 Cal.3d at p. 762.) The Court continued: “[L]ogic does not reveal any
fact-finding which would support a modification to an offense neither charged
nor proved. What appears is that the trial court desired to exercise an
unauthorized leniency. The fact that the court imposed probation and a fine
implies the court found that the defendants were guilty of some offense. But
if they are not being punished for the offense found by the jury, we have no
clue to any other basis of punishment.” (Id. at pp. 762-763, italics added.)
The Court also rejected the defendant’s alternate contention that they
were at least protected from more severe punishment under Henderson and
its progeny. (Serrato, supra, 9 Cal.3d at p. 763.) Specifically, it reasoned
that, “[i]n the Henderson case, as in each of the cited cases which followed it,
the sentence imposed after the first trial was a lawful one, within the limits
of the discretion conferred by statute for the offense of which the defendant
had been convicted. The judgments pronounced at the first trials were
reversed because of errors having nothing to do with the sentences.” (Id. at
p. 764.) In contrast, when “a trial court pronounces an unauthorized
sentence,” the “rule is otherwise. (Ibid.) “Such a sentence is subject to being
set aside judicially and is no bar to the imposition of a proper judgment
thereafter, even though it is more severe than the original unauthorized
pronouncement.” (Ibid.) The Court gave three examples, all of which

11
involved unauthorized sentences which were impermissibly lenient. (See In
re Sandel (1966) 64 Cal.2d 412, 418 [unauthorized concurrent sentence for
escape judicially modified to consecutive sentence]; People v. Massengale
(1970) 10 Cal.App.3d 689, 693 (Massengale) [county jail sentences
unauthorized where sentencing statute provided for one to ten years in state
prison] 4; People v. Orrante (1962) 201 Cal.App.2d 553, 558, 566–567
[placement on probation after murder conviction in excess of trial court’s
jurisdiction; remanded to impose lawful sentence], superseded by statute as
stated in People v. Bailey (1996) 45 Cal.App.4th 926, 929–930.) In sum, “a
defendant who successfully attacks a judgment which is in excess of the
court’s jurisdiction is not necessarily entitled to claim the protection of that
invalid judgment as an absolute limitation upon what the court may do
thereafter.” (Serrato, at p. 765, italics added.)
Although the Supreme Court noted that, under the circumstances, it
would normally remand the case to the superior court for a new hearing on
the new trial motion, the Court went on to determine that the superior court
had violated the defendants’ due process rights at trial by instructing the jury
in a way that effectively reversed the burden of proof. (Serrato, supra, 9
Cal.3d at pp. 765–767.) It therefore ordered a new trial. (Id. at p. 765.)
Justice Mosk concurred in part and dissented in part, arguing that whatever
“the rationale of the majority opinion, its melancholy result [was] to penalize

4 The Massengale court distinguished its situation from that involved in

Henderson, stating that “such a correction of the judgment is not a penalty
imposed upon appellants because of their appeals.” (Massengale, supra, 10
Cal.App.3d at p. 693.) Rather the correction in the judgments in that case
“would be required whenever the mistake was discovered, regardless of
whether or not defendants had appealed.” (Ibid.)

12
these defendants for a successful appeal” in violation of the prohibition
against double jeopardy. (Id. at pp. 767–768 (conc. & dis. opn. of Mosk, J.).)
In the 50 years since the Serrato decision, our high court has returned
to the case—in ways relevant to the instant appeal—only a handful of times.
In In re Ricky H. (1981) 30 Cal.3d 176 (Ricky H.), superseded by statute on
other grounds as stated in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396,
the Supreme Court was considering a minor’s challenge to his Youth
Authority commitment when its own review of the record disclosed “several
deficiencies” in the dispositional order that had not been raised by the
parties. 5 (Ricky H., at pp. 182, 190–191.) For example, it noted that the
superior court had imposed a three-year median term for aggravated assault
instead of the mandatory four-year upper term. (Id. at p. 191.) Citing
Serrato, the Court stated that “[a]uthority exists for an appellate court to
correct a sentence that is not authorized by law whenever the error comes to
the attention of the court, even if the correction creates the possibility of a
more severe punishment.” (Ricky H., at p. 191.) However, given other errors
in the dispositional order, the Court concluded that a remand with directions
was more appropriate than appellate correction. (Id. at pp. 191–192.)
Thereafter, in People v. Karaman (1992) 4 Cal.4th 335 (Karaman), the
Supreme Court cited Serrato and Ricky H. in dicta for the proposition that
“where the court is required to impose a certain minimum term but imposes a
lesser term instead, the unauthorized sentence is considered invalid or
‘unlawful’ and may be increased even after execution of the sentence has
begun.” (Karaman, at p. 349, fn. 15.)

