P. v. Bates

Filed 7/3/07 P. v. Bates CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian, III, Judge. Affirmed in part, reversed in part and remanded for resentencing.

During Adron Lee Bates's prosecution for selling cocaine base (People v. Bates (Super. Ct. San Diego County, 2006, No. SCD178150)) (hereafter case SCD178150),^[1]Bates disrupted the court proceedings and resisted the officers who tried to subdue him in the courtroom. He was prosecuted for resisting an executive officer (Pen. Code,  69)^[2]and resisting an officer ( 148, subd. (a)(1)). The jury convicted him on both counts, and Bates admitted one strike prior ( 667, subds. (b)-(i), 668, 1170.12) and six prison priors ( 667.5, subd. (b)).

The trial court sentenced Bates in this case at the same time that it sentenced him in case SCD178150. The trial court specified the sentence in case SCD178150 as the principal term and imposed a prison sentence of 20 years in that case, which included a six-year sentence for the same six prison priors that Bates also admitted in this case. With respect to the convictions obtained in this case, the trial court sentenced Bates to 16 months in prison and stayed the execution of the six‑year sentence arising from the same prison priors for which it had imposed a six-year sentence in case SCD178150.

Bates argues (1) that the trial court abused the discretion given to it under Evidence Code section 352 by admitting evidence concerning Bates's plan to disrupt the court proceedings by using his feces as distraction in order to grab an officer's gun and try to shoot his attorney and the trial judge; (2) that the prosecutor committed misconduct by making improper statements during her closing argument; and (3) that the trial court erred by staying execution of Bates's six-year sentence for his prison priors in this case rather than either striking the sentence or imposing it.

We conclude (1) that that the trial court did not abuse its discretion by admitting evidence of Bates's planned courtroom disruption, and (2) that Bates's arguments regarding prosecutorial misconduct lack merit. However, we conclude that the trial court did err by staying execution of the six-year sentence for Bates's prison priors rather than imposing the sentence or exercising its discretion to strike it. Accordingly, we vacate the portion of the trial court's judgment staying the execution of that part of Bates's sentence, and we remand for the trial court to determine whether to impose the six-year sentence or to exercise its discretion to strike it.

I

FACTUAL AND PROCEDURAL BACKGROUND

While Bates was being prosecuted for selling cocaine base, Bates disrupted courtroom proceedings on two different days.

The first incident occurred on Friday, September 24, 2004, during pretrial proceedings. Deputy Sheriff Baiza was working as the courtroom bailiff. Deputy Tagle brought Bates into the courtroom with his hands restrained in waist chains, and he seated Bates at a table with defense counsel. Bates engaged in an agitated conversation with defense counsel during which he used profanity. The judge entered the courtroom and told Bates not to use profanity. In response, Bates uttered profanity under his breath and then calmed down for a while.

However, when his wife entered the courtroom, Bates became agitated again. He jumped up from his seat, grabbed the table and flipped it over, throwing it forward approximately five feet toward the judge's bench. After Bates took a few steps forward toward the judge's bench, Deputy Baiza and Deputy Tagle tackled him to the ground. Bates struggled for a few minutes until other deputies arrived and established control over Bates.

The second incident occurred on the next court day  Monday, September 27, 2004. That morning, Deputy Carrillo picked up Bates from the holding tank. Bates appeared agitated and asked to use the bathroom. After Bates finished using the bathroom, Deputy Carrillo smelled the odor of feces when he was putting on Bates's leg chains.

Deputy Carrillo transported Bates to the courtroom and seated him at a table with defense counsel. Bates complained that Deputy Carrillo was standing behind him. Bates then pulled his chair back from the table and attempted to turn to look at a woman seated in the gallery. Deputy Carrillo told Bates to face forward, but Bates was defiant. Deputy Carrillo put his hand on Bates's shoulder, and Bates thrashed around in his chair, using profanity toward Deputy Carrillo. The other deputy sheriff in the courtroom, Deputy Delgado, assisted by placing her hands on Bates's shoulder and arm.

After Bates continued to resist and use profanity, Deputy Carrillo applied a modified carotid restraint to Bates's neck. Bates stood up, and Deputy Carrillo forced him to the ground. Bates bit Deputy Carrillo's arm, in response to which Deputy Carrillo punched Bates in the face. Bates continued to resist and reached toward Deputy Carrillo's gun belt, which Deputy Delgado responded to by pinning down Bates's hands. Because he felt that the situation was not under control, the prosecutor assisted by grabbing Bates's legs and holding them together. Other deputies arrived to subdue Bates, and he was eventually escorted back to the jail, where a handball sized ball of feces was found in his underwear.

