Filed 7/15/13 P. v. Jackson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062507

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. INF057530)

CLAYTON CORNELL JACKSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Joe O.

Littlejohn, Judge. Affirmed.



         Nancy L. Tetreault for Defendant and Appellant, under appointment by the Court

of Appeal.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Peter Quon, Jr., Theodore M. Cropley, Deputy Attorneys General for

the Plaintiff and Respondent.
       Clayton Cornell Jackson appeals from a judgment entered following our remand in

his prior appeal (People v. Jackson (Jan. 31, 2012, D058387) [nonpub. opn.] (Jackson I)).

In Jackson I, after concluding the trial court made several sentencing errors, we modified

the judgment and remanded the matter for the court to exercise its discretion in

resentencing certain counts. On remand, the court, following our directions, sentenced

Jackson to a determinate term of 25 years eight months plus a 50-year-to-life

indeterminate term. In this appeal, Jackson challenges the new sentence, asserting the

court erred by adding five-year prior serious felony enhancements under Penal Code,1

section 667, subdivision (a)(1) to each of his indeterminate sentences, which were

imposed under the "One Strike" law (§ 667.61). Because appellate review of Jackson's

resentence is barred by the doctrine of law of the case, we affirm the judgment.

                           PROCEDURAL BACKGROUND2

       Following his jury convictions, the trial court sentenced Jackson to a total

determinate term of 25 years four months on three counts (counts 5, 6 and 7), and to a

total indeterminate term of 57 years to life, consisting of unstayed sentences of life with

the possibility of parole after seven years on count 1, a consecutive term of 25 years to



1      All statutory references are to the Penal Code.

2      The facts supporting Jackson's convictions are set out in greater detail in Jackson
I, and we incorporate those facts here. To summarize, in February 2007, Jackson came
upon the victim and took her at gunpoint to a garage, then to a bedroom in an attached
apartment where he sexually assaulted her and threatened to set fire to the house if she
reported his actions. We take judicial notice of the pleadings and record in Jackson I.
(Hammell v. Britton (1941) 19 Cal.2d 72, 75 [court may take judicial notice of its own
records of prior appeal].)
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life on count 2, and a consecutive term of 25 years to life on count 3. (Jackson I,

D058387, p. 2.) The court stayed a sentence on count 4. (Ibid.) It had found true

allegations that Jackson suffered a prior strike conviction qualifying as a serious and

violent felony, but dismissed that prior conviction in the interest of justice. (Ibid.)

       As relevant to Jackson's sentencing challenge in the present case, we held in

Jackson I that the trial court imposed an unauthorized sentence when, after it had

dismissed Jackson's prior strike conviction under section 1385, it failed to impose one or

more five-year sentence enhancements under section 667, subdivision (a)(1).

Specifically, we held the trial court's only discretion was to impose five-year

enhancements under that section because as a matter of law, Jackson's prior conviction

for residential burglary qualified as a serious felony under section 1192.7, subdivision

(c)(18); the People pleaded the factual basis for the prior conviction; and the

enhancement was mandatory even where the prior conviction was stricken in the interest

of justice. (Jackson I, D058387, p. 3.) We pointed out that a prior serious felony

enhancement under section 667, subdivision (a) is applied to every indeterminate term,

but only once to a determinate sentence, and modified the judgment to impose one five-

year enhancement on Jackson's determinate sentence (making it 30 years four months)

and one five-year enhancement on each of counts 1, 2 and 3, staying Jackson's sentence

on count 1. (Jackson I, D058387, pp. 27-28.) We remanded the matter for the trial court

to pronounce sentence on count 4 and exercise its discretion to impose terms on counts 6

and 7. (Jackson I, D058387, p. 29.)



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       Jackson petitioned for review, in part arguing that a section 667, subdivision (a)

sentence enhancement should not be imposed on each indeterminate One Strike sentence

based on the reasoning of the "Three Strikes" laws, because the One Strike law was an

alternative sentencing scheme rather than a status enhancement aimed at punishing

recidivism. In April 2012, the California Supreme Court denied Jackson's petition for

review and we issued a remittitur in May 2012.

       At Jackson's resentencing hearing, the trial court acknowledged this court's

directions and followed them. In particular, it acknowledged we had modified the

sentence to add one five-year prior serious felony enhancement under section 667,

subdivision (a)(1) to Jackson's determinate term for a total determinate sentence of 15

years eight months, and also to add one five-year enhancement on each of the

indeterminate life terms on counts 1, 2 and 3, giving Jackson 30-year-to-life terms on

counts 2 and 3, with count 1 stayed, for a total indeterminate sentence of 60 years to life.

