People v. Utter

California Court of Appeal Sep 27, 1973 No. Crim. 22680Published

Before: Kingsley

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Holding. The trial court did not abuse its discretion in imposing consecutive sentences upon remand, as the defendant suffered no prejudice and the new sentence did not violate the prohibition against increased penalties following an appeal.

Issues

Whether the trial court erred in imposing consecutive sentences upon remand after the original murder conviction was reversed.
Whether the imposition of consecutive sentences violated the rule against imposing a heavier penalty after a successful appeal.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The only matter properly before the trial court at that stage was the resentencing of defendant on the convictions theretofore affirmed by this court.”

“We cannot say that that discretion was abused by the judgment ultimately entered.”

“In other words, defendant faces no longer sentence than he did after the trial, he is eligible for parole three years and eight months earlier than under the original sentence, and he is eligible for complete release after a fixed minimum.”

Opinion

KINGSLEY, J.

Defendant was charged with (count I) murder, (count II) robbery, and with three counts of grand theft. On motion under section

[368]

1118.1 of the Penal Code, one of the theft counts (count III) was dismissed; he was found guilty on all other counts. He was sentenced to state prison for life on the murder count, and to state prison for the term prescribed by law on the remaining counts; execution of the sentences on counts II and III was ordered stayed pending the service of the sentences on counts I, IV and V.

On appeal, this court reversed the judgment on count I on the stated ground that California had no jurisdiction over the offense therein involved, vacated the sentence erroneously imposed on the dismissed count (count in) and affirmed the judgment as to counts II, IV and V. However, we vacated the sentence on those three counts and remanded the case for further proceedings.

(People

Utter

(1972) 24 Cal.App.3d 535 [101 Cal.Rptr. 214].) The Supreme Court denied hearing.

On the remand, defendant unsuccessfully sought a new trial on counts II, IV and V. The action of the trial court was correct. The only matter properly before the trial court at that stage was the resentencing of defendant on the convictions theretofore affirmed by this court.

After a thorough allocution, the trial court imposed consecutive sentences on counts II, IV and V. Defendant’s principal contention on this appeal is that it was error to impose consecutive as distinguished from concurrent sentences. We see no error.

As we have pointed out above, the concurrent sentences on counts II, IV and V were required by the provisions of section 669 of the Penal Code. The trial court, at the time of the original sentence, had neither the duty nor the opportunity to consider any other alternative. But, once count I was out of the case, a duty to exercise judicial discretion as to the relationship between the remaining counts arose. It was because of that fact, and in order to permit the trial court to exercise the discretion accorded to it for the first time, that we sent the case back for the proceedings now

People v. Utter

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KINGSLEY, J.

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