Error and/or relief
The trial court erred in imposing an indeterminate sentence on the attempted sodomy conviction and failed to properly calculate the defendant’s determinate sentence.
First Holding:
In evaluating claims of insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.
We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence. A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. We may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses.
Authority:
People v. Elliot (2005) 37 Cal.4th 453, 466
People v. Ochoa (1993) 6 Cal.4th 1199, 1206
People v. Bolin (1998) 18 Cal.4th 297, 331
Second Holding:
Under either simple or aggravated kidnapping, the asportation element requires that the movement be more than that which is merely incidental to the commission or attempted commission of the associated crime.
Simple kidnapping requires that the defendant moved the victim a substantial distance, but no minimum distance is required.
The aggravated kidnapping circumstance, however, also requires that the movement substantially increased the risk of harm to the victim beyond that inherent in the underlying offense. The increased risk may be of either physical or psychological harm.
Authority:
People v. Waqa (2023) 92 Cal.App.5th 565, 577-578
Third Holding:
The crime of attempted sodomy is not subject to the One Strike law under section 667.61(c). Thus, it was error to impose an indeterminate sentence for that offense.
Authority:
PEN 667.61
People v. Rodriguez (2012) 207 Cal.App.4th 204, 217
Fourth Holding:
Sentencing a defendant for offenses subject to determinate terms involves a three-step process:
First, the trial court is required to select a base term—either the statutory low, middle or upper term—for each of the crimes.
Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the greatest selected base term as the principal term and the other crimes as subordinate terms.
Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively.
A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term. The court did not follow this procedure on three of the counts, and resentencing is required.
Authority:
PEN 1170.1
People v. Rodriguez (2012) 207 Cal.App.4th 204, 211-212
Fifth Holding:
Generally, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.
This rule does not apply, however, when a trial court imposes an unauthorized sentence. In such cases, courts may impose the proper judgment on remand even though it is more severe than the original unauthorized pronouncement.
Authority:
People v. Vizcarra (2015) 236 Cal.App.4th 422, 431
People v. Burhop (2021) 65 Cal.App.5th 808, 814 [An unauthorized sentence renders the unlawful part of a judgment of conviction and sentence void and correctable at any time.]
People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21 [We must correct an unauthorized sentence even where the corrected sentence results in a longer term.]
Sixth Holding:
Here, the trial court’s sentence on count 4 of an indeterminate term of 25 years to life was unauthorized and must be corrected. Likewise, the court’s failure to designate a principal term among counts 6 through 8 amounted to an unauthorized sentence. Accordingly, the trial court is not constrained by the length of the original determinative sentence for purposes of resentencing.
Authority:
People v. Neely (2009) 176 Cal.App.4th 787, 797–798 [court erroneously applied principal term/subordinate term methodology set forth in sec. 1170.1 to all the offenses when it imposed one-third of the middle term sentences for the determinate term offenses]