1

Filed 11/21/ 23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE

,

Plaintiff and Responden t

,

v.

TERRELL TRAMME L

,

Defendant and Appellant. A 1 6 6756

( San Francisco City & County

Super Ct. No s., SCN 232509,

CT20000300 & CT20004019 )

In his first appeal in this matter, d efendant Terrell Trammel

challenged the trial court’s sentencing order, which impos ed a n aggregate 12

-

year prison term for numerous convictions arising out of his violent

relationship with his former girlfriend, M.T. We agreed with Trammel that

the trial court erroneously failed to stay the punishment for two c onvictions

pursuant to Penal Cod e 1 section 654 and remanded the matter for a full

resentencing. ( People v. Trammel ( June 30, 2022, A161381) [nonpub. opn.].) 2

1 All statutory references are to the Penal Code unless otherwise

specified.

2 Since the filing of our first opinion in this matter, it has come to our

attention that there is a discrepancy with respect to the spelling of the

defendant’s last name. While the bulk of the documents refer to the

defendant as “Trammel,” including plea dings filed by his own attorneys,

other documents (such as police reports and the second notice of appeal)

reference him as “Trammell.” For purposes of consistency with our prior2

On remand, the trial court corrected its section 654 errors

, resentenc ing

Trammel to a total prison term of 12 years, four months. In this second

appeal, Trammel argues that his new sentence runs afoul of the prohibition

against double jeopardy set forth in Article I, section 13 of the California

Constitution . We agree and will remand to correct this e rror a s well as an

error with respect to custody credits

.

In remanding the case, however, we reject Trammel ’s request to have

another full resentencing hearing before a different trial judge. As we

discuss further below, t he trial court here understood it was engaged in a full

resentencing, thoughtfully considered the parties’ arguments, and clearly

articulated its reasons for imposing sentence as it did. Given these facts

—

along with the murkiness of the restrictions on re sentencing that exist in this

context

— we see absolutely no showing of vindictiveness in the trial court’s

action s

.

I. FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts with respect to this criminal prosecution are

detailed in ou r prior unpublished opini on in this matter

, and we need not

repeat them here at length . In August 2020, a jury found Trammel guilty of

burglary (count I), making a criminal threat as to M.T. (count II), vandalism

(count V), three counts of domestic violence (counts VII, IX, and XII), and

kidnapping (count XI). The jury found Tramme l not guilty of three charged

assaults by force likely to cause great bodily injury (counts VIII, X, and XIII),

but found him guilty of the lesser included offense of misdemeanor assault

(§ 240) with respect to each charge. ( People v. Trammel

, supra , A 161381 .)

opinion, we will refer to the defendant herein as “Trammel,” but clarify tha t

we are referring to the individual identified by CII No. 11688126.3

Tram mel was sentenc ed to a total of 12 years in state prison in

November 2020. Specifically, the trial court ordered: the upper term of eight

years for the principal count, kidnapping (count XI); a consecutive 16 months

for burglary (count I)

, a consecutive e ight months for making criminal threats

(count II); and a consecutive two years for the June 2017 domestic violence

conviction (count VII), one year for the convictio n , itself, and an additional

year on the attached arming enhancement. The trial court imp osed

concurrent three

- year terms for the remaining domestic violence convictions

(counts IX and XII) and concurrent time

- served sentences for the remaining

misdemeanors (counts V, VIII, X

, and XIII). ( People v. Trammel

, supra

,

A161381.)

On appeal, we concluded that the trial court erred under section 654 by

imposing separate punishment for both domestic violence under count VII

and simple assault under count VIII , both of which related to the same June

2017 domestic violence incident

. W e similarly found that section 654

precluded punishment for both domestic violence under count IX and simple

assault under count X with respect to the domestic violence incident on

October 18, 2019. We remanded the matter for resentencing. ( People v.

Tram mel

, supra , A161381.)

On November 23, 2022 , the trial court conducted a full resentencing in

accordance with our instructions

, commenting that it was “of great

consequence” that the new sentencing law s effective on January 1, 2022,

w ere applicable to Tram mel’s case and discussing the relevant statutory

changes

. The court reviewed the presentence report, a resentencing

memorandum from the prosecutor and a resentencing memorandum from the

defense

, the latter of which included a social worker’s mitigation as sessment.4

The defense requested a sentence of three years, eight months. The

prosecutor urged the court to impose a sentence of 14 years.

T he trial court resentenced Trammel to 12 years and four months in

prison. Specifically, the court again ordered the upper term of eight years for

the principal count, kidnapping (count XI); a consecutive 16 months for

burglary (count I) ; and a consecutive two years for the June 20 17 domestic

violence conviction (count VII), one year for the conviction and an additional

year on the attached arming enhancement. The court stayed the punishment

for making criminal threats (count II (eight months)) and for the

misdemeanors (counts V (1 year), VIII (180 days) , X (180 days) , and XIII (180

days) pursuant to section 654. Finally, rather than imposing concurrent

three

- year terms for the remaining domestic violence convictions (counts IX

and XII), the trial court imposed a consecutive one

- ye ar term on count IX and

a concurrent one

- year term on count XII.

