Filed 4/19/17 P. v. Herrera CA4/1
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICIA TRONCOSA HERRERA,

Defendant and Appellant.
D069315



(Super. Ct. No. JCF28468)

APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Patricia Troncosa Herrera appeals a judgment entered following sentencing proceedings conducted on remand. She contends the trial court mistakenly believed that this court's prior opinion barred it from dismissing one or both of her prior conviction enhancements. She further contends the court's misunderstanding of its discretion violated her federal constitutional right to due process of law. We conclude the court understood and did not abuse its discretion in resentencing her. We therefore affirm.
PROCEDURAL BACKGROUND
Herrera previously appealed a judgment following her jury conviction of possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1), transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 2), and receiving stolen property (Pen. Code, § 496, subd. (a); count 4). The jury also found true allegations that in committing the possession and transportation offenses, Herrera was personally armed with a firearm (Pen. Code, § 12022, subd. (c)). Additionally, Herrera admitted the truth of allegations that she had two prior convictions (Health & Saf. Code, § 11370.2, subd. (b)). The trial court sentenced Herrera to 14 years in prison as follows: the upper term of four years on the transportation conviction, a consecutive middle term of four years on the fire arm enhancement, and consecutive three-year terms for each of the two prior convictions. The court imposed the upper term of three years for the possession for sale conviction but stayed its execution pursuant to Penal Code section 654.
In Herrera I, we rejected Herrera's challenges to the sufficiency of the evidence to support her convictions and the true finding on the firearm enhancement. We also concluded that sufficient evidence supported the true findings on the prior conviction allegations. However, we concluded the trial court had failed to exercise its discretion to strike the prior conviction allegations while using the same true facts to both aggravate a base term and impose an enhancement. Such improper dual use ran afoul of Penal Code section 1170, subdivision (b) and California Rules of Court, rule 4.420. We stated: "Furthermore, contrary to the People's assertion, we cannot conclude the trial court's error was harmless. Rather, the court relied heavily on Herrera's two prior convictions in selecting sentences for her transportation conviction and firearm enhancement. Therefore, we conclude it is reasonably probable she would have obtained a more favorable result had the court not erred by improperly using her prior convictions in selecting those sentences. [Citation.] On remand, the court shall resentence Herrera and consider all appropriate sentencing factors in so doing." (Herrera I, supra, D064988, at pp. 21-22.) Our disposition stated: "Herrera's convictions and enhancements are affirmed. The sentence imposed by the trial court is reversed and the matter is remanded for resentencing consistent with this opinion." (Id. at p. 22.)
Prior to the resentencing hearing, Herrera filed a document with the court titled: "Statement of mitigation; motion to set aside true finding of firearm possession; and request to strike enhancement per [California Penal Code section] 1385." (Some capitalization omitted.) In it she moved to strike the firearm true finding, arguing: "The jury lacked sufficient evidence to find the defendant guilty of being in possession of a firearm." She also moved the court to strike her two prior drug convictions under Penal Code section 1385.
At the resentencing hearing, the colloquy between the court and defense counsel about Herrera's motion was as follows:
"The Court: And [defense counsel], you made the motion to strike. We don't have any written opposition. But I will tell you the tentative is to deny that motion actually for lack of jurisdiction. [¶] This matter went up on appeal and came back. The finding that you're attempting to strike was affirmed on appeal and was therefore not included in the remittitur. And my discretion or my jurisdiction to take action after the remittitur only includes the matters that the Court of Appeal told me to address. And that one they've said, 'That's okay.' [¶] So . . .
"[Defense counsel]: Yes, your Honor.
"The Court: I don't know what to do with it.
"[Defense counsel]: I will withdraw my request.
"The Court: Okay.
"[Defense counsel]: That particular request.
"The Court: So motion to strike is denied for those reasons not—I mean, I previously considered it on the merits, I think, at the initial sentencing, but I don't have the jurisdiction to consider it now. [¶] All right. So that leaves us with resentencing. And we've got the statement in mitigation . . . and although much of this document is devoted to the motion to strike, there . . . are the statements in mitigation."
The court asked defense counsel if he wanted to add anything. Defense counsel replied: "Your Honor, I would just ask again that the court exercise its discretion in striking the two prior convictions that were found true and modify the sentence according to the calculation." The court and defense counsel discussed Herrera's motion to strike the prior conviction true findings as follows:
"[Defense Counsel]: . . . And I would ask that the court strike the prior convictions in this, given the middle term and firearm enhancement. [¶] I believe that in the California Rules of Court[, rule] 4.420, you can consider the priors to impose.
"The Court: Right. [¶] Well that's the whole reason we're here. But the prior—your client was sentenced to two 36-month consecutive terms for the two prior convictions. And the Court of Appeal said, 'That's okay.' "
In resentencing Herrera, the court did not violate the prohibition against dual use. It sentenced her to 13 years in prison as follows: the middle term of 2 years for the possession conviction, stayed pursuant to Penal Code section 654 ; the middle term of 36 months for the transportation conviction; the middle term of 48 months for the firearm enhancement; and two 36-month terms for the prior conviction allegations.


