P. v. Guillen
This is the second appeal by defendant and appellant Roberto Hernandez Guillen (hereafter defendant). In his first appeal, we agreed with his claim that the trial court erred when it failed to instruct the jury on misdemeanor false imprisonment as a lesser included offense to the charged crime of felony false imprisonment alleged in count 6. Therefore, we reversed that conviction[1]and remanded to the trial court with directions either to retry defendant on the felony within 60 days or to reduce the conviction to a misdemeanor and resentence defendant accordingly. The latter occurred. In resentencing defendant, the trial court reimposed the original sentences on the convictions we had affirmed on appeal, and imposed a consecutive sentence of 180 days to be served at any penal institution on the misdemeanor false imprisonment conviction (count 6). As a result of the consecutive sentence, the trial court effectively increased defendants aggregate sentence from eight years, four months to eight years, 10 months.
Defendant challenges his new sentence on two grounds. First, he contends that the sentence violates the prohibition against imposing a longer sentence on a defendant who has successfully appealed his conviction. Second, defendant contends that the upper term sentence the trial court imposed on count 5, defendants conviction for felony child endangerment, violates defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to have all facts decided by a jury as set out in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].
Court agree with defendants first claim, and therefore stay execution of the sentence imposed on count 6. Otherwise, Court affirm.
Comments on P. v. Guillen