In reaching this sentence, the court indicated it had considered the

mitigation report but determined that no evidence suggested childhood

trauma was related to the commission of the crime s. It further found that

imposition of the lower term would be contrary to the interest s of justice,

noting that Trammel showed no remorse for the crimes. The court

additionally concluded that the middle term was not appropriate given

Trammel’s history o f prior convictions (which the prosecutor established with

certified records of conviction) in aggravation and no factors in mitigation.

When defense counsel commented that the sentence was four months longer

than the court had previously imposed, the cou rt indicated its awareness of

this fact.

Trammel again appealed.5 II. DISCUSSIO N

Trammel argues that imposition of a longer sentence on remand

violated double jeopardy principles which recogniz e s that defendants should

not be required to risk being given greater punishment for successfully

exercising their appellate rights. The Attorney General disagree s, asserting

that, since Trammel’s original sentence was “ unauthorized, ” there was no

limitation on the trial court’s power to impose a greater sentence on remand.

Resolution of this dispute requires analysis of two intersecting lines of

Supreme Court pre cedent. We thus begin by discussing each in turn

.

A. Supreme Court Double Jeopardy Precedent

In the seminal case of People v. Henderson (1963) 60 Cal.2d 482

( Henderson ), the defendant was convicted of first degree murder and

sentenced to life imprisonment. Following reversal of that conviction, he was

again tried and convicted, and the jury fixed the penalty at death. ( Id. at

p. 484. ) The defendant argued that the prohibit ion against double jeopardy

preclude d imposing the death sentence after reversal of the first judgment

sentencing him to life imprisonment. ( Id. at p. 495.) Th e Supreme C ourt

agreed

, h o ld ing that the California Constitution ’ s guarantee against double

jeopardy (art. I, § 13) pr ohibited the imposition of a more severe sentence

upon retrial. ( Henderson , at pp. 496

– 497.) The Court reasoned: 

### “A

defendant ’ s right of appeal from an erroneous judgment is unreasonably

impaired when he is required to risk his life to invoke that right. Since the

state has no interest in preserving erroneous judgments, it has no interest in

foreclosing appeals therefrom by imposing unreasonable conditio ns on the

right to appeal.” ( Id. at p. 497.)

Shortly thereafter, the Supreme Court reaffirmed Henderson ’s

reasoning in People v. Ali ( 1967 ) 66 Cal.2d 277 ( Ali ). There, the defendant6

had been sentenced to concurrent terms for three credit card offenses bu t was

subsequently retried . ( Id. at pp. 278, 281 .) At his second sentencing, he was

sentenced to consecutive terms for the same offenses that had previously

been ordered to run concurrently. ( Id. at pp. 281

– 282. ) Applying Henderson

,

the Court opined: “ Where a defendant has been sentenced to concurrent

terms and then upon a retrial is sentenced to consecutive terms for the same

offenses, his [or her] punishment has been increased by indirect means. The

reasoning which prevents an increase by direct means would seem to be

applicable in such a situation, as a defendant should not be required to risk

being given greater punishment on a retrial for the privilege of exercising his

[or her] right to appeal. ” ( Id. at p. 281.)

In People v. Collins (1 978) 21 Cal.3d 208 ( Collins ) , the defendant was

initially charged with numerous robbery and sexual offenses, but pleaded

guilty to one count of oral copulation, after which the remaining counts and

various enhancement allegations were dismissed. The court then suspended

criminal proceedings, found the defendant to be a mentally disordered sex

offender, and committed him to a state hospital for an indefinite period. ( Id.

at p. 211.) While the defendant was institutionalized, former section 288a

(the oral copulation statute) was repealed and reenacted in a new section

with the same number. Thereafter, it was determined that the defendant

was no longer a danger to others, and criminal proceedings were reinstated.

Rejecting the defendant’s argument that it had no jurisdiction to sentence

him because of the repeal of the underlying statute, the trial court sentenced

the defendant to state prison for one to 15 years, with credit for the time he

had served at the state hospital . ( Id. a t pp. 211

– 212.)

The Supreme Court reversed the conviction, concluding that the trial

court erred in imposing sentence because the conduct which the defend a nt7

admitted in pleading guilty was no longer punishable at the time of

sentencing. ( Collins

, supra , 21 Cal.3d at p. 212.) It then considered the effect

of its reversal on the dismissed counts. ( Id. at p. 214.) Noting that “[c] ritical

to plea bargaining i s the concept of reciprocal benefits

, ” t he Court concluded

that, in order for the prosecution to get the benefit of its bargain, the

dismissed counts must be restored. However, since the defendant had not

repudiated the plea bargain by attacking his guilty plea, he was also entitled

to the benefit of his bargain. ( Id. at pp. 214

– 216.) To craft an appropriate

remedy, t he Court t urned to “a line of cases based on principles of double

jeopardy” in which its concerns were “ specifically to preclude vindi ctiveness

and more generally to avoid penalizing a defendant for pursuing a successful

appeal.” ( Ibid .) Citing Henderson for the “long recognized” principal that

“ the state has no interest in preserving erroneous judgments,” the Supreme

Court concluded that the rights of the prosecution and the defendant could

best be protected by permitting the state to revive one or more of the

dismissed counts but limiting the de fendant ’ s potential sentence to not more

than three years in state prison, the comparable term of punishment that

had been set by the determinate sentencing law (D S L) . ( Collins , at p. 216.)