For the September 24, 2004 incident, Bates was charged with resisting an officer ( 148, subd. (a)(1)), and for the September 27, 2004 incident, Bates was charged with resisting an executive officer by the use of force and violence ( 69).^[3]

At trial, over Bates's objection, the jury heard evidence that prior to appearing in court on September 27, 2004, Bates told a fellow inmate that he planned to disrupt the court proceedings. Specifically, fellow jail inmate Donald Williams testified to hearing Bates talks about a plan to disrupt the court proceedings by using his feces as a distraction, after which he would try to grab a gun from a deputy sheriff and shoot defense counsel and the judge. Further, a deputy sheriff who worked in the jail  Deputy Sheriff Crandall  testified that Williams told him immediately after the September 27, 2004 incident that Bates had stated he was going to throw feces on his lawyer, grab a gun from one of the deputies and shoot defense counsel and the judge.

One of Bates's defenses at trial was that because he has impaired vision, he would not have devised a plan to try to steal a gun and shoot defense counsel and the judge, knowing that he could not succeed. Defense counsel also argued to the jury that Bates should not be found guilty because he acted reasonably to defend himself in response to excessive force applied by the deputy sheriffs.

The jury convicted Bates on both counts, and Bates admitted one strike prior ( 667, subds. (b)-(i), 668, 1170.12) and six prison priors ( 667.5, subd. (b)). The trial court sentenced Bates in this case at the same time it sentenced Bates for his conviction in case SCD178150. As relevant to one of the issues that Bates presents on appeal, the trial court stayed the execution of the six-year prison term for the six prison priors that Bates admitted in this case, but it ordered Bates to serve a six-year sentence for those same prison priors in case SCD178150.

II

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion byAdmitting Evidence of Bates's Plan to Cause a Disruption in the Courtroom

Bates argues that the trial court abused its discretion under Evidence Code section 352 by admitting the testimony of Williams and Deputy Crandall about Bates's alleged plan to create a courtroom disturbance using his feces. Bates argues that "[b]ecause Bates was charged with general intent crimes, the evidence had minimal if any probative value, especially when weighed against its extremely prejudicial effect."

"When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers 'substantially outweigh' probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion." (People v. Cudjo (1993) 6 Cal.4th 585, 609.) "The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value." (People v. Horning (2004) 34 Cal.4th 871, 900.)

In response to Bates's motion to exclude evidence of his plan to disrupt the courtroom proceedings, the prosecutor argued that the evidence was relevant because Bates would be seeking self-defense instructions and was claiming that the officers used excessive force and acted unreasonably under the circumstances. Thus, argued the prosecutor, Bates's state of mind was relevant to show whether Bates was reacting to the officers' excessive force by attempting to defend himself, or, on the other hand, whether Bates was purposely trying to disrupt the courtroom proceedings.

The trial court agreed. It stated that even though Bates was charged with general intent crimes, the evidence was "relevant to determining whether he was sitting there with an intention to attack a deputy and found an excuse to do so or whether he is a victim of being picked on by deputies, et cetera." Conducting the weighing required by Evidence Code section 352, the trial court acknowledged that the potential prejudice in admitting the evidence was having the jury hear testimony "that the defendant was planning to potentially shoot or kill someone." On the other hand, the trial court stated, "This is an incident where it's alleged to have been . . . a violent struggle in the courtroom, with reaching for a gun. And so, for a jury to hear that he said he was planning to grab a gun and shoot somebody . . . I think it's quite probative of whether or not in fact he was being intentionally violent himself or whether he was simply defending himself."

We conclude that the trial court was well within its discretion to rule that the evidence was admissible under Evidence Code section 352. The record confirms that one of Bates's defenses at trial was that the deputy sheriffs used excessive force during the September 27, 2004 incident, in reaction to which Bates reasonably defended himself. Consistent with this theory, the jury was instructed regarding self-defense and the use of excessive force.^[4]

Thus, although the crimes with which Bates was charged are general intent crimes, in that they do not require the prosecution to establish that Bates acted with any specific state of mind other than to do the proscribed act (see People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9 [ 69]; In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 [ 148, subd. (a)]), Bates's state of mind was relevant here for the independent reason that it would tend to show whether Bates was acting in self-defense or whether he was intentionally creating a disruption in the courtroom on September 27, 2004. In light of the relevance of the evidence, it was reasonable for the trial court to conclude that despite the potentially prejudicial effect of the evidence, it should be admitted.

