Error and/or relief
Following the second of defendant’s two previous appeals, the matter was remanded to give the prosecution the opportunity to retry the gang enhancements. The prosecution declined to retry the gang enhancements. At sentencing, the court imposed previously stayed firearms enhancements that were tethered to the gang enhancements.
This was error. Once the prosecution declined to retry the gang enhancements, the firearm enhancements could no longer be imposed.
First Holding:
We observe that on remand the court resentenced the defendant to a higher aggregate term than both the original and second sentences. We note that although in some cases imposing a greater sentence to correct an unauthorized sentence is permissible, imposing a greater sentence after a successful appeal may be an excess of jurisdiction. Here, the issue is likely moot based on the disposition herein.
Authority:
People v. Serrato (1973) 9 Cal.3d 753, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1
People v. Trammel (2023) 97 Cal.App.5th 415
Second Holding:
The trial court’s sentence on the most recent remand, imposing the previously-stayed gang-related firearms enhancements, was unauthorized. The firearms enhancements were contingent on the vacated gang enhancements. Once the prosecution declined to retry the gang enhancements, the allegations found true by the jury under section 12022.53(d) and (e)(1), having been reversed, could not be imposed.
Authority:
People v. Cooper (2023) 14 Cal.5th 735, 746