In People v. Hanson (2000) 23 Cal.4th 355 ( Hanson ), the Supreme

Court considered whether the double jeopardy principles set forth in

Henderson and its progeny should apply to an increase in a defendant’s

restitution fine upon resentencing. ( Hanson

, at p. 357. ) The Court concluded

that such fines constitute punishment and could find “no principled basis for

excluding them from the rationale of Henderson .” ( Hanson

, at p. 357.) In

making this determination, the Court expressly rejected the appellate court’s

con clusion that it could find no cogent reason s in this context to construe the

state double jeopardy prohibition any more broadly than its federal8

counterpart, which generally “ ‘i mposes no restrictions upon the length of a

sentence imposed upon reconviction .’ ” ( Id. at p. 358, quoting North Carolina

v. Pearce (1969) 395 U.S. 711, 719 ( Pearce ) .) The cogent reason, the Supreme

Court reaffirmed, was Henderson because its “ ‘ rule . . . protecting defendants

from receiving a greater sentence if reconvicted after a successful appeal

[citations] is one instance where [ the Court has] interpreted the state double

jeopardy clause more broadly than the federal clause. ’ ” ( Hanson , a t p. 364 ;

see also id. at p. 365 [“ ‘ Although presented with both the opportunity to do so

and subsequent clarification of federal constitutional law, the court has never

retreated from the rationale or holding of Henderson .’ ”]. ) Thus, “ under

California ’ s Constitution the proper focus with respect to resentencing is

whether increased punishment operates to penalize the defendant for

exercising the right of appeal. ” ( Id. at p. 365.)

Indeed, the Supreme Court found the Henderson rule so fundamental

that it further opined: “[E] ven if we were to find our state double jeopardy

clause does not compel the holding in Henderson , we would not hesitate to

enforce the same rule on alternate state due process grounds. ” ( Hanson

,

supra , 23 Cal.4th at p. 366.) The Court noted that, in Pearce

, the United

States Supreme Court had “ attempted to provide a modicum of protection

against improper resentencing by cautioning that ‘ [d]ue process of law

. . .

requires that vindictiveness against a defendant for having successfully

attacked his first conviction must play no part in the senten ce he receives

after a new trial. ’ ” ( Hanson

, at p. 366.) In our high court’s v iew, however,

“ vindictiveness is only one of the evils the rule in Henderson forestalls. More

basically, it is the chilling effect on the right to appeal generated by the ris k

of a more severe punishment that lies at its core. [Citations.] Moreover, as

the [United States] Supreme Court itself acknowledged: ‘ The existence of a9

retaliatory motivation would, of course, be extremely difficult to prove in any

individual case. ’ ” ( Hanson

, at p. 366 .) In contrast, the Court cited with

approval an Alaska Supreme Court opinion which “[t]ranslat[ed] the

rationale of Henderson into due process terms.” 3 ( Hanson

, at p. 366.)

More recently , in a case involving a different Henderson, the Supreme

Court determined that the trial court was unaware at sentencing under the

three strikes law that it had concurrent sentencing discretion when

sentencing on qualifying offenses committed on the same o ccasion or arising

out of the same set of operative facts. It therefore remanded for a full

resentencing. ( People v. Henderson (2022) 14 Cal. 5 th 34, 56.) In doing so, it

confirmed that “ because ‘ “ a defendant should not be required to risk being

given g reater punishment

. . . for the privilege of exercising his right to

appeal” ’ [citing Hanson and Ali ]

, the court on remand may not impose an

aggregate sentence greater than the one defendant initially received. ”

( People v. Henderson

, at p. 56.)

B. The Serrato Exception to Double Jeopardy

In 1973, the Supreme Court discuss ed an exception to its double

jeopardy precedent in People v. Serrato (1973) 9 Cal.3d 753 ( Serrato )

,

3 As the Alaska Supreme Court explained: “ ‘[I] f a more severe

sentence may be imposed after retrial for any reason, there will always be a

definite apprehension on the part of the ac cused that a heavier sentence may

be imposed. . . . Such deterrence violates the due process clause of the Alaska

Constitution. The fundamental standard of procedural fairness, which is the

basic due process right claimed in this case, forbids placing a l imitation on

the defendant ’ s right to a fair trial by requiring a defendant to barter with

freedom for the opportunity of exercising it. [Citation.] The state has no

valid interest in imposing unreasonable conditions on [a defendant ’ s]

legitimate exercis e of his [or her] due process right. ’ ” ( Hanson

, supra

, 23

Cal.4t h at pp. 366

– 367, quoting Shagloak v. State (Alaska 1979) 597 P.2d

142, 145.)10

disapproved on another ground as stated in People v. Fosselman (1983) 33

Cal.3 d 572, 583, fn.1. In Serrato , the two defendants had been convicted by a

jury of felony possession of a fire bomb . ( Ser r ato

, at p. 756.) The defendants

moved for a new trial and the trial court purported to modify their

convictions to misdemeanor disturbi ng the peace. It th en placed them on

probation for two years on the condition that each pay a fine of $125. ( Id. at

pp. 756

– 757 & fn. 2.) The defendants appealed from the order granting

probation. ( Id. at p. 756.)