5 Two sustained petitions were before the superior court at the

dispositional hearing, involving four counts of burglary, one count of assault
by means of force likely to produce great bodily injury, and one count of
escape from juvenile hall. (Ricky H., supra, 30 Cal.3d at p. 180.)

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 Next, in People v. Dotson (1997) 16 Cal.4th 547 (Dotson), the Court
considered whether or not a sentence under the three strikes law for a
serious felony should include a separate determinate term for enhancements
under section 667, subdivision (a). (Dotson, at p. 550.) In the trial court, the
prosecutor had requested an indeterminate term of 26 years to life and did
not argue that the enhancements should be imposed as a separate
determinate term. The Supreme Court nevertheless reached the issue via a
petition for review. (Id. at pp. 553–554 & fn. 6.) Citing Serrato, Ricky H.,
and People v. Scott (1994) 9 Cal.4th 331 (Scott), the Court opined: “A claim
that a sentence is unauthorized . . . may be raised for the first time on
appeal[] and is subject to judicial correction whenever the error comes to the
attention of the reviewing court.” (Dotson, at p. 554, fn. 6; see also Scott, at
p. 354 [discussing exception to waiver rule for unauthorized sentences and
noting that “a sentence is generally ‘unauthorized’ where it could not lawfully
be imposed under any circumstance in the particular case”].) The Court went
on to conclude that a consecutive 20-year determinate term should have been
imposed in the case and remanded to the trial court for appropriate
resentencing. (Dotson, at pp. 557–560.)
In Hanson, supra, 23 Cal.4th 355, discussed above, the Supreme Court
cited Serrato in a footnote contrasting the Henderson rule with the situation
in which a defendant seeks to withdraw a guilty plea or repudiate a plea
bargain. (Hanson, at p. 360 & fn. 2.) In Serrato, the Supreme Court had
described its prior opinion in In re Sutherland (1972) 6 Cal.3d 666. There,
the defendant pleaded guilty to one count, the prosecutor moved to dismiss
the four remaining counts, and his motion was granted. The Supreme Court
recognized that, by granting relief it was in effect permitting the defendant to
withdraw his guilty plea. Under such circumstances, it concluded that “ ‘the

14
ends of justice require[d] that the status quo ante be restored by reviving the
four dismissed counts.’ ” (Serrato, supra, 9 Cal.3d at p. 765.)
Finally, in People v. Carbajal (2013) 56 Cal.4th 521 (Carbajal), the
defendant was charged with sexually molesting two victims. A jury convicted
the defendant of some counts involving one victim while deadlocking on all
counts involving the other victim. Nevertheless, it initially returned a true
finding on a multiple victim special allegation. With some coaching from the
trial judge, the jury next came back with a not true finding with respect to
the allegation and then later stated they were deadlocked on it. A second
jury subsequently convicted the defendant of counts involving the other
victim and found true the multiple victim allegation. (Carbajal, at p. 525.)
The question before the Supreme Court was whether retrial on the multiple
victim allegation was barred by double jeopardy. (Ibid.) The Court concluded
it was not, reasoning: “Because the [first] jury could not have returned any
valid verdict on the multiple victim allegation, double jeopardy did not bar
retrial on that allegation. (Cf. People v. Serrato (1973) 9 Cal.3d 753, 764
[when sentence imposed is not just erroneous but entirely unauthorized, state
constitutional double jeopardy clause does not prohibit subsequent imposition
of more severe sentence].)” (Carbajal, at p. 535.)
C. Appellate Court Applications of Serrato Exception
Post-Serrato, appellate courts have handled unauthorized sentences in
various ways. For example, in 1984 our colleagues in Division Two of this
District addressed a situation where a defendant had been sentenced
consecutively for both rape (six years) and kidnapping for the purpose of rape
(five years) in violation of section 654. (People v. Burns (1984) 158
Cal.App.3d 1178, 1181 (Burns).) In considering the appropriate remedy for
this error, the court noted that a defendant’s aggregate prison term under the

