P. v. Fay
Filed 3/6/07 P. v. Fay CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. PATRICK NELSON FAY, Defendant and Appellant. | C052518 (Super. Ct. No. CM023271) |
A jury convicted defendant of second degree robbery and found true an allegation that he was personally armed with a deadly weapon during the robbery, purportedly within the meaning of Penal Code section 12022, subdivision (b). Defendant was sentenced to an aggregate prison term of four years and eight months (the middle term of three years for the robbery, a consecutive term of one year for the purported enhancement, and a consecutive term of eight months for a conviction in another proceeding.
On appeal, defendant contends the enhancement imposed for being personally armed with a deadly weapon while committing the robbery must be reversed because there is no such enhancement. The People concede the error.
FACTS
In the early morning on July 7, 2005, two masked men robbed a 7-Eleven store in Oroville. One robber was about six feet tall, heavy set, and armed with a steel gun. The other robber, who was smaller and had what appeared to be a black gun, said [g]ive me the money but did not point his weapon at the clerk. The clerk gave the cash drawer to the robbers, who fled with it. The robbery was captured on a video surveillance tape.
When, during a narcotics investigation, officers searched an apartment occupied by Gerald Eisenmann and defendant Patrick Fay, they discovered a silver .22 caliber revolver, a pellet gun, and clothing similar to that worn by the robbers. The 7-Eleven clerk then identified both weapons as those used in the robbery.
The jury found that defendant, who is smaller than Eisenmann, was the robber who had what appeared to be a black gun (the pellet gun) but did not point it at the clerk.
DISCUSSION
Defendant initially was charged with personally using a firearm while committing second degree robbery. At trial, however, the court granted the prosecutors motion to amend the information by striking the firearm use allegation (Pen. Code, 12022.5, subd. (a)(1)) and alleging in its place a special allegation pursuant to Penal Code Section 12022[, subdivision] (b), that defendant was personally armed with a deadly weapon in the commission of a felony.
As we have noted, the jury convicted defendant of second degree robbery and found that he was personally armed with a deadly weapon during the commission of a felony in violation of Penal Code section 12022[, subdivision ](b). (Further section references are to the Penal Code unless otherwise specified.)
Section 12022, subdivision (b) does not apply to a person who is armed with a deadly weapon while committing robbery. Instead, the statute applies to one who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony . . . . ( 12022.5, subd. (b)(1); italics added.)[1]
Because there is no enhancement for being personally armed with a deadly weapon during the commission of a robbery, the People concede that the purported enhancement in this case must be reversed.
The imposition of a nonexistent enhancement is void and must be vacated, and the appellate court should remand the case for a proper sentence. (People v. Iniguez (2002) 96 Cal.App.4th 75, 80-81; People v. Bean (1989) 213 Cal.App.3d 639, 646.)
Having conceded error, the People ask us to remand the matter for resentencing, at which time the trial court could use the fact that defendant was armed with a deadly weapon as a circumstance in aggravation and impose the upper term of five years for the robbery ( 213), which is more than the four years the court had imposed for the robbery and the purported armed enhancement.
Defendant asks us to simply reverse the nonexistent enhancement and not to remand for resentencing. According to defendant, that is the proper remedy because increasing his sentence on remand would violate double jeopardy and the rule that, as a general principle, a criminal defendant can not [sic] be subjected to a greater punishment after a successful appeal.
Ordinarily, the California Constitutions guarantee against double jeopardy (art. I, [15]) preclude[s] the imposition of a more severe sentence upon retrial [or remand for resentencing following appeal]. (People v. Serrato (1973) 9 Cal.3d 753, 763-764 (hereafter Serrato), disapproved on another issue, People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) However, [t]he rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. (Serrato, supra, 9 Cal.3d at p. 764.)
Defendant asks us to interpret Serrato narrowly, applying the phrase unauthorized sentence only where, in his appellate counsels words, a lawful sentence existed for the particular crime, but for some reason, the court imposed a sentence that the statute dealing with the crime did not allow. But Serrato is not subject to such a narrow interpretation.
For example, in People v. Bean, supra, 213 Cal.App.3d 639, Ronald Bean was charged with burglary and petty theft, having had a prior theft conviction. (Id. at p. 641.) He entered a negotiated plea to the purported crime of attempted petty theft with a prior and was sentenced to state prison. (Ibid.) On appellate review, he claimed the conviction was for a non-crime and, thus, was invalid. (Id. at p. 642.) This court agreed that the Legislature had not made attempted petty theft with a prior conviction a crime (ibid.) but rejected Beans argument that the conviction should be modified to attempted petty theft, a misdemeanor. (Id. at p. 645.) Because the plea was to a nonexistent crime, it was void, a nullity. (Ibid.) The correct remedy was to reverse the judgment and to remand the cause to the trial court with defendant . . . placed in the position he faced prior to any plea bargain or plea. (Id. at p. 646.) That this exposed Bean to more severe punishment than was imposed for his unauthorized conviction was immaterial because when an unauthorized sentence for a nonexistent crime is set aside, there is no bar to the imposition of a prior judgment on remand, even if it is more severe than the original unauthorized judgment. (People v. Bean, supra, 213 Cal.App.3d at p. 646, citing Serrato, supra, 9 Cal.3d at p. 764; see also People v. Brown (1987) 193 Cal.App.3d 957, 961-963.)
Like the situation in People v. Bean, supra, 213 Cal.App.3d 639, because the sentence imposed on the nonexistent enhancement was void, the judgment must be reversed and defendant placed in the position he faced prior to the unlawful imposition of judgment. (Id. at p. 646.) Otherwise, defendant might receive a windfall by avoiding an upper term the trial court might have legally imposed if it was aware that it could not impose a sentence for the purported enhancement.[2]
DISPOSITION
The purported section 12022, subdivision (b) enhancement is reversed, the sentences imposed for the purported enhancement and the robbery conviction are vacated, and the cause is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
SCOTLAND, P.J.
We concur:
ROBIE , J.
BUTZ , J.
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[1] An enhancement for being armed with a deadly weapon, other than a firearm, is found in section 12022.3, subdivision (b). However, it is limited to certain sexual offenses.
[2] At sentencing, the prosecutor asked the trial court to impose the upper term for the robbery because defendant used a gun. The court correctly declined to use the same fact to support both an upper term and an enhancement. ( 1170, subd. (b).) Had the nonexistent enhancement never been alleged and sustained, the court could have used the fact that defendant was armed with a dangerous weapon to impose the upper term. (Cal. Rules of Court, rule 4.421 (a)(2).)