Noting that a trial court considering a motion for a new trial is

statutorily authorized to “ modify the verdict to a lesser degree of the crime

found by the jury, or to a lesser crime included therein” ( Serrato

, supra , 9

Cal.3d at p. 757 & fn. 3 ), our high court concluded that the trial court had

exceeded its statutory authority and violated due process in the case because

disturbing the peace was not a lesser included offense of possession of a

firebomb. ( Id. at p. 758.) The Court then turned to the appropriate

procedure on reman d. The defendants argued that they were entitled to

dismissal or a judgment of acquittal on double jeopardy grounds because the

court’s action in modifying the verdict was an implied acquittal. ( Id. at p.

759.)

In rejecting this claim, the Court began by reciting the “familiar

principle” that a defendant who has successfully moved to have a conviction

set aside “impliedly waives an y objection to being retried” on the original

charge. ( Serrato

, supra , 9 Cal.3d at pp. 759

– 760.) The Court also

acknowled ged another well

- established rule: “[W]here a trier of the facts

finds the defendant guilty of a lesser degree of the offense charged, or of a

lesser included offense, there is an implied acquittal of the greater offense.”

( Id. at p. 760.) And it confir med that “[i]f in lieu of granting a new trial the11

court decides to modify the verdict to a lesser included offense, and this

modified verdict ultimately ripens into a final judgment of conviction, the

conviction bars further prosecution of either the offe nse charged or the lesser

offense.” ( Id. at p. 761.)

The Supreme Court determined, however, that if a trial court reviewing

a new trial motion concludes that a verdict should be modified to an

uncharged offense, it should grant a new trial, not an acquittal. ( Serrato

,

supra , 9 Cal.3d at p. 7 62 .) The Court continued: “ [L] ogic does not reveal any

fact

- finding which would support a modification to an offense neither charged

nor proved. What appears is t hat the trial court desired to exercise an

unauthorized leniency . The fact that the court imposed probation and a fine

implies the court found that the defendants were guilty of some offense. But

if they are not being punished for the offense found by the jury, we have no

clue to any other basis of punishment. ” ( Id. at pp. 762

- 763 , italics added .)

The Court also rejected the defendant’s alternate contention that they

were at least protected from more severe punishment under Henderson and

its progeny. ( Serrato

, supra , 9 Cal.3d at p. 763.) Specifically, it reasoned

that, “[i]n the Henderson case, as in each of the cited cases which followed it,

the sentence imposed after the first trial was a lawful one, within the limits

of the discretion conferred by statute for the offense of which the defendant

had been convicted. The judgments pronounced at the first trials were

reversed because of errors having nothing to do with the sentences.” ( Id. at

p. 764.) In contrast, when “a trial court pronounces an unauthorized

sentence,” the “rule is otherwise. ( Ibid. ) “ 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. ” ( Ibid. ) The Court gave three examples, all of which12

involved unauthorized sentences which were impermissibly lenient. ( See In

re Sandel (1966) 64 Cal.2d 412

, 418 [unauthorized concu rrent sentence for

escape judicially modified to consecutive sentence] ; People v. Massengale

(1970) 10 Cal.App.3d 689, 693 ( Massengale ) [ county jail sentences

unauthorized where sentencing statute provided for one to ten years in state

prison ] 4 ; People v. Orrante ( 1962 ) 201 Cal.App.2d 553, 558, 566

– 567

[placement on probation after murder conviction in excess of trial court’s

jurisdiction ; remanded to impose lawful sentence]

, superseded by statute as

stated in People v. Bailey (1996) 45 Cal.App.4t h 926, 929

– 930 .) In sum, “ a

defendant who successfully attacks a judgment which is in excess of the

court ’ s jurisdiction is not necessarily entitled to claim the protection of that

invalid judgment as an absolute limitation upon what the court may do

ther eafter.” ( Serrato , at p. 765 , italics added .)

Although the Supreme Court noted that, under the circumstances, it

would normally remand the case to the superior court for a new hearing on

the new trial motion, the Court went on to determine that the superior court

had violated the defendants ’ due process rights at trial by instructing the jury

in a way that effectively reversed the burden of proof. ( Serrato

, supra , 9

Cal.3d at p p. 76 5

– 767.) It therefore ordered a new trial. ( Id. at p. 765.)

