Filed 4/12/13 P. v. O‟Neal CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E054210

v.                                                                       (Super.Ct.No. FSB051948)

GLENN DAVID O‟NEAL,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed with directions.

         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott Taylor and Marissa

Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.




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       Glenn David O‟Neal, defendant and appellant (defendant), appeals from the

judgment entered when the trial court sentenced him to serve a term of 17 years

eight months in state prison after a jury found him guilty of two counts of first degree

burglary (Pen. Code, § 459),1 and the trial court found true various alleged sentence

enhancements.

       Defendant contends in this appeal that the trial court violated the due process and

double jeopardy clauses in the California Constitution because defendant successfully

appealed his first conviction, and the trial court punished defendant more harshly on

remand by sentencing him to serve 17 years eight months in prison and by imposing

larger restitution and parole revocation fines. Defendant also contends the trial court

committed prejudicial error when it denied his request at sentencing to have counsel

reappointed to represent him at that hearing.

       The Attorney General concedes that the trial court imposed an unauthorized

sentence, and that the correct prison term is 16 years eight months. The Attorney General

also concedes that the trial court improperly imposed restitution and parole revocation

fines greater than those imposed in defendant‟s first trial and, because fines constitute

punishment, the trial court violated the due process and double jeopardy clauses in our

state Constitution. We conclude the Attorney General‟s concessions are appropriate.

Therefore, we will modify defendant‟s state prison sentence by reducing it from 17 years

eight months, to 16 years eight months and by reducing both the restitution and parole

revocation fines from $2,400 to $2,000. We do not share defendant‟s view regarding

       1   All further statutory references are to the Penal Code unless otherwise indicated.

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appointment of counsel, but our resolution of the sentencing and fine issues render the

purported error harmless, as we discuss below.

                  FACTUAL AND PROCEDURAL BACKGROUND

       This is defendant‟s second appeal. In his first (case No. E041678), we concluded

the Attorney General had appropriately conceded defendant‟s claim that the trial court

had not followed the procedure set out in sections 1368 and 1369 for determining

defendant‟s competency to stand trial. Therefore, we reversed the judgment in which the

trial court had found defendant guilty as charged of two counts of first degree burglary

and sentenced him to serve 17 years eight months in state prison.

       On remand, a jury found defendant guilty as charged of two counts of first degree

burglary. In a bench trial, the court found true the allegation that defendant had

previously been convicted of a serious felony within the meaning of the three strikes law

(§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)), and also found true the allegation that

defendant had served a prior prison term (§ 667.5, subd. (b)).

       The trial court sentenced defendant to serve a total term of 20 years eight months,

comprised of the upper term of six years, doubled to 12 years as a second strike, on

count 1; on count 2, a consecutive term of one year four months doubled to two years

eight months; plus five years on the section 667, subdivision (a)(1), prior serious felony

enhancement; and one year on the prior prison term enhancement under section 667.5,

subdivision (b). The trial court acknowledged it could not impose a more severe sentence

following defendant‟s successful appeal, so the court struck three years of defendant‟s

prison sentence because of the prohibition against double jeopardy, with the result that


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the term actually imposed would be 17 years eight months, the same sentence the trial

court imposed following defendant‟s first trial.2

       The trial court also imposed parole revocation and restitution fines of $2,400 each.

       We will recount additional facts below as pertinent to the issues defendant raises

in this appeal.

                                       DISCUSSION

                                              1.

                                  SENTENCING ERROR

       Defendant, as previously noted, contends his sentence is unlawful because it is

longer than the sentence imposed following his first trial and subsequent successful

appeal. We agree with the Attorney General that the two sentences are the same length

and, therefore, there is no violation of the state Constitution. We also agree with the

Attorney General‟s argument that the trial court lacked authority to strike three years

from defendant‟s sentence. Therefore, the trial court‟s sentence of 17 years eight months

is unauthorized; the correct sentence is 16 years eight months.