15
determinate sentencing law (DSL) “ ‘cannot be viewed as a series of separate
independent terms, but rather must be viewed as one prison term made up of
interdependent components. The invalidity of some of those components
necessarily infects the entire sentence . . . . In making its sentencing choices
in the first instance the trial court undoubtedly considered the overall prison
term to be imposed.’ ” (Id. at 1183.) The trial court was therefore allowed to
reconsider its entire sentencing scheme on remand. “However, in order to
‘preclude vindictiveness and more generally to avoid penalizing a defendant
for pursuing a successful appeal’ [citation],” the appellate court concluded,
citing Henderson, that Burns could not be “sentenced on remand to a term in
excess of his original sentence.” (Burns, at p. 1184.)
Several years later, the Fifth District considered the propriety of
resentencing a sexual offender to 50 years in prison on remand from an
unauthorized sentence of 37 years. (People v. Price (1986) 184 Cal.App.3d
1405, 1407 (Price).) Given the exemplar cases discussed in Serrato, and the
Serrato Court’s analogizing of those cases to the situation where a negotiated
plea is set aside (which requires restoration of any dismissed counts), the
appellate court in Price concluded that the holding in Serrato “vindicates the
People’s right to imposition of a proper sentence.” (Price, at p. 1409; see also
Serrato, supra, 9 Cal.3d at pp. 764–765.) It therefore concluded that, in order
to determine if the sentencing court on remand properly could impose a
harsher sentence, it was required to characterize the sentencing errors which
occurred at the first sentencing. Some identified sentencing errors “could not
result in a greater overall term on the sentencing” and thus “did not produce
unauthorized sentences.” (Price, at p. 1409.) In contrast, the appellate court
found two unauthorized errors in the initial sentencing: the failure to impose
a consecutive sentence on one robbery count and the failure to impose

16
weapons enhancements on three counts due to a misunderstanding regarding
the application of section 654. (Price, at pp. 1409, 1411–1412 [“Where a court
mistakenly stays punishment under section 654, the stay operates to defeat
the otherwise mandated sentence which the court must impose.”].) Turning
to the propriety of the resentencing, the Price court concluded that the
sentencing court had fixed the unauthorized sentencing errors and that the
resulting increases in punishment were “condoned under the Serrato rule.”
(Price, at p. 1412.) As for the sentencing choices that were not unauthorized
but “were defectively supported in the first appeal,” the court found the
sentences on remand “to be no harsher than before” and therefore
appropriate. (Ibid.)
The court, however, did find error in the trial court’s treatment of the
two robbery convictions on remand, reasoning as follows: “The Serrato rule
protects the People’s right to mandated, lawful sentences. The limitations of
the rule ‘rebut’ any appearance of vindictiveness. If an increase in penalty
has no nexus to the original illegality in the sentence, the protection against
vindictiveness is not applicable. The general rule applies that in California a
harsher penalty may not be imposed after a successful appeal.” (Price, supra,
184 Cal.App.3d at p. 1413.) The defendant in Price had originally been
sentenced to concurrent middle terms on each of two robbery counts and that
“sentence was neither attacked on appeal, nor criticized” in the court’s prior
opinion in the matter. On remand, the court imposed the upper term on one
count and ran the second count consecutively. The court concluded: “These
three additional years (the difference between the three-year midterm to a
five-year upper term (two years) and the addition of one-third of the midterm
(one year)) were not corrections of ‘illegalities’ in the original sentence.
‘Illegalities’ requiring resentencing permit the imposition of a harsher

17
punishment. Those portions of the sentence were unaffected by ‘illegality’
and cannot be increased in punishment.” (Ibid.) The Price court determined
that remand for resentencing was unnecessary because there was no
reasonable likelihood that on remand the court would impose the lower term
on the principal robbery conviction. (Ibid.) It therefore ordered the principal
robbery term reduced to three years and the second robbery sentence to be
run concurrently, reducing the defendant’s total term from 50 to 47 years.
(Ibid.)
In People v. Hill (1986) 185 Cal.App.3d 831 (Hill), the defendant
pleaded guilty to four counts of child molestation (two counts with respect to
each of the two victims) and was initially sentenced to an aggregate term of
16 years—two consecutive upper terms of eight years and two concurrent
terms of six years. (Id. at p. 833.) After being notified by the Department of
Corrections that the sentence was erroneous, the court resentenced the
defendant to eight years on the principal count and consecutive two-year
terms (one-third of the midterm) on each of the three remaining counts, for a
total of 14 years. (Ibid.) On appeal, the defendant argued that the trial court
should have modified the erroneous portion only (the second eight-year term),
and that the court was without authority to resentence on the two counts
that were initially run concurrently. (Ibid.) The Second District disagreed.
Specifically, the Hill court reasoned: “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.” (Hill, supra, 185