Justice Mosk concurred in part and dissented in part, arguing that whatever

“the rationale of the majority opinion, its melancholy result [was] to penalize

4 The Massengale court distinguished its situation from that involved in

Henderson , stating that “ such a correction of the judgment is not a penalty

imposed upon appellants because of their appeals. ” ( Massengale

, supra

, 10

Cal.App.3d at p. 693 .) Rather the correction in the judgments in that case

“ would be required whenever the mistake was discovered, regardless of

whether or not defendants had appealed. ” ( Ibid. )13

the se defendants for a successful appeal” in violation of the prohibition

against double jeopardy. ( Id. at pp. 767

– 768 (conc. & dis. opn. of Mosk, J.).)

In the 50 years since the Serrato decision, our high court has returned

to the case

— in ways relevant to the instant appeal

— only a handful of times.

In In re Ricky H. (1981) 30 Cal.3d 176 ( Ricky H. ), superseded by statute on

other grounds as stated in In re Michael D. (1987) 188 Cal.App.3 d 1392

, 1396,

the Supreme Court was considering a minor’s challenge to his Youth

Authority commitment when its own review of the record disclosed “several

deficiencies” in the dispositional order that had not been raised by the

parties. 5 ( Ricky H. , at pp . 182, 190

– 191.) For example, it noted that the

superior court had imposed a three

- year median term for aggravated assault

instead of the mandatory four

- year upper term. ( Id. at p. 191.) Citing

Serrato , the Court stated that “[a] uthority exists for an a ppellate court to

correct a sentence that is not authorized by law whenever the error comes to

the attention of the court, even if the correction creates the possibility of a

more severe punishment.” ( Ricky H. , at p. 191.) However, given other errors

in the dispositional order, the Court concluded that a remand with directions

was more appropriate than appellate correction . ( Id. at pp. 191

– 192.)

Thereafter, in People v. Karaman (1992) 4 Cal.4th 335 ( Karaman ) , the

Supreme Court cited Serrato and Ricky H. in dicta for the proposition that

“ where the court is required to impose a certain minimum term but imposes a

lesser term instead, the unauthorized sentence is considered invalid or

‘ unlawful ’ and may be increased even after execution of the sentence has

begun. ” (

Karaman , at p. 349 , fn. 15 .)

5 Two sustained petitions were before the superior court at the

dispositional hearing, involving four counts of burglary, one count of assault

by means of force likely to produce great bodily injury, and one count of

escape from juvenile hall. ( Ricky H.

, supra , 30 Cal.3d at p. 180.)14

Next, i n People v. Dotson (1997) 16 Cal.4th 547 ( Dotson ) , the Court

considered whether or not a sentence under the t hree s trikes l aw for a

serious felo ny should include a separate determinate term for enhancements

under section 667, subdivision (a). ( Dotson , at p. 550.) In the trial court, the

prosecutor had requested an indeterminate term of 26 years to life and did

not argue that the enhancements should be imposed as a separate

determinate term

. The Supreme Court nevertheless reached the issue via a

petition for review . ( Id. at p p. 553

– 55 4 & fn. 6.) Citing Serrato

, Ricky H.

,

and People v. Scott (1994) 9 Cal.4th 331 ( Scott ) , the Cour t opined : “ A claim

that a sentence is unauthorized

. . . may be raised for the first time on

appeal [] and is subject to judicial correction whenever the error comes to the

attention of the reviewing court. ” ( Dotson

, at p. 55 4 , fn. 6; see also Scott

, at

p. 354 [ discussing exception to waiver rule for unauthorized sentences and

noting that “a sentence is g enerally ‘unauthorized’ where it could not lawfully

be imposed under any circumstance in the particular case”].) The Court went

on to conclude that a consecutive 20

- year determinate term should have been

imposed in the case and remanded to the trial court for appropriate

resentencing. ( Dotson , at pp. 557

– 560.)

In Ha nson

, supra , 2 3 Cal.4th 355

, discussed above, the Supreme Court

cited Serrato in a footnote contrasting the Henderson rule with the situation

in which a defendant seeks to withdraw a guil ty plea or repudiate a plea

bargain. ( Hanson , at p. 360 & fn. 2.) In Se r rato, the Supreme Court had

described its prior opinion in In re Sutherland (1972) 6 Cal.3d 666 . There

,

the defendant pleaded guilty to one count, the prosecutor moved to dismiss

the four remaining counts, and his motion was granted. The Supreme Court

recognized that, by granting relief it was in effect permitting the defendant to

withdraw his guilty plea. Under such ci rcumstances, it concluded that “ ‘ the15

ends of justice require [d] that the status quo ante be restored by reviving the

four dismissed counts. ’ ” ( Serrato, supra

, 9 Cal.3d at p. 765.)