B. There is No Merit toBates's Claim that theProsecutor Committed Misconduct During Closing Argument

Bates takes issue with three statements that the prosecutor made during her closing argument and rebuttal. He contends that the statements amount to prosecutorial misconduct and warrant reversal of his conviction.

First, during the prosecutor's closing argument, she addressed the fact that Bates has impaired vision. The prosecutor stated, "His vision presents no defense to these charges. The defense has offered that to invoke sympathy for the defendant . . . ." Defense counsel interposed a general objection, which the trial court overruled.

Second, during her rebuttal argument, the prosecutor stated that defense counsel "knows that the conduct that his defendant engaged in has been proven to you beyond a reasonable doubt." Defense counsel interrupted and objected, "She's assigning misconduct to me." The trial court overruled the objection. Defense counsel revisited this objection after closing argument ended and asked the trial court to instruct the jury that the statement was improper and they should not consider it. The trial court denied the request.

Third, during her rebuttal argument, while addressing whether the officers acted appropriately in restraining Bates, the prosecutor stated, "Think about how difficult [the officers'] position is when they are entrusted with the public trust, entrusted with keeping all of us secure and safe in the environment, making sure the judge is safe when he's sitting there on the bench." Defense counsel objected on the ground that the prosecutor was "appealing to the sympathy of the jury." The trial court overruled the objection.

1. Bates Did NotWaive His Right to Pursue the Issue on Appeal

We first address the Attorney General's argument that Bates may not raise the issue of prosecutorial misconduct on appeal because defense counsel did not ask the trial court to given an admonition to the jury concerning each of the prosecutor's allegedly improper statements.

The general rule stated by our Supreme Court is that " '[t]o preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' " (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp).) However, our Supreme Court has also explained that a defendant's failure to request an admonition does not forfeit an appeal "[w]hen, as here, the court immediately overrules an objection to alleged prosecutorial misconduct." (People v. Green (1980) 27 Cal.3d 1, 35, fn. 19 (Green).) This is because in such a situation, "the defendant has no opportunity to make such a request and his failure to do so obviously cannot be held against him." (Ibid.)

Here, defense counsel objected to each of the three alleged instances of prosecutorial misconduct during trial, and the trial court immediately overruled the objections, giving defense counsel no opportunity to request an admonition. Thus, according to Green, supra, 27 Cal.3d 1, 35, defense counsel was not required to request an admonition to preserve the issue for appeal.^[5]

2. The Prosecutor Did Not Commit Misconduct

We next consider whether any of the three statements identified by Bates constitute prejudicial prosecutorial misconduct.

Prosecutorial misconduct exists " 'under state law only if it involves " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (Earp, supra, 20 Cal.4th at p. 858.)^[6] "When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred, keeping in mind that ' "[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom" ' [citation], and that the prosecutor 'may "vigorously argue his case" . . . , "[using] appropriate epithets warranted by the evidence." ' [Citation.] Second, if misconduct had occurred, we determine whether it is 'reasonably probable that a result more favorable to the defendant would have occurred' absent the misconduct." (People v. Welch (1999) 20 Cal.4th 701, 752-753.)

The first alleged instance of misconduct is the prosecutor's statement that Bates's "vision presents no defense to these charges. The defense has offered that to invoke sympathy for the defendant . . . ." Bates argues that in making this remark, the prosecutor suggested that defense counsel had presented evidence for an improper purpose (i.e., to elicit sympathy) and thus "impugned the integrity of defense counsel."

We reject this argument. Although the statement assigns a motive to "the defense" of seeking sympathy for Bates, the statement as a whole is innocuous and does not rise to the level of a "deceptive or reprehensible method" of " ' " 'attempt[ing] to persuade . . . the jury.' " ' " (Earp, supra, 20 Cal.4th at p. 858.) "An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Further, even if the statement was improper, because the evidence presented at trial provided overwhelming evidence of Bates's guilt, it is not reasonably probable that a more favorable outcome would have occurred in the absence of the statement. (See People v. Fields (1983) 35 Cal.3d 329, 363 [prosecutorial misconduct was harmless error when the evidence of defendant's guilt was overwhelming].)

The second alleged instance of misconduct is the prosecutor's statement that defense counsel "knows that the conduct that his defendant engaged in has been proven to you beyond a reasonable doubt." Bates argues that, through this statement, the prosecutor was asserting that defense counsel believed Bates was guilty.