18
Cal.App.3d at p. 834.) Thus, “[t]he trial court is entitled to rethink the entire
sentence to achieve its original and presumably unchanged goal.” (Ibid.) In
reaching this conclusion, the Hill court found Serrato, Ricky H., and Ali
inapplicable because the defendant’s aggregate sentence was not increased
upon resentencing. (Hill at p. 836.) It concluded that the defendant’s “initial
sentence was illegal and therefore void. Upon recall the trial court had the
jurisdiction to impose a sentence which it could have imposed at the time the
original sentence was given.” (Ibid.)
Division Two of this District revisited Henderson through the lens of
Serrato in 1987. (See People v. Brown (1987) 193 Cal.App.3d 957 (Brown).)
In Brown, the defendant had been convicted of two counts of attempted grand
theft from a person and initially sentenced to 46 months in state prison. On
appeal, the conviction was affirmed but the appellate court concluded that
the 46-month sentence was improper in that it exceeded the double the base
term limitation in the DSL. The matter was remanded for resentencing after
which the defendant was sentenced to a 48-month term. The defendant
again appealed, contending that the imposition of a longer sentence on
remand impermissibly penalized him for his successful appeal and violated
the prohibition against double jeopardy. (Id. at p. 960.) The appellate court
disagreed.
After noting the “general rule” that “a greater sentence may not be
imposed upon remand after an appeal,” the court considered the Serrato
exception which provides that “an unauthorized sentence ‘is subject to being
set aside judicially and is no bar to the imposition of a proper judgment
thereafter, even though it is more severe than the original unauthorized
pronouncement.’ ” (Brown, supra, 193 Cal.App.3d at p. 962.) The court read
Serrato as “set[ting] up a distinction between resentencing upon retrial

19
necessitated by an error not involving the sentence and resentencing
necessitated by the illegality of the original sentence, allowing imposition of a
greater sentence only in the latter situation.” (Brown, at p. 962.) While the
court was critical of Serrato, it recognized that it was bound to follow it.
(Brown, at pp. 961–962.) Deeming the initial sentence unauthorized because
it exceeded a statutory limitation, the court concluded it was not error to
impose a harsher sentence on remand. (Id. at p. 962.)
In People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa), the
Fourth District considered the validity of the defendant’s sentence of 14
years, four months after he pleaded guilty to three counts of robbery while
personally armed with a firearm and three counts of possession of a firearm
by a felon. He also admitted suffering three prior felony convictions. (Id. at
p. 1309.) The appellate court concluded that the trial court erred in imposing
consecutive terms for two gun-use enhancements, while imposing concurrent
terms for the robbery convictions in the same counts. (Ibid.) Since
“fashioning a sentence in a manner which is unauthorized by law exceeds the
jurisdiction of the court,” the defendant could raise the issue on appeal even
though no objection was made in the trial court. (Id. at p. 1311.) In
discussing the proper procedure on remand, the court rejected the argument
that the Serrato exception applied, reasoning: “[T]he rule against double
jeopardy applies because the court imposed a legal aggregate sentence, only
fashioning it in an unauthorized manner. The court’s error in separating the
convictions from their attendant enhancements, though unauthorized by law,
does not make the total sentence illegal. On remand the court may not
impose a total sentence more severe than the sentence originally imposed.”
(Mustafaa, at pp. 1311–1312.)

20
 In People v. Craig (1998) 66 Cal.App.4th 1444 (Craig), Division Four of
this District found no double jeopardy issue where the defendant—who had
successfully appealed from a prior conviction—was sentenced after retrial to
a greater term for the offense, but the aggregate term (which included
enhancements) did not exceed that imposed at his initial sentencing. (Id. at
pp. 1446, 1448.) At the initial sentencing, the defendant was sentenced to the
mitigated term of two years for burglary along with five years for each of five
prior serious felonies, for a total of 27 years. On retrial, only three prior
felonies were proved, and the defendant was sentenced to the midterm of four
years on the burglary plus 15 years for the three enhancements, for a total of
19 years. (Id. at p. 1446.) The defendant contended in a second appeal that
it was impermissible under the due process clause of our federal Constitution
and under the double jeopardy provisions of our state Constitution for the
trial court at the second sentencing to impose four years for the burglary
when at the initial sentencing it had imposed only two years for that offense.
(Id. at p. 1447.) The appellate court noted that “one 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.” (Ibid.) It thus
considered the defendant’s due process challenge within the double jeopardy
framework. (Ibid.)
After a survey of relevant precedent, the court concluded that, under
double jeopardy principles, a defendant may not upon reconviction be
subjected to an aggregate sentence greater than that imposed at the first trial.
Since the defendant’s sentence had been reduced from 27 years to 19 years,
no double jeopardy issue was found. (Craig, supra, 66 Cal.App.4th at