Finally, in People v. Carbajal (2013) 56 Cal.4th 521 ( Carbajal ), the

defendant was charged with sexually molesting two victims. A jury convicted

the defendant of some counts involving one victim while deadlocking on all

counts involving the other victim. Nevertheless, it initially re turned a true

finding on a multiple victim special allegation

. With some coaching from the

trial judge, the jury next came back with a not true finding with respect to

the allegation and then later stated they were deadlocked on it. A second

jury subsequently convicted the defendant of counts involving the other

victim and found true the multiple victim allegation. ( Carbajal , at p. 525.)

The question before the Supreme Court was whether retrial on the multiple

victim allegation wa s barred by double jeopardy. ( Ibid .) The Court concluded

it was not, reasoning: “ Because the [first] jury could not have returned any

valid verdict on the multiple victim allegation, double jeopardy did not bar

retrial on that allegation. (Cf. People v. Serrato (1973) 9 Cal.3d 753, 764

[when sentence imposed is not just erroneous but entirely unauthorized, state

constitutional double jeopardy clause does not prohibit subsequent imposition

of more severe sentence].) ” ( Carbajal

, at p. 535.)

C. Appellate Court Application s of Serrato Exception

Post

- Serrato , appellate courts have handled unauthorized sentences in

various ways

. For example, in 1984 our colleagues in Division Two of this

District addressed a situation where a defendant had been se ntenced

consecutively for both rape (six years) and kidnapping for the purpose of rape

(five years) in violation of section 654. ( People v. Burns (1984) 158

Cal.App.3d 1178, 1181 ( Burns ) .) In considering the appropriate remedy for

this error, the court n oted that a defendant’s aggregate prison term under the16

determinate sentencing law ( D S L ) “ ‘ cannot be viewed as a series of separate

independent terms, but rather must be viewed as one prison term made up of

interdependent components. The invalidity of some of those components

necessarily infects the entire sentence

. . . . In making its sentencing choices

in the first instance the trial court undoubtedly considered the overall prison

term to be imposed.’ ” ( Id. at 1183.) The trial co urt was therefore allowed to

reconsider its entire sentencing scheme on remand

. “ However, in order to

‘ preclude vindictiveness and more generally to avoid penalizing a defendant

for pursuing a successful appeal ’ [citation]

, ” the appellate court concluded,

citing Henderson

, that Burns could not be “sentenced on re mand to a term in

excess of his original sentence. ” ( Burns

, at p. 1184.)

Several years later, the Fifth District considered the propriety of

resentencing a sexual o ffender to 50 years in prison on remand from an

unauthorized sentence of 37 years. ( People v. Price (1986) 184 Cal.App.3d

1405, 1407 ( Price ).) Given the exemplar cases discussed in Serrato

, and the

Serrato Court’s analogizing of those cases to the situation where a negotiated

plea is set aside (which requires restoration of any dismissed counts)

, the

appellate court in Price concluded that the holding in Ser rato “ vindicate s the

People ’ s right to imposition of a prop er sentence.” ( Price

, at p. 1409 ; see also

Serrato

, supra

, 9 Cal.3d at pp. 7 64

– 7 65 .) It th erefore concluded that, i n order

to determine if the sentencing court on remand properly could impose a

harsher sentence, it was required to characterize the sentencing errors which

occurred at the first sentencing. Some identified sentencing errors “could not

result in a greater overall term on the sentencing” and thus “did not produce

unauthorized sentences. ” ( Price

, at p. 1409.) In contrast, the appellate court

found two unauthorized errors in the initial sentencing : the failure to impose

a consecutive sentence on one robbery count and the failure to impose17

weapons enhancements on three counts due to a misunderstan ding regarding

the application of section 654

. ( Price

, at p p

. 1409

, 1411

– 1412 [“ Where a court

mistakenly stays punishment under section 654, the stay operates to defeat

the otherwise mandated sentence which the court must impose.”]. ) Turning

to the propr iety of the resentencing, the Price court concluded that the

sentencing court had fixed the unauthorized sentencing e rrors and that the

resulting increases in punishment were “condoned under the Serrato rule

. ”

( Price

, at p. 1412 .) As for the sentencing c hoices that were no t unauthorized

but “ were defectively supported in the first appeal, ” the court found the

sentences on remand “to be no harsher than before” and therefor e

appropriate. ( Ibid. )

The court, however, did find error in the trial court’s treatment of the

two robbery conviction s on remand, reasoning as follows: “ The Serrato rule

protects the People ’ s right to mandated, lawful sentences. The limitations of

the rule ‘ rebut ’ any appeara nce of vindictiveness. If an increase in penalty

has no nexus to the original illegality in the sentence, the protection against

vindictiveness is not applicable. The general rule applies that in California a

harsher penalty may not be imposed after a su ccessful appeal. ” ( Price

, supra

,

184 Cal.App.3d at p. 1413.) The defendant in Price had originally been

sentenced to concurrent middle term s on each of two robbery count s and that

“ sentence was neither attacked on appeal, nor criticized ” in the court’s prior

opinion in the matter

. On remand, the court imposed the upper term on one

count and ran the second count consecutively. The court concluded: “ These

three additional years (the difference between the three

- year midterm to a

five

- year u pper term (two years) and the addition of one

- third of the midterm

(one year)) were not corrections of ‘ illegalities ’ in the original sentence.

