People v. Rivera

California Court of Appeal Jun 21, 1984 No. Crim. No. 15730Published

Before: Butler

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Holding. The People lack statutory authority to appeal a trial court's resentencing order issued under Penal Code section 1170, subdivision (f)(1), because such a resentencing constitutes a new judgment rather than an appealable order after judgment or a modification of a verdict.

Issues

Whether the People may appeal a resentencing order under Penal Code section 1238, subdivision (a)(5), as an order after judgment affecting substantial rights.
Whether the People may appeal a resentencing order under Penal Code section 1238, subdivision (a)(6), as an order modifying a verdict or reducing punishment.

Disposition. dismissed

Quotations verified verbatim against the opinion

“We conclude the appeal here, in effect, is from the judgment, is not from an order after judgment and is not permitted under section 1238, subdivision (a)(5).”

“The imposition of the concurrent sentence did not modify a verdict or a finding by reducing the degree of the offense, the punishment imposed or modifying the offense to a lesser one.”

“We do not expand by judicial fiat the grounds specified by the Legislature allowing appeal by the people.”

Opinion

BUTLER, J. Richard Raul Rivera pays his third visit to this court. The first time, we affirmed his convictions for assault with intent to commit murder with enhancing allegations and first degree burglary (People v. Rivera (1981) 127 Cal.App.3d 136 [179 Cal.Rptr. 384]). The second time, we agreed with him the court failed to consider the Board of Prison Terms’ determination Rivera’s sentence of ten years and four months (six years for the assault, three years for the great bodily injury enhancement and a sixteen-month consecutive sentence for the burglary) was disparate, i.e., the burglary sentence should have been concurrent, not consecutive. The Supreme Court ordered our opinion on that appeal depublished {People v. Rivera * (Cal.App.)). The depublished opinion continues to be the law of the case. (Cal. Rules of Court, rule 977(b).)

This time around, Rivera is the respondent. The People now appeal his resentence on the burglary conviction to be concurrent and not consecutive with the assault and enhancement for a total of nine years. The People [496]contend the court failed to exercise its independent judgment and simply reduced in robot fashion the sentence to conform with the board’s views.

We address appealability by the People of the resentencing, having earlier in our depublished opinion upheld Rivera’s right to appeal the court’s finding the sentence was not disparate (People v. Rivera, supra, (Cal.App.)).

Upon our remand to consider Rivera’s sentence and consistent with the procedural requirements of Penal Code section 1170, subdivision (f)(1),1 the court scheduled a hearing, recalled the previously ordered sentence and commitment order, and resentenced Rivera on the burglary conviction to a term concurrent with the assault and enhancement sentences.

The right of the People to appeal in criminal cases is limited to the circumstances set out in section 1238 (People v. Drake (1977) 19 Cal.3d 749, 754 [139 Cal.Rptr. 720, 566 P.2d 622]). Here, the People claim their right to appeal under section 1238, subdivision (a)(5), as well as subdivision (a)(6).

Section 1238, subdivision (a)(5), provides: “(a) An appeal may be taken by the people from any of the following:

People v. Rivera

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