21
pp. 1447–1448.) In making this determination, the court distinguished
Price—which the defendant argued supported his contention that his
sentence should be viewed as a series of components for double jeopardy
purposes—because Price held that it was impermissible to increase on
remand a robbery term that had neither been attacked on appeal nor
criticized in its earlier opinion as unlawful. In the court’s view, Price was
inapplicable because the case as a whole fell within the Serrato exception for
unauthorized or unlawful sentences. 6 (Craig, at p. 1450; see also People v.
Burbine (2003) 106 Cal.App.4th 1250 [citing Craig in holding that a
defendant can receive the same aggregate prison term upon resentencing for
a multi-victim felony conviction even where one count was reversed on
appeal; any sentence permitted under the applicable statutes and rules may
be imposed on remand, subject only to the limitation that the original
aggregate prison term could not be increased].)
A final example is found in People v. Torres (2008) 163 Cal.App.4th
1420 (Torres) where the defendant was convicted of one count of attempting
to dissuade a witness and one count of criminal threats, both with an
attached gang enhancement. At sentencing, the court struck the gang
enhancements, imposed the aggravated term of seven years on the criminal
threat count, and imposed but stayed the mid-term on the other count. (Id.

6 Specifically, the Craig court asserted: “Price is an example of the
exception to the general rule of Henderson that an unlawful or unauthorized
sentence may be increased without offending double jeopardy. The Price
court, however, carefully tailored that exception to the facts before it,
according defendant the benefit of double jeopardy protection for the portions
of his sentence which were not unlawful or unauthorized. Accordingly, Price
is not authority for the proposition that an aggregate sentence which does not
offend Henderson must be broken into its components each one of which
carries on resentencing the upper limit of that term which was originally
imposed. (Craig, at p. 1450.)

22
at pp. 1421, 1427.) More than a year later, the Department of Corrections
sent a letter to the trial court informing it that the sentencing triad for the
criminal threats count was 16 months, two years, or three years. (Id. at
p. 1427.) Thus, the court’s seven-year sentence was unauthorized. At the
resentencing, the trial court declined to stay the gang allegations. It
sentenced the defendant to an indeterminate term of seven years to life on
the criminal threats count. The court imposed and stayed a seven-year term
with respect to the other count. (Id. at p. 1428.)
The Fifth District reviewed double jeopardy cases as well as cases
involving the Serrato exception and concluded: “In all of the . . . cases, the
defendant either received a sentence equal or lesser than his original
sentence[] or received a greater sentence only when the court’s sentence
demonstrated legally unauthorized leniency that resulted in an aggregate
sentence that fell below that authorized by law.” (Torres, supra, 163
Cal.App.4th at p. 1432.) It concluded that its case was similar to Mustafaa,
explaining: “ ‘In Mustafaa’s case the rule against double jeopardy applie[d]
because the court imposed a legal aggregate sentence, only fashioning it in an
unauthorized manner. The court’s error in separating the convictions from
their attendant enhancements, though unauthorized by law, [did] not make
the total sentence illegal. On remand the court [could] not impose a total
sentence more severe than the sentence originally imposed.’ ” (Torres, at
p. 1432.) The Torres court concluded that, since the aggregate sentence of
seven years imposed on defendant at the original sentencing hearing in that
case could have been lawfully achieved, principles of double jeopardy required
a remand at which the trial court could not impose a total sentence greater
than seven years in prison. (Id. at pp. 1432–1433.)

