People v. Daniels

Opinion

CHANEY, J. A jury convicted defendant James C. Daniels of second degree murder using a deadly weapon, a knife. He was sentenced to a prison term of 16 years to life and ordered to pay $3,400 in restitution, comprising stipulated direct victim restitution in the amount of $3,000 (Pen. Code, § 1202.4, subd. (f)),1 a $200 restitution fine (§ 1202.4, subd. (b)), and a corresponding $200 parole revocation restitution fine, stayed (§ 1202.45).

We overturned the conviction on appeal because the trial court failed to give necessary jury instructions on the lesser included offense of involuntary manslaughter. {People v. Daniels (Mar. 11, 2011, B219184) [nonpub. opn.].)2 Defendant was then retried and reconvicted on the same charge and was again sentenced to 16 years to life in prison. He was again ordered to pay restitution, this time in the amount of $10,000, comprising a $5,000 restitution fine and an equal parole revocation restitution fine (stayed), but no direct victim restitution.

On appeal, defendant contends the increased monetary sentence violates state constitutional protections against double jeopardy. Although defendant arguably has forfeited the claim of error because he did not object to the sentence below, we will reach the issue because he also contends his attorney was ineffective. (People v. Scott (1997) 15 Cal.4th 1188, 1201 [65 Cal.Rptr.2d 240, 939 P.2d 354].) The People concede defendant’s increased monetary sentence was imposed in error, and we agree.

A person “may not twice be put in jeopardy.” (Cal. Const., art. I, § 15.) When a defendant successfully appeals a conviction and is retried and reconvicted on the same charge, the constitutional prohibition against double jeopardy precludes imposition of a more severe punishment after the second [32]conviction than was imposed after the first. (People v. Hanson (2000) 23 Cal.4th 355, 358 [97 Cal.Rptr.2d 58, 1 P.3d 650].) In People v. Hanson, the Supreme Court held restitution fines are punishment for purposes of double jeopardy, and on remand for resentencing after an appeal, a trial court may not impose restitution fines greater than those imposed in the original judgment. (Id. at pp. 366-367.)

Here, defendant was first ordered to pay total restitution of $3,400. After retrial, the trial court ordered him to pay $10,000 in restitution. This violated defendant’s right not to be subjected to a greater punishment after having successfully appealed his first conviction. We will therefore order the restitution component of the sentence reduced to not more than $3,400, at least $200 of which must be stayed. (§§ 1202.4, subd. (b), 1202.45; People v. Warded (2008) 162 Cal.App.4th 1484, 1496 [77 Cal.Rptr.3d 77].)