Filed 7/3/13 (opn. on rehearing)

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ANTHONY STANISLAUS LAPIERRE,

 Defendant and Appellant.

2d Crim. No. B239304

(Super. Ct. No. CR30388)

(Ventura County)

The California trial court sentences defendant to prison, the sentence 

to run consecutively to a federal sentence that was imposed previously. Thereafter,

appeals in the federal and the state courts result in remands to the respective trial 

courts for resentencing. The sequence of judgments in the federal and state courts 

does not change, but the state appellate court reduces defendant's sentence. Under 

these circumstances, the power of the state trial court to impose a consecutive 

sentence does not change. 

Anthony Stanislaus LaPierre appeals an order denying his motion to 

require the state court to order his sentence to be served concurrently to his federal 

sentence. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

LaPierre committed numerous armed bank robberies in Hawaii and 

California. In April 1992, he suffered his first conviction for these crimes when a 

state court in Hawaii sentenced him to 8 to 20 years in prison. 
2

In May 1992, a federal district court in Hawaii sentenced LaPierre to 

more than 27 years in prison for several other robberies, to be served concurrently 

"with any sentence [LaPierre] is presently serving." LaPierre was then in state 

custody in Hawaii.

In February 1993, the Ventura County trial court sentenced LaPierre 

to 20 years in prison for other robberies, to "run consecutive[ly] to any Federal time, 

and any time imposed in the State of Hawaii." 

Later that year, the Ninth Circuit Court of Appeals vacated the original 

federal judgment and remanded with directions. In 1993, the federal district court 

reinstated the convictions and resentenced LaPierre to more than 22 years in prison, 

again ordering the sentence "to run concurrently with any sentence [La Pierre] is 

presently serving." LaPierre remained in state custody in Hawaii. The district court 

judge ordered that the judgment "reflect the same words as [he had] previously 

given with respect to concurrent as to any sentence which [LaPierre] may now be 

serving."

In 1994, we modified the California judgment and directed the trial 

court to correct sentencing regarding the firearm enhancements. (People v. 

LaPierre (April 29, 2003, B239304) [nonpub. opn.].) The trial court amended the 

abstract of judgment, again ordering that sentence "run consecutive[ly] to any 

Federal time, and any time imposed in the State of Hawaii."

In 1998, Hawaii released LaPierre on parole and he was transferred to 

the United States Bureau of Prisons to serve his federal term. In 2012, LaPierre 

filed a motion to "correct" the California judgment so that his California sentence 

would be served concurrently with his federal sentence. He argued that he should 

have been transferred in 1998 from Hawaii state custody to California state custody, 

where his federal sentence would be served concurrently. He argued that in April 

2012, when his federal sentence concluded, he should have been released and not 

transferred to California state prison to begin his 20-year term. The trial court 

denied the motion. 
3

DISCUSSION

Penal Code section 669 authorizes a trial court to direct that a term run 

consecutively to any prior judgment, including a federal judgment.1 (People v. 

Veasey (1979) 98 Cal.App.3d 779, 787-788.) La Pierre concedes that in its original 

1993 judgment, the state court could order the California term to run consecutively

to the original 1992 federal judgment. 

The federal and California trial courts each resentenced LaPierre after 

appeal, but the sequence of the judgments did not change. The federal court 

resentenced him in 1993, and the California court did so in 1994. Section 669 

authorized the California court, in its 1994 amended abstract, to again direct that the 

California term run consecutively to the prior 1993 federal judgment on remand. 

A federal judgment is "prior" to the state judgment for purposes of 

section 669 if it exists at the time of state resentencing following remand. (People v. 

Lister (1984) 155 Cal.App.3d 132, 134.) The federal court's 1993 judgment existed 

when the state court resentenced LaPierre following remand in 1994. Here, the

authority of sentencing judge's discretion may not be compromised by the 

happenstance of an appeal of a federal conviction that occurred prior to the state 

conviction.

LaPierre argues that in 1994, we did not remand for resentencing, we 

merely modified the judgment, thereby changing the judgment sequence. This 

argument places form over substance. We modified the judgment and directed the 

trial court to "correct the abstract of judgment concerning the section 12022.5 

enhancement to reflect a total of two years and eight months." LaPierre thus 

received a reduced sentence from the trial court as reflected in a corrected abstract 

of judgment. That the correction did not require the court to exercise discretion 

does not change anything for purposes of section 669. The federal court's 1993 

judgment existed when the state trial court pronounced the reduced sentence. 

 

1 All statutory references are to the Penal Code.
4

LaPierre argues that if this is so, he had a right to be present for 

resentencing. (§ 1193; Hays v. Arave (9th Cir. 1992) 977 F.2d 475, 476, overruled 

in part in Rice v. Wood (9th Cir. 1996) 77 F.3d1138, 1144, fn. 8.) But when the trial 

court's correction of an abstract of judgment following modification on appeal 

requires no discretion, the defendant has no right to be present. His "presence 

would be useless." (Snyder v. Massachusetts (1934) 291 U.S. 97, 106-107.) 

There is a limitation to the trial court's authority pursuant to section 

669 on remand. The court "may not impose a greater sentence than could 

potentially have been imposed originally." (People v. Lister, supra, 155 Cal.App.3d 

at p. 134.) This limitation does not apply here. In Lister, the defendant was first 

sentenced in state court. He appealed and, while his appeal was pending, suffered a 

judgment in federal court. On remand for resentencing, the state court could not 

order the term of imprisonment to run consecutively to the new federal judgment 

because that federal judgment did not exist when the state court first imposed a 

sentence. To hold otherwise would improperly "penalize the defendant for pursuing 

a successful appeal." (Id. at p. 135.) 

Here the California court had discretion to impose a consecutive 

sentence in the initial 1993 sentencing proceeding. It did so. On remand for 

resentencing, it did so again, preserving the status quo. It did not impose a greater 

sentence than originally imposed and did not penalize LaPierre for exercising his 

right to appeal. A defendant may not be punished for a successful appeal, as in 

Lister, but by the same token, he may not be rewarded with a windfall. 

The outcome is not affected by the federal court's 1993 order on 

remand that the federal term run concurrently "with any sentence [LaPierre] is 

presently serving." It matters not that the federal court intended in 1993 to refer 

only to the Hawaii state judgment or any other judgment. The federal court's 1993 

judgment was prior to the California court's 1994 subsequent judgment. Section 

669 therefore authorized the California court to order the California term to run 

consecutively to the federal judgment. 
5

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.
6

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Law Offices of Richard G. Novack, Richard G. Novak, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. 

Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy 

Attorney General, for Plaintiff and Respondent.