23
D. The Serrato Exception Does Not Apply
As stated above, Trammel and the Attorney General disagree as to
whether the Serrato exception applies in this case, authorizing a harsher
sentence on remand. While we conclude that Trammel largely has the better
argument on this record, our analysis of the question took longer and was
more nuanced than we originally anticipated. Having discovered the lack of
consistency among appellate courts analyzing these issues as set forth above,
we offer our own interpretation of how Serrato should be applied at
resentencing.
Preliminarily, we would like to dispel some confusion that has arisen in
this and other cases by use of the term “unauthorized sentence.” (See, e.g.,
People v. King (2022) 77 Cal.App.5th 629 [appearing to misapprehend the
various attributes of an unauthorized sentence and limiting it to a waiver
concept].) In Scott, supra, 9 Cal.4th 331, our Supreme Court discussed
generally “the venerable notion that claims involving ‘unauthorized,’ ‘void,’ or
‘excessive’ sentences, and sentences entered in ‘excess of jurisdiction,’ can be
raised at any time.” (Id. at p. 354.) In doing so, it held that, for waiver
purposes, “a sentence is generally ‘unauthorized’ where it could not lawfully
be imposed under any circumstance in the particular case. Appellate courts
are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencing.” (Ibid.) As an example, the Scott Court indicated it is “well
settled . . . that the court acts in ‘excess of its jurisdiction’ and imposes an
‘unauthorized’ sentence when it erroneously stays or fails to stay execution of
a sentence under section 654.” (Scott, at p. 354, fn. 17.) Scott, however, is a
waiver case. It has nothing to do with whether a sentence is unauthorized for
purposes of the Serrato exception. As we discuss further below, while the two

24
concepts may overlap in certain cases, both the analyses and the
consequences under Scott and Serrato are distinct.
Next, we join our Division Two colleagues in finding aspects of Serrato
troubling. For example, the distinction between sentencing illegalities and
other errors seems dubious when viewed in the context of our double jeopardy
precedent: “[A] defendant is penalized as much for bringing a successful
appeal if he or she is left subject to imposition of a greater sentence when the
basis of the appeal is sentencing error as when the basis is error relating to
the conviction.” (Brown, supra, 193 Cal.App.3d at p. 961.) In addition, as our
survey of the caselaw makes clear, it is not always easy to distinguish illegal
sentences for Serrato purposes from sentences that are erroneous for some
other reason and/or determine how mixed sentences should be treated. (See
Brown, at pp. 961–962 [citing cases]; see, e.g., Craig, supra 66 Cal.App.4th
1444; Mustafaa, supra, 22 Cal.App.4th 1305; Hill, supra, 185 Cal.App.3d 831;
Price, supra, 184 Cal.App.3d 1405.) Finally, “the Serrato distinction leads to
an anomalous result in the context of appeals, as a defendant is encouraged
to appeal an erroneous but authorized sentence and penalized for appealing
an outright illegal one. This result is contrary to the established principle
that ‘[since] the state has no interest in preserving erroneous judgments, it
has no interest in foreclosing appeals therefrom by imposing unreasonable
conditions on the right to appeal.’ ” (Brown, at p. 962, quoting Henderson,
supra, 60 Cal.2d at p. 497 & citing Serrato, supra, 9 Cal.3d at p. 767 [Mosk,
J., conc. and dis. opn.].) Nevertheless, since the Supreme Court has not
retracted Serrato in the last 50 years, we are bound to follow it. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore turn to
the question of how it should be applied in this case.

25
 In our prior opinion, we found two instances where the trial court
erroneously failed to stay sentences under section 654, and we also suggested
that Trammel could raise any additional section 654 challenges upon remand
for resentencing. At the resentencing hearing, the trial court corrected the
errors we identified by choosing to stay two simple assault counts (counts
VIII and X, both 180 days). The court also stayed the sentences for the count
V vandalism charge (one year), the count VIII simple assault charge (180
days), and the count II criminal threats charge (eight months) on section 654
grounds. Sentences for count I (18 months), count VII (one year plus one year
for related enhancement), and count XI (8 years) remained the same, but
were imposed after full consideration of the recent changes in the sentencing
laws. The court changed the concurrent three-year sentence on count XII to a
concurrent one-year term and the concurrent three-year sentence on count IX
to a consecutive one-year term.
In sum, all of the section 654 violations that were corrected by the trial
court resulted either in no change or a decrease in Trammel’s aggregate
sentence. The extra four months the court imposed at resentencing were the
result of the trial court swapping the eight-month criminal threats charge
(count II), which the court stayed, with a consecutive sentence of one year on
count IX, which the judge reduced from three years and made consecutive
instead of concurrent. The sentence for count IX was permissible both when
originally imposed and when modified upon resentencing. The question,
then, is whether an erroneous sentence under section 654 which improperly
inflated Trammel’s aggregate sentence falls within the Serrato exception,
thus allowing a harsher sentence on remand. We conclude that it does not.
When the Serrato Court discussed the exception to Henderson it was
articulating, it listed three cases as examples of the problem it was