The court then exercised its discretion to impose the upper term on count 7, and one-third

the midterm on count 6 consecutive to count 7. With the parties' agreement, the court

corrected the abstract of judgment as to count 5 to impose the proper eight-month

midterm. Jackson filed the present appeal.

                                       DISCUSSION

       Repeating his contention in his petition for review to the California Supreme

Court, Jackson contends the trial court misapplied section 667, subdivision (a) to his

indeterminate sentences. Though he acknowledges the court acted under our directions,

Jackson nevertheless argues his indeterminate life sentences were imposed under section

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667.61, not the Three Strikes laws, and as a result they do not fit within the reasoning of

either People v. Williams (2004) 34 Cal.4th 397 or People v. Misa (2006) 140

Cal.App.4th 837, both relied upon by this court in Jackson I. He maintains that under

People v. Tassell (1984) 36 Cal.3d 77 (overruled on another point in People v. Ewoldt

(1994) 7 Cal.4th 380, 401; see People v. Williams, at p. 400, fn. 1), only one section 667,

subdivision (a) enhancement should be added to an aggregate sentence, and thus the

separate five-year enhancements imposed by the court should be vacated as unauthorized.

The People respond in part that the law of the case doctrine precludes these claims. We

agree with the People.

       The law of the case doctrine deals with the effect of the first appellate decision on

a later retrial or appeal; an appellate court's decision stating a rule of law necessary to the

decision of the case conclusively establishes that rule and makes it determinative of the

rights of the same parties in any subsequent retrial or appeal in the same case.

(Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491, quoting 9 Witkin, Cal.

Procedure (4th ed.1997) Appeal, § 895, p. 928.) "Under the law of the case doctrine,

when an appellate court ' "states in its opinion a principle or rule of law necessary to the

decision, that principle or rule becomes the law of the case and must be adhered to

throughout [the case's] subsequent progress, both in the lower court and upon subsequent

appeal . . . ." ' [Citation.] Absent an applicable exception, the doctrine 'requir[es] both

trial and appellate courts to follow the rules laid down upon a former appeal whether such

rules are right or wrong.' [Citation.] As its name suggests, the doctrine applies only to an

appellate court's decision on a question of law; it does not apply to questions of fact."

                                               5
(People v. Barragan (2004) 32 Cal.4th 236, 246.) The principal basis for the doctrine is

judicial economy. (People v. Stanley (1995) 10 Cal.4th 764, 786.) The doctrine

"prevents the parties from seeking appellate reconsideration of an already decided issue

in the same case absent some significant change in circumstances." (People v. Whitt

(1990) 51 Cal.3d 620, 638.)

       To apply law of the case, the point of law must have been necessary to the prior

decision, the matter must have been actually presented and determined by the court, and

application of the doctrine must not result in an unjust decision. (People v. Ramos (1997)

15 Cal.4th 1133, 1161.) Law of the case will not apply, however, where the evidence in

the new proceeding pertinent to the legal question is substantially different: "[D]uring

subsequent proceedings in the same case, an appellate court's binding legal determination

'controls the outcome only if the evidence on retrial or rehearing of an issue is

substantially the same as that upon which the appellate ruling was based. [Citations.]'

[Citation.] Where, on remand, 'there is a substantial difference in the evidence to which

the [announced] principle of law is applied, . . . the [doctrine] may not be invoked.' "

(People v. Barragan, supra, 32 Cal.4th at p. 246.) Nor will the doctrine be adhered to

" 'where there has been a "manifest misapplication of existing principles resulting in

substantial injustice . . . ." ' " (People v. Martinez (2003) 31 Cal.4th 673, 683.)

       Our decision in Jackson I that the section 667, subdivision (a) five-year

enhancement must be applied once to the determinate term and to each indeterminate

term is a "principle or rule of law necessary to the decision" (People v. Barragan, supra,

32 Cal.4th at p. 246) that must be adhered to in this appeal. As the People point out,

                                              6
Jackson does not identify any intervening appellate decision, statute or other authority

that would alter or clarify the rule we set out in Jackson I. Nor does he attempt to argue

that application of the rule stated in Jackson I will result in an unjust decision.

Accordingly, under law of the case the outcome is controlled by our prior determination.

                                       DISPOSITION

       The judgment is affirmed.




                                                                               O'ROURKE, J.

WE CONCUR:


McINTYRE, Acting P. J.


IRION, J.




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