‘ Illegalities ’ requiring re sentencing permit the imposition of a harsher18

punishment. Those portions of the sentence were unaffected by ‘ illegality ’

and cannot be increased in punishment. ” ( Ibid. ) The Price court determined

that remand for resentencing was unnecessary because there was no

reasonable likelihood that on remand the court wou ld impose the lower term

on the principal robbery conviction. ( Ibid. ) It therefore ordered the principal

robbery term reduced to three years and the second robbery sentence to be

run concurrently, reducing the defendant’s total term from 50 to 47 years.

( Ibid. )

In People v. Hill ( 1986 ) 185 Cal.App.3d 831 ( Hill ), the defendant

pleaded guilty to four counts of child molestation (two counts with respect to

each of the two victims) and was initially sentenced to an aggregate term of

16 years

— two consecutive upper terms of eight years and two concurrent

terms of six years. ( Id. at p. 833.) After being notified by the Department of

Corrections that the sentence was erroneous, the court resentenced the

defendant to eight years on the principal count and consecutive two

- year

terms ( one

- third of the midterm ) on each of the three remaining counts

, for a

total of 14 years. ( Ibid. ) On appeal, the defendant argued that the trial court

should have modified the erroneous portion only (the second eight

- year term),

and that the court was without authority to resentence on the two counts

that were initially run concurrently. ( Ibid. ) T he Second District disagreed.

Specifically, the Hill court reasoned: “ When a case is remanded for

resentencing by an appellate court, the trial court is entitled to consider the

entire sentencing scheme. Not limited to merely striking illegal portions, the

trial court may reconsider all sentencing choices. [Citations.] This rule is

justified because an aggregate prison term is not a series of separate

independent terms, but one term made up of interdependent components.

The invalidity of one component infects the entire scheme.” ( Hill

, supra

, 18519

Cal.App.3d at p. 834.) Thus, “[t] he trial court is entitled to rethink the entire

sentence to achieve its original and presumably unchanged goal.” ( Ibid. ) In

reaching this conclusion, the Hill court found Serrato

, Ricky H ., and Ali

inapplicable because the defendant’s aggregate sentence was not increased

upon resentencing. ( Hill at p. 836.) It concluded that the defendant’s “ initial

sentence was illegal and therefore void. Upon recall the trial court had the

jurisdiction to impose a sentence which it could have imposed at the time the

original sentence was given.” ( Ibid. )

Division Two of this District revisited Henderson through the lens of

Serrato in 198 7

. ( See People v. Brown (1987) 193 Cal.App.3d 957 ( Brown ).)

In Brown

, the defendant had been convicted of two count s of attempted grand

theft from a person and initially sentenced to 46 months in state prison. On

appeal, the conviction was affirmed but the appellate court concluded that

the 46

- month sentence was improper in that it exceeded the double the base

term limitation in the D S L. The matter was remanded for resentencing after

which the defendant was sen tenced to a 48

- month term. The defendant

again appealed, contending that the imposition of a longer sentence on

remand impermissibly penalized him for his successful appeal and violated

the prohibition against double jeopardy. ( Id. at p. 960.) The appellate court

disagreed.

After noting the “ general rule ” that “a greater sentence may not be

imposed upon remand after an appeal,” the court considered the Serrato

exception which provides that “an unauthorized 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.’ ” ( Brown

, supra

, 193 Cal.App.3d at p. 962.) The court read

Serrato as “ set[ting] up a distinction between resentencing upon retrial20

necessitated by an error not involving the sentence and resentencing

necessitated by the illegality of the original sentence, allowing imposition of a

greater sentence only in the latter situation.” ( Brown , at p. 962.) While the

court was critical of Serrato , it recognized that it was bound to follow it.

( Brown , at pp. 961

– 962.) Deeming the initial sentence unauthorized because

it exceeded a statutory limitation, the court concluded it was not error to

impose a harsher sentence on remand. ( Id. at p. 962.)

In People v. Mustafaa (1994) 22 Cal.App.4th 1305 ( Mustafaa ), the

Fourth District considered the validity of the defendant’s sentence of 14

years, four months after he pleaded guilty to three cou nts of robbery while

personally armed with a firearm and three count s of possession of a firearm

by a felon. He also admitted suffering three prior felony convictions. ( Id. at

p. 1309.) The appellate court concluded that the trial court erred in imposin g

consecutive terms for two gun

- use enhancements, while imposing concurrent

terms for the robbery convictions in the same counts. ( Ibid. ) Since

“ fashioning a sentence in a manner which is unauthorized by law exceeds the

jurisdiction of the court

, ” the defendant could raise th e issue on appeal even

though no objection was made in the trial court. ( Id. at p. 1311.) In

discussing the proper procedure on remand, the court rejected the argument

that the Serrato exception applied, reasoning: “[T]he rule ag ainst double

jeopardy applies because the court imposed a legal aggregate sentence, only

fashioning it in an unauthorized manner. The court’s error in separating the

convictions from their attendant enhancements, though unauthorized by law,

does not make the total sentence illegal. On remand the court may not

impose a total sentence more severe than the sentence originally imposed.”