If the statement could properly be read in such a manner, it would indeed constitute misconduct. "[I]t is . . . improper for the prosecutor to argue to the jury that defense counsel does not believe in his client's defense. [Citations.] Such argument directs the jury's attention to an irrelevant factor and might in some contexts be quite prejudicial." (People v. Thompson (1988) 45 Cal.3d 86, 112-113; see also People v. Bell (1989) 49 Cal.3d 502, 537 ["It is improper for a prosecutor to argue to the jury as an analysis of the defense argument or strategy that defense counsel believes his client is guilty"].) However, we agree with the trial court that the statement cannot be fairly read as making such an assertion.^[7]

In context, it is clear that the prosecutor was not referring to a belief that Bates was guilty. Instead, as the context of the statement shows, the prosecutor was explaining that because there was no question regarding Bates's conduct in the courtroom, the defense was necessarily focusing on the theory that Bates had acted in self-defense. The prosecutor argued,

"[T]he defense attorney . . . wants you to buy into this issue of excessive force. He knows that the conduct that his defendant engaged in has been proven to you beyond a reasonable doubt. [Interposition of defense counsel's objection and the trial court's ruling.] He was resistive, he was using force and violence against the officer. So the only way to try to explain his conduct and try to get you to return a verdict of not guilty is to somehow claim that prior to . . . the defendant's use of force and violence, somehow the officers were using excessive force."

Such a statement did not comment on defense counsel's belief in his client's guilt, and thus the prosecutor did not commit misconduct by making it.^[8]

The third alleged instance of misconduct is the prosecutor's request to the jury that they "[t]hink about how difficult [the officers'] position is when they are entrusted with the public trust, entrusted with keeping all of us secure and safe in the environment, making sure the judge is safe when he's sitting there on the bench." Bates argues that this statement improperly appealed to the jury's sympathy. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250 ["appeals to the sympathy or passion of the jury are misconduct at the guilt phase of trial"].)

We do not agree that the statement was an attempt to appeal to the sympathy of the jury. Nor do we agree with Bates's argument that the prosecutor "invited the jury to speculate about and base their decision on matters that were both irrelevant and outside the evidence presented to them." The prosecutor made the challenged statement while arguing that even if the officers used force against Bates, the force should not be viewed as excessive because the officers were entrusted with doing the difficult job of protecting court personnel and the public. The statement thus related directly to the disputed issue of whether the officers used excessive force under the circumstances, and it was not purely an appeal to the sympathy of the jury. Further, the argument was based on evidence that had been presented at trial, as the jury heard testimony about the role of deputy sheriffs to maintain security in the courtroom. Accordingly, the prosecutor's statement was proper in the context of Bates's trial, and was not an impermissible attempt to appeal to the sympathy of the jury.^[9]

C. The Trial Court Erred by Staying Execution of the Six-Year SentencingEnhancement Based on Bates's Prior Prison Terms

Bates was sentenced in this case and case SCD178150 at the same time. The same six prior prison terms were alleged in both cases, and Bates admitted them in both cases. In case SCD178150, the trial court imposed six consecutive one-year sentences for the six prior prison terms. In this case, the trial court stayed the execution of the sentence on the six prior prison terms (hereinafter, the six‑year sentence).

Bates argues that the trial court was not authorized by section 654 to stay the six-year sentence in this case. He contends that the trial court was required to either impose the six-year sentence or to strike it, and that, on appeal, we should order that the six-year sentence be stricken.

The precise question here is: when (a) two separate cases are sentenced together and (b) the defendant is eligible under section 667.5 for the imposition of a sentencing enhancement for prior prison terms in both cases, does section 654 require the trial court to stay the execution of the prior prison term enhancement in one of the two cases?

We conclude that section 654 does not apply in the situation presented by this case. Section 654 provides in relevant part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Our Supreme Court has concluded that section 654 does not apply to the imposition of sentence enhancements based on prior prison terms under section 667.5, subdivision (b), because section 654 prohibits multiple punishment for the same "act or omission," but section 667.5 enhances a sentence based on a defendant's recidivist status, not based on a defendant's acts or omissions. (People v. Coronado (1995) 12 Cal.4th 145, 158-159, italics added.) "[P]rior prison term enhancements are attributable to the defendant's status as a repeat offender [citations]; they are not attributable to the underlying criminal conduct which gave rise to the defendant's prior and current convictions. Because the repeat offender (recidivist) enhancement . . . does not implicate multiple punishment of an act or omission, section 654 is inapplicable." (Id. at pp. 158, 159 [holding "that a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code section 23152 to a felony under Vehicle Code section 23175," which authorizes felony punishment of habitual drunk drivers, "and to enhance the sentence therefor under section 667.5, [subdivision] (b) without violating section 654's bar against multiple punishment of an act or omission"].)