       The issue presented here is addressed in People v. Thornton (1985) 167

Cal.App.3d 72, in which the trial court stayed one year of a six-year upper term prison

sentence because the trial court was “„somewhat persuaded by [the defendant‟s]

attitude.‟” (Id. at p. 74.) Our colleagues in the Fifth Appellate District held that the

resulting sentence was unauthorized because section 1170, subdivision (a)(2), expressly

requires the court to “„sentence the defendant to one of the three terms of imprisonment

       2   Different judges presided over defendant‟s first and second trials.

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specified unless such convicted person is given any other disposition provided by

law . . . .‟” (People v. Thornton, at p. 75.) “The statute could not be more clear: with

exceptions not applicable here, the judge must impose „one of the terms of imprisonment

specified.‟” (Ibid.)

       There are no provisions in the sentencing statutes that authorize a trial court to

impose a sentence authorized by law and then to reduce that sentence by three years. The

17-year-eight-month sentence the trial court imposed in this case is unauthorized by law.

The parties agree that the statutorily authorized sentence is 16 years eight months

calculated as follows: four years, doubled to eight years on count 1; on count 2, one year

four months doubled to two years eight months; plus one year for the prior prison term3

and five years for the prior serious felony.

       In addition to the unauthorized sentence, the trial court also increased the amount

of the restitution and parole revocation fines (the latter of which the trial court stayed)

from the amount imposed following defendant‟s original trial. “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.]” (People v. Hanson (2000) 23 Cal.4th 355, 357.) A statutorily mandated fine

constitutes punishment and, therefore, comes within the double jeopardy principle

prohibiting the imposition of harsher punishment following a defendant‟s successful

       3   The trial court did not realize that defendant‟s sentence of 17 years eight months
in his first trial was calculated based on two prior prison term enhancements. On retrial,
however, the prosecutor alleged only one prior prison term enhancement. Hence, the
difference of one year from the sentence imposed in the original trial and the authorized
sentence following retrial.

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appeal. (Ibid.) Therefore, the larger fines violate the California constitutional prohibition

against double jeopardy.

       Because the trial court‟s prison sentence is unauthorized and the restitution fine

and parole revocation fine are unconstitutional, we will modify the judgment first by

imposing a sentence of 16 years eight months (as previously calculated) and next by

reducing the restitution and parole revocation fines from $2,400 to $2,000 each.

                                              2.

                DENIAL OF REQUEST TO REAPPOINT COUNSEL

       On the date originally set for sentencing, the trial court granted defendant‟s

request to represent himself in order to file a motion for new trial and for sentencing.

Four months later at defendant‟s sentencing hearing, which had been continued at least

once at defendant‟s request, defendant asked the trial court to reappoint the public

defender. The trial court denied that request. Defendant contends the trial court abused

its discretion. He also concedes that the error is harmless if we reduce his sentence to 16

years eight months, which he agrees is the correct sentence and the one that would have

been imposed if he had been represented by an attorney at his sentencing hearing.

       Accordingly, although we do not share defendant‟s view that the trial court abused

its discretion when it denied defendant‟s request to have counsel reappointed to represent

defendant at sentencing, we will not address that issue. Even if we were to agree with

defendant, reversal would be required only if the error were prejudicial, i.e., it is

reasonably probable a result more favorable to defendant would have occurred if he had

been represented by counsel at sentencing. (People v. Smith (1980) 109 Cal.App.3d 476,


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486.) Because we will reduce the sentence the trial court imposed in this case, and the

reduced sentence eliminates any prejudice defendant could have suffered as a result of

not being represented by an attorney at sentencing, we will conclude any purported error

was harmless.

                                      DISPOSITION

       The judgment is modified by (1) reducing defendant‟s sentence on count 1 from

six years to four years, doubled, for a sentence of eight years, (2) reducing the Penal

Code section 1202.4 restitution fine from $2,400 to $2,000, and (3) reducing the Penal

Code section 1202.45 parole revocation restitution fine from $2,400 to $2,000, the latter

of which is stayed pending defendant‟s successful completion of parole. The trial court is

directed to prepare an amended abstract of judgment that reflects defendant‟s modified

sentence and to forward a copy of that amended abstract of judgment to the appropriate

agencies.

       The judgment is affirmed in all other respects.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                McKINSTER
                                                                                            J.
We concur:


RAMIREZ
                        P. J.


KING
                           J.



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