( Mustafaa , at pp. 1311

– 1312.)21

In People v. Craig (1998) 66 Cal.App.4th 1444 ( Craig ), Division Four of

this District found no double jeopardy issue where the defendant

— who ha d

successfully appealed from a prior conviction

— was sentenced after retrial to

a greater term for the offense, but the aggregate term (which included

enhancements) d id not exceed that imposed at his initial sentencing. ( Id. at

pp. 1446, 1448 .) At the initial sentencing, the defendant was sentenced to the

mitigated term of two years for burglary along with five years for each of five

prior serious felonies, for a tot al of 27 years. On retrial, only three prior

felonies were proved, and the defendant was sentenced to the midterm of four

years on the burglary plus 15 years for the three enhancements, for a total of

19 years. ( Id. at p. 1446 .) The defendant contended in a second appeal that

it was impermissible under the due process clause of our federal Constitution

and under the double jeopardy provisions of our state Constitution for the

trial court at the second sentencing to impose four years for the bur glary

when at the initial sentencing it had imposed only two years for that offense.

( Id. at p. 1447.) The appellate court noted that “one of the consistent

concerns of our state courts in looking at double jeopardy issues in the

context of a sentence im posed after a successful appeal has been the related

due process concern of whether an increased punishment reflects a vindictive

retaliation for defendant ’ s having taken a successful appeal.” ( Ibid .) It thus

considered the defendant’s due process challe nge within the double jeopardy

framework. ( Ibid. )

After a survey of relevant precedent, the court concluded that, under

double jeopardy principles, a defendant may not upon reconviction be

subjected to an aggregate sentence greater than that imposed at the first trial.

Since the defendant’s sentence had been reduced from 27 years to 19 years,

no double jeopardy issue was found. ( Craig

, supra , 66 Cal.App.4th at22

pp. 1447

– 1448.) In making this determination, the court distin guished

Price

— which the defendant argued supported his contention that his

sentence should be viewed as a series of components for double jeopardy

purposes

— because Price held that it was impermissible to increase on

remand a robbery term that had neither b een attacked on appeal nor

criticized in its earlier opinion as unlawful. In the court’s view, Price was

inapplicable because the case as a whole fell within the Serrato exception for

unauthorized or unlawful sentences. 6 ( Craig

, at p. 1450 ; see also People v.

Burbine (2003) 106 Cal.App.4th 1250 [citing Craig in holding that a

defendant can receive the same aggregate prison term upon resentencing for

a multi

- victim felon y conviction even where one count was reversed on

appeal; any sentence permitted under the applicable statutes and rules may

be imposed on remand, subject only to the limitation that the original

aggregate prison term could not be increased] .)

A final example is found in People v. Torres (2008) 163 Cal.App.4th

14 20 ( Torres ) where the defendant was convicted of one count of attempting

to dissuade a witness and one count of criminal threats, both with an

attached gang enhancement. At sentencing

, the court struck the gang

enhancements

, imposed the aggravated term of seven years on the criminal

threat count, and imposed but stayed the mid

- term on the other coun t

. ( Id.

6 Specifically, the Craig court asserted: “ Price is an example of the

exception to the general rule of Henderson that an unlawful or unauthorized

sentence may be increased without offending double jeopardy. The Price

court, however, carefully tailored that exception to the facts before it,

according defendan t the benefit of double jeopardy protection for the portions

of his sentence which were not unlawful or unauthorized. Accordingly, Price

is not authority for the proposition that an aggregate sentence which does not

offend Henderson must be broken into it s components each one of which

carries on resentencing the upper limit of that term which was originally

imposed. ( Craig , at p. 1450.)23

at p p. 1421

, 1427 .) More than a year later, the Department of Corrections

sent a letter to the trial court informing it that the sentencing triad for the

criminal threats count was 16 months, two years, or three years. ( Id. at

p. 1427.) Thus, the court’s seven

- year sentence was unauthorized. At the

resentencing, the trial court declined to stay the gang allegations. It

sentenced the defendant to an indeterminate term of seven years to life on

the criminal threats count. The court imposed and stayed a seven

- year term

with respect to the other count. ( Id. at p. 1428.)

The Fifth District reviewed double jeopardy cases as well as cases

involving the Serrato exception and concluded: “ In all of the .

. . cases, the

defendant either received a sentence equal or lesser than his original

sentence [] or received a greater sentence only when the court ’ s sentence

demonstrated legally unauthorized leniency that resulted in an aggregate

sentence that fell below that authorized by law.” ( Torres

, supra , 163

Cal.App.4th at p. 1432.) It concluded that its c ase was similar to Mustafaa,

explaining: “ ‘ In Mustafaa ’ s case the rule against double jeopardy applie[d]

because the court imposed a legal aggregate sentence, only fashioning it