26
addressing. (Serrato, supra, 9 Cal.3d at pp. 764–765.) In all of those cases,
the unauthorized sentence imposed was erroneously lenient. (Ibid.) As was
the sentence that Serrato, itself, was reviewing. (Id. at p. 756; see id. at
pp. 762–763 [“What appears is that the trial court desired to exercise an
unauthorized leniency.”].) Moreover, the Serrato Court stated that the
situation with which it was presented was analogous to cases in which a
conviction based upon a negotiated guilty plea is set aside, where the ends of
justice required that counts dismissed by the prosecutor be restored. (Id. at
p. 765.) Under these circumstances, we agree with the appellate court in
Price that “[t]he holding in Serrato vindicates the People’s right to imposition
of a proper sentence.” (Price, supra, 184 Cal.App.3d at p. 1409; accord,
Torres, supra, 163 Cal.App.4th at pp. 1429-1432; Craig, supra, 66
Cal.App.4th at p. 1449.) Thus, the Serrato exception only applies to
unauthorized sentences which were unlawfully lenient to the detriment of the
People. (Cf. Karaman, supra, 4 Cal.4th at p. 349 & fn. 15 [contrasting the
situation where a trial court may not increase a valid sentence after it has
commenced with Serrato and Ricky H., stating: “[W]here the court is
required to impose a certain minimum term but imposes a lesser term
instead, the unauthorized sentence is considered invalid or ‘unlawful’ and
may be increased even after execution of the sentence has begun.”].)
We also find support for the conclusion that Serrato applies only to
unauthorized, lenient sentences in the Supreme Court’s decision in Collins.
There, as discussed above, the defendant’s plea bargain was effectively set
aside through no fault of his own. The Court discussed the rights of both the
prosecution and the defendant in this circumstance, and, citing Henderson for
the “long recognized” principal that “the state has no interest in preserving
erroneous judgments,” the Supreme Court concluded that the rights of the

27
prosecution and the defendant could best be protected by permitting the state
to revive one or more of the dismissed counts but limiting the defendant’s
potential sentence to not more than three years in state prison, the
comparable term of punishment that had been set by the DSL. (Collins,
supra, 21 Cal.3d at pp. 214–216.) We read this case as standing for the
proposition that a defendant’s double jeopardy rights may be narrowly
impacted when necessary to protect the People’s right to a proper sentence.
A narrow interpretation of Serrato also minimizes many of the
problems with the exception identified in Brown. For instance, a defendant
may be penalized for appealing only in those limited situations where an
erroneously lenient judgment impedes the People’s right to a proper sentence.
And a defendant is still encouraged to appeal unauthorized, excessive
sentences. Moreover, we believe this construction of Serrato is more
straightforward in application. At a resentencing, the trial court must first
consider whether any unauthorized portions of the sentence were
impermissibly lenient to the detriment of the People. If they were, a harsher
sentence may be imposed at resentencing, but only to the extent necessary to
correct those errors. Next, we agree with the cases which conclude that an
aggregate prison term “ ‘cannot be viewed as a series of separate independent
terms, but rather must be viewed as one prison term made up of
interdependent components.’ ” (Burns, supra, 158 Cal.App.3d at p. 1183;
accord, Hill, supra, 185 Cal.App.3d at p, 834.) Thus, the resentencing court
is permitted to reconsider all of its discretionary sentencing choices. 7 For

7 At first blush, certain statements in Price may seem contrary to this

conclusion. Specifically, the Price court faulted the trial court for increasing
on resentencing the sentences for two robbery counts “neither attacked on
appeal, nor criticized” in the court’s prior opinion in the matter. (Price,
supra, 184 Cal.App.3d at p. 1413.) The court concluded: “These three
additional years (the difference between the three-year midterm to a five-