Because, as established by Coronado, section 654 does not apply to enhancements imposed under section 667.5, section 654 could not have applied in this case to require the trial court to stay the execution of the six-year sentence imposed pursuant to section 667.5. Accordingly, the trial court erred by determining that it was required by section 654 to stay the execution of the six-year sentence.

Bates correctly points out that instead of being required to stay the execution of the six-year sentence, the trial court was required either (1) to impose the six-year sentence or (2) to exercise its discretion to strike it pursuant to section 1385. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of section 667.5[, subdivision ](b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken"]; People v. Meloney (2003) 30 Cal.4th 1145, 1155 (Meloney) ["It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to 'strike the additional punishment for that enhancement in the furtherance of justice' " (fn. omitted)]; People v. Bradley (1998) 64 Cal.App.4th 386, 391 ["No doubt, section 667.5, subdivision (b) enhancements are subject to the exercise of the trial court's discretion to strike pursuant to section 1385, subdivision (a)"].)^[10]

Here, because of its apparent belief that section 654 required it to stay execution of the six-year sentence, the trial court did not consider whether to impose the six-year sentence or to exercise its discretion to strike it under section 1385. Thus, we will remand for the trial court to decide how to proceed with respect to the six-year sentence.

DISPOSITION

The portion of the trial court's judgment staying the execution of the six-year sentence for Bates's six prior prison terms ( 667.5, subd. (b)) is vacated, and this matter is remanded for the trial court to decide how to proceed concerning the six-year sentence. In all other respects, the judgment is affirmed.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.

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^[1] Bates's appeal of the conviction in case SCD178150 is the subject of a separate appeal in this Court, case No. D048360.

^[2] Unless otherwise indicated, all further statutory references are to the Penal Code.

^[3] As relevant here, section 69 applies to "[e]very person who . . . knowingly resists, by the use of force or violence, [an executive officer], in the performance of his duty," and section 148, subdivision (a)(1) applies to "[e]very person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . ."

^[4] Among other things, the jury was instructed, "[I]f you find that the peace officer used unreasonable or excessive force in discharging his duties, the person being detained has no duty to refrain from using reasonable force to defend himself against the use of the excessive force."

^[5] Although defense counsel did later request a curative instruction with respect to one of the prosecutor's statements, she was not required to do so to preserve the issue.

^[6] In more extreme cases, a defendant's federal due process rights are violated when a prosecutor's improper remark " ' " 'infect[s] the trial with unfairness,' " ' " making it fundamentally unfair. (Earp, supra, 20 Cal.4th at p. 858.)

^[7] As the trial court explained, "The court believes that there was no statement made by the prosecutor that could reasonably be construed as an assertion that the defense attorney had knowledge of the defendant being guilty, but nevertheless was trying to trick the jury in some manner. I think that the arguments of the prosecutor were all of the nature of the evidence being clear despite the argument of the defense counsel . . . ."

^[8] Bates argues that his Sixth Amendment right to effective assistance of counsel and Sixth Amendment right to confrontation were infringed by the prosecutor's purported comments that defense counsel knew about Bates's guilt and that defense counsel was improperly playing on the sympathy of the jury. Because we conclude that the prosecutor's comments were appropriate within the context of this case, we reject Bates's argument that his constitutional rights were infringed.

^[9] In addition, as we have noted, the evidence of Bates's guilt was overwhelming. Thus, if there was any error, it was harmless.

^[10] Bates acknowledges that the trial court was required "either to impose or to strike" the six-year sentence, but he argues that the proper remedy is for us to order that the six-year sentence be stricken. We disagree. The record does not permit us to determine how the trial court would have exercised its discretion had it not believed that it was required to stay the execution of the six-year term under section 654. Thus a remand for resentencing regarding the six-year term is the proper remedy. (See Meloney, supra, 30 Cal.4th at p. 1151 [where the trial court was unaware of its authority to either impose an enhancement for committing an offense while on bail or to strike that enhancement under section 1385, the case was remanded for the trial court to decide how to exercise its discretion].) Because we have discovered an unauthorized sentence in the course of considering Bates's appeal, we may remand for resentencing even though Bates has not asked for that remedy and even though Bates may end up being required to serve a longer sentence if, on remand, the trial court does not strike the enhancement. (See People v. Benton (1979) 100 Cal.App.3d 92, 102 ["It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant's appeal is pending, the appellate court should remand the case for a proper sentence"]; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589 [" 'Such [an illegal] sentence . . . is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement,' " quoting People v. Serrato (1973) 9 Cal.3d 753, 764].)