P. v. Ramos
Filed 2/3/06 P. v. Ramos CA2/3



NOT TO BE PUBLISHED


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION THREE





THE PEOPLE,

Plaintiff and Respondent,

v.

JENSEN IAN RAMOS,

Defendant and Appellant.
B182030

(Los Angeles County

Super. Ct. No. KA057535)


APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed and remanded with directions.

Law Offices of Dennis A. Fischer and Dennis A. Fischer and John M. Bishop for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Jensen Ian Ramos appeals from the judgment entered following his convictions by jury on four counts of attempted willful, deliberate, and premeditated murder (Pen. Code, § 664, 187; counts 1 through 4)[1] and count 5 - shooting at an occupied motor vehicle (§ 246), each offense with firearm use (§ 12022.53, subd. (b)) and committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)).

Following remand after appellant's first appeal, the trial court resentenced him to prison on counts 1 and 2 to consecutive terms of life with the possibility of parole for attempted murder, plus 10 years for firearm use, with service of a 15-year minimum prison term prior to parole eligibility pursuant to section 186.22, subdivision (b)(5). The court also imposed concurrent sentences on counts 3 and 4, and stayed punishment on count 5 pursuant to section 654.

In this case, we reject appellant's contention that his resentence on counts 1 and 2 was greater than his original sentence on those counts; therefore the resentence violated state constitutional double jeopardy and federal due process protections. As discussed post, appellant is really disputing only the greater consecutive resentence on count 2. However, the trial court was entitled to impose the greater resentence on count 2 in the exercise of its discretion since, during initial sentencing, the trial court lawfully could have imposed in the exercise of its discretion the sentence on count 2 that the court ultimately imposed on that count during resentencing and the initial sentence on count 2 was unauthorized and void. Therefore the trial court was entitled to resentence appellant based on the status quo that existed prior to the imposition of the unauthorized sentence.

CONTENTION
Appellant contends his resentence on counts 1 and 2 was greater than his original sentence on those counts; therefore the resentence violated state constitutional double jeopardy and federal due process protections.

DISCUSSION
The Trial Court's Resentence Did Not Violate State Double Jeopardy or Federal Due Process Principles.

1. Pertinent Facts.

Following appellant's conviction by jury on the above mentioned counts, the trial court imposed, as to count 1, life with the possibility of parole for the attempted murder, plus 10 years pursuant to section 12022.53, subdivision (b), plus 15 years pursuant to section 186.22, subdivision (b)(5).[2] The trial court imposed, as to count 2, a consecutive term of life with the possibility of parole for attempted murder, plus three years four months for the section 12022.53, subdivision (b) enhancement, plus five years pursuant to section 186.22, subdivision (b)(5). The above terms of three years four months, and five years, represented subordinate terms (§ 1170.1, subd. (a)) of one-third of 10 years, and one-third of 15 years, respectively. The court imposed concurrent terms on counts 3 and 4, and stayed punishment on count 5 pursuant to section 654.

Appellant appealed, leading to our decision in People v. Ramos (2004) 121 Cal.App.4th 1194 (Ramos I). There, respondent conceded the trial court committed sentencing error when, as to each of counts 1 and 2, the court treated section 186.22, subdivision (b)(5), as an enhancement instead of a 15-year mandatory minimum prison term appellant was to serve before he became eligible for parole. (Ramos I, at p. 1209.) Respondent also conceded the trial court, when imposing consecutive sentencing on count 2, erred by imposing, pursuant to section 1170.1, subdivision (a), subordinate (one-third) terms on the firearm use and section 186.22, subdivision (b) terms. (Ramos I, at p. 1209.) Imposition of subordinate terms was error because section 1170.1, subdivision (a) does not apply to indeterminate sentences, such as appellant's life sentence on count 2. We agreed in Ramos I that the trial court committed sentencing errors. (Id. at p. 1198.)

As to remedy, we noted respondent's assertion that, following remand, the trial court properly could consecutively sentence appellant on each of counts 1 and 2 to life with the possibility of parole for attempted murder, plus 10 years for firearm use, with a 15-year minimum parole eligibility term. (Ramos I, supra, 121 Cal.App.4th at p. 1209.) We noted respondent argued that we should modify the judgment to impose that â€