28
example, it could choose to decrease other components of the sentence to
compensate for the increase required under Serrato and reach an identical or
lower sentence. But under no circumstances should the aggregate sentence
be more than the sum of the original sentence and the mandatory increase
required due to the Serrato errors.
Since, in this case, the unauthorized sentences were erroneously harsh
or neutral rather than lenient, the Serrato exception does not apply.
Consequently, while the trial court was allowed to reconsider all of the other
elements of Trammel’s sentence, under Henderson and its progeny it could
not impose an aggregate sentence greater than the original sentence of 12
years. The 12 year, four month sentence the court imposed on resentencing
thus violates the California Constitution’s prohibition against double
jeopardy.
E. Appropriate Remedy
Trammel asks that we remand this matter for another full
resentencing, this time before a different judge pursuant to Code of Civil
Procedure section 170.1, subdivision (c) and People v. Swanson (1983) 140
Cal.App.3d 571 in order to avoid any appearance of unfairness. We decline to
do so. As stated above, we have reviewed the trial court’s resentencing
proceedings and see no evidence of vindictiveness. Rather, the court

year upper term (two years) and the addition of one-third of the midterm (one
year)) were not corrections of ‘illegalities’ in the original sentence.
‘Illegalities’ requiring resentencing permit the imposition of a harsher
punishment. Those portions of the sentence were unaffected by ‘illegality’
and cannot be increased in punishment.” (Ibid.) Having reviewed both Price
and the prior opinion in the matter (People v. Price (1984) 151 Cal.App.3d
803) it appears that Price may have been objecting to these additional
increases because they went beyond those which had already been
implemented to correct the identified Serrato errors. Read as such, it
supports our suggested approach to Serrato error.

29
understood it was engaged in a full resentencing, thoughtfully considered all
of the arguments raised by the parties, and then articulated its reasons for
imposing sentence on each sentencing component. Moreover, the court did
this fully aware of the discretion it possessed under certain new changes in
the law as well as the additional requirements established by other statutory
changes. The imposition of the additional four months does not appear to
have been vindictive. Rather, it seems that the court simply imposed the
one-year consecutive term on count IX to compensate for its decision to stay
the eight month sentence for count II. Given the legal uncertainties in this
area, it is certainly understandable that the court mistakenly believed this
small increase in the aggregate sentence was permissible.
We thus see no need for another resentencing before a different judge.
Nor do we see any reasonable likelihood that on remand this trial court
would impose an aggregate term appreciably different than the maximum
allowable 12 years. (See Price, supra, 184 Cal.App.3d at p. 1413, citing
People v. Avalos (1984) 37 Cal.3d 216, 233.) Under the circumstances, we will
exercise our authority to modify the judgment by making the term imposed
on count IX run concurrently rather than consecutively, for a total aggregate
term of 11 years, four months. (§ 1260; People v. Alford (2010) 180
Cal.App.4th 1463, 1473.)
Finally, both parties agree that the amended abstract of judgment in
this case failed to accurately reflect Trammel’s total custody credits at the
time of resentencing. The trial court confirmed at resentencing that, as of
November 6, 2020, Trammel had 311 presentence credits and 311 conduct
credits. As of the resentencing on November 23, 2022, the court found that
he had total custody credits of 1,054 days. It stated it was going to “indicate
that Mr. Trammel has 1,054 actual custody credits and allow the Department

30
of Corrections to determine the conduct credits.” But the amended abstract
only sets forth the original presentence credits of 622 days (311 custody/311
conduct). This was error. (See § 2900.1 [“Where a defendant has served any
portion of his sentence under a commitment based upon a judgment which
judgment is subsequently declared invalid or which is modified during the
term of imprisonment, such time shall be credited upon any subsequent
sentence he may receive upon a new commitment for the same criminal act or
acts.”]; see also People v. Buckhalter (2001) 26 Cal.4th 20, 23 [concluding
that, at resentencing, the trial court must recalculate and credit the actual
time the defendant had served prior to the modification].) We will therefore
also instruct the trial court to include in its second amended abstract of
judgment the actual total custody credits to which Trammel was entitled at
the time of his resentencing.
III. DISPOSITION
The matter is remanded to the trial court with instructions to modify
the sentence on count IX to run concurrently rather than consecutively, to
impose a total aggregate sentence of 11 years, four months, and to determine
Trammel’s actual total custody credits as of November 23, 2022. The court
shall order the clerk of the superior court to prepare a second amended
abstract of judgment memorializing these changes and transmit a copy to the
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.

31
 BOWEN, J. ∗

WE CONCUR:

HUMES, P. J.

MARGULIES, J.

A166756P

∗
Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

32
San Francisco County Superior Court

Hon. Teresa M. Caffese

Counsel:

Law offices of Bess Stiffelman, Bess Stiffelman under appointment by the
Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Melissa A.
Meth, Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General
for Plaintiff and Respondent.

33