 


Filed 5/27/15 P. v. Martinez CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                          SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




THE PEOPLE,                                                                       B257937

          Plaintiff and Respondent,                                               (Los Angeles County
                                                                                  Super. Ct. No. SA023514)
          v.

MICHAEL LASHON MARTINEZ,

          Defendant and Appellant.



          APPEAL from an order of the Superior Court of Los Angeles County,
Edward B. Moreton, Jr., Judge. Reversed and remanded with directions.
          Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for
Plaintiff and Respondent.
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          Appellant Michael Lashon Martinez appeals from a revised sentencing order in
which his aggregate sentence was increased from the 116-year sentence that was
approved in a prior appeal to 140 years. We conclude the increase is erroneous, and
reverse and remand for imposition of a proper sentence not to exceed the 116-year
aggregate sentence that was upheld in a prior appeal.


                    FACTUAL AND PROCEDURAL BACKGROUND
          As discussed in our prior opinions (No. B110602 and No. B241572), the case
involves a 1995 armed robbery of a jewelry store. In connection with that incident,
appellant was charged with attempted murder (count 1), robbery (counts 2-5), and assault
with a firearm (counts 6-9). Personal firearm use and prior strike conviction allegations
also were alleged.
          The jury found appellant guilty of the charged offenses and found the firearm
allegations to be true. The five prior strike conviction allegations also were found to be
true. The trial court exercised its discretion to strike one of the prior convictions, and
with the prosecution’s consent vacated the attempted murder conviction (count 1). The
court imposed an aggregate sentence of 120 years to life, consisting of four consecutive
terms of 25 years to life (counts 2-5), with accompanying 5-year firearm enhancements.
The sentences on counts 6 through 9 were stayed pursuant to Penal Code section 654.
          In the previous appeal from the judgment, we reduced the firearm use
enhancements from 5 to 4 years, resulting in an aggregate sentence of 116 years to life.
(People v. Martinez (Feb. 25, 1998, B110602) [nonpub. opn.].)
          In the previous habeas corpus proceeding, we issued a writ directing the trial court
to conduct a new sentencing hearing at which it was to consider whether to impose
concurrent or consecutive terms. (In re Martinez (Oct. 23, 2012, B241572) [nonpub.
opn.].)
          At the new sentencing hearing on January 7, 2014, the People sought an aggregate
sentence of 140 years to life, consisting of four consecutive terms of 25 years to life, with


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accompanying 10-year firearm enhancements. Defense counsel sought an aggregate
sentence of 35 years to life, consisting of concurrent rather than consecutive terms.
       In electing to impose consecutive terms, the trial court provided the following
statement of aggravating factors: “Defendant was armed with a gun. The victims were
vulnerable. It was a—it was an organized take-over style robbery of a retail jewelry
store. The defendant was convicted of another crime for which consecutive sentence
could have been imposed. The manner by which it was carried out indicates planning,
sophistication and professionalism. The conduct was very violent. The defendant
threatened to kill people, tried to kill people, and it was a more serious offense than the
defendant’s previous offenses, and the defendant was on parole when he committed the
crimes, and he violated the terms of his parole.”
       By imposing four consecutive terms of 25 years to life with 10-year firearm
enhancements, the trial court increased appellant’s aggregate sentence from 116 years to
140 years. No mention was made at the January 7, 2014 hearing of the constitutional
prohibition against increasing the aggregate sentence. Appellant filed a timely appeal
from the January 7, 2014 order.


                                       DISCUSSION
       Given the trial court’s detailed statement of aggravating circumstances, the record
sufficiently explains the court’s reasons for imposing consecutive rather than concurrent
terms. The sole issue on appeal is whether the increase in appellant’s aggregate sentence
from 116 to 140 years is unlawful. Contending the increase is unauthorized, appellant
seeks reinstatement of the 116-year aggregate sentence that was approved in the prior
appeal.
       Respondent agrees that the increase in the aggregate sentence is unlawful, citing
People v. Hanson (2000) 23 Cal.4th 355, 357, which states: “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.]” We agree.

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       The law is well-settled that the increase in aggregate sentence is unauthorized. As
pointed out in respondent’s brief, the constitutional prohibition against increasing a
defendant’s punishment on resentencing “is necessary to avoid imposing on defendants
‘the cruel choice [of] accepting an erroneous conviction or appealing from it at the risk of
incurring greater punishment.’ (People v. Craig [(1998)] 66 Cal.App.4th [1444], 1447.)”
We therefore reverse and remand for imposition of a proper sentence. (See People v.
Woods (2010) 191 Cal.App.4th 269, 273 [where sentence is unauthorized, case should be
remanded for a proper sentence].)


                                      DISPOSITION
       The January 7, 2014 order is reversed, and the matter is remanded for imposition
of a proper sentence not to exceed the 116-year aggregate sentence approved in the prior
appeal (No. B110602). The trial court is directed to prepare a new abstract of judgment
and to forward it to the Department of Corrections and Rehabilitations.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       WILLHITE, J.



       MANELLA, J.




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