P. v. Casares

Filed 5/4/07 P. v. Casares 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Barry L. Plotkin, Judge. Affirmed as modified.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Edward Casares, Jr., guilty of first degree murder. (Pen. Code, 187, subd. (a)).^[1] The jury also found true the special circumstance that the murder was committed during the course of a carjacking/robbery ( 190.2, subd. (a)(17)) and the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury and death ( 12022.53, subd. (d)). The trial court sentenced him, defendant appealed, and we affirmed.

The California Supreme Court granted review, upon defendants petition, and transferred the case back to this court. We affirmed the conviction, but remanded the matter to the trial court for resentencing. Defendant now appeals and raises the exact same issues that this court previously resolved. In addition, he points out that the trial court erroneously imposed a parole revocation fine. The People concede, and we agree, that the parole revocation fine should be stricken. Otherwise, we affirm the judgment.

PROCEDURAL BACKGROUND^[2]

After the jury found defendant guilty of the first degree murder charge, the trial court initially sentenced him to 25 years to life for the murder, plus a consecutive 25 years to life for the firearm use enhancement. Defendant appealed, and this court filed an unpublished opinion affirming the judgment. (People v. Casares (Feb. 18, 2005, E034779) [nonpub. opn.].) Defendant petitioned the Supreme Court, which granted review. The Supreme Court then transferred the case back to this court to address the conflict between the sentence imposed and the special circumstance finding. This court ordered supplemental briefing from the parties to address whether the trial courts sentencing procedure constituted error, whether the sentence imposed was incorrect, and, assuming the trial court erred, what the appropriate remedy was.

In his supplemental brief, defendant argued that: 1) the trial courts sentence was correct because the jurys finding that the murder occurred in the commission of a carjacking/robbery was not a proper verdict, since the jury failed to find any particular special circumstance to be true; and 2) the special circumstance finding was invalid because the jury was not instructed to find a separate, unanimous verdict on the two alleged special circumstances (carjacking and robbery); also, the prosecution failed to prove each circumstance. This court addressed defendants arguments and affirmed the conviction, but remanded the matter to the trial court to impose a sentence of life without the possibility of parole. The Supreme Court denied review on January 25, 2006. (People v. Casares (Nov. 15, 2005, E034779) [nonpub. opn.] review den. Jan. 25, 2006, S139882.)

On remand, the trial court complied with this courts directions and resentenced defendant to life without the possibility of parole for the murder, plus 25 years to life on the firearm enhancement. The trial court also reinstated the restitution fines imposed at the initial sentencing hearing, including a $10,000 parole revocation fine under section 1202.45, to be suspended pending the successful completion of parole.

ANALYSIS

I. Defendants Claims Are Precluded by the Law of the Case Doctrine

On appeal, defendant again claims that the jurys special circumstance findings were invalid and that the original sentence of 50 years to life was correct. As defendant acknowledges, the first two claims in this appeal are the identical claims he presented to this court after the Supreme Court transferred the matter back to address the conflict between the sentence imposed and the special circumstance finding. This court rejected defendants claims in the November 15, 2005, opinion. Defendant is precluded from relitigating these claims.

Further review of defendants repeat claims is foreclosed by the doctrine of law of the case. The law of the case doctrine generally precludes multiple appellate review of the same issue in a single case. (In re Rosenkrantz (2002) 29 Cal.4th 616, 668.) The primary purpose served by the law-of-the-case rule is one of judicial economy. [Citation.] It prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances. [Citation.] (People v. Whitt (1990) 51 Cal.3d 620, 638.) The doctrine will not be adhered to where its application will result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation]. The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination. [Citation.] (People v. Stanley (1995) 10 Cal.4th 764, 787.)

Here, defendant has given us no valid reason to review his claims again; he simply asks that we reconsider them under the unique circumstances of this case. Absent any change in circumstances since the last time we reviewed them, there is no reason to indulge defendants request. He asserts that he is raising the same claims to preserve them for review by the Supreme Court. However, the record shows that defendant already petitioned the Supreme Court for review following this courts November 15, 2005, opinion, and the Supreme Court denied review. (People v. Casares (Nov. 15, 2005, E034779) [nonpub. opn.] review den. Jan. 25, 2006, S139882.)

II. The Parole Revocation Fine Should Be Stricken

Defendant asserts that the sentencing court improperly imposed a parole revocation fine under section 1202.45. The People correctly concede. A section 1202.45 fine is limited to cases in which the defendants sentence includes a period of parole. ( 1202.45.) Since defendant was sentenced to a term of life without the possibility of parole, the parole revocation fine should be stricken. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.)

DISPOSITION

The judgment is modified by striking the Penal Code section 1202.45 parole revocation fine. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

McKINSTER

J.

KING

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise noted.

^[2] The underlying facts of the offense are immaterial to this appeal.