DISCUSSION
Under the law of the case doctrine, a principle or rule of law necessary to an appellate decision becomes the law of the case, and it is binding in later proceedings in the case. The doctrine is not jurisdictional, but rather is based on judicial economy, which demands finality to decisions. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 786-787.) A related rule is jurisdictional. When a case is remanded following an appellate decision, the scope of what may be decided by the trial court is circumscribed by the terms of the remand. " '[T]he order of the appellate court as stated in the remittitur, "is decisive of the character of the judgment to which the appellant is
entitled." ' [Citation.] On remand, the lower court may act only within these express jurisdictional limits." (People v. Lewis (2004) 33 Cal.4th 214, 228.)
To determine what was intended by our disposition, it must " 'be read in conjunction with the appellate opinion as a whole' [citation] and . . . considered in the framework of the statutory scheme to which it relates." (In re Candace P. (1994) 24 Cal.App.4th 1128, 1132, italics added.) Whether the trial court correctly interpreted our opinion is a question of law subject to independent review. (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.)
We reject Herrera's contention that the language used by the trial court in denying her motion to strike shows the court's misunderstanding of our disposition in Herrera I, supra, D064988. Herrera further contends, "The trial court did not exercise its discretion at all, believing it had no right to . . . dismiss one or both of the prior conviction enhancements." To the contrary, the court demonstrated it understood it had discretion and acted according to it by correcting the error we pointed out in Herrera I. Its new sentence did not run afoul of the California Rules of Court, rule 4.420's prohibition of dual use, which applies to using an element of a crime to impose the upper term. It does not apply when, as here, the middle term is imposed. (See People v. Haynes (1984) 160 Cal.App.3d 1122, 1137-1138.) Similarly, the prohibition against dual use in Penal Code section 1170, subdivision (b) does not apply when the middle term is imposed. In any event, "Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if '[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.' " (People v. Coleman (1989) 48 Cal.3d 112, 166.)
Taken in context, the trial court's statement, including the italicized portions above, that it had no jurisdiction to strike, referred to the firearm allegation true finding. The court correctly pointed out that our disposition affirmed the firearm enhancement, and that our remittitur did not reference the enhancement; therefore, it was without jurisdiction to alter that true finding. "On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court; it cannot modify, or add to, those directions." (People v. Oppenheimer (1965) 236 Cal.App.2d 863, 865-866.)
The court was aware of its discretion because that was the sole point of our remittitur in Herrera I. Further, both in its papers and at the hearing, Herrera specifically requested that the trial court strike her prior conviction true findings. Herrera referenced Penal Code section 1385 in her moving papers, and she referenced California Rules of Court, rule 4.420 at the hearing. The trial court responded by acknowledging its ability to do strike the strike, stating, "Right. [¶] Well, that's the whole reason we're here." It declined to exercise its discretion to strike a prior strike under Penal Code section 1385; although it did not explain its reason for that decision, it was not required to do so. (People v. Gillispie (1997) 60 Cal.App.4th 429, 433.)
DISPOSITION
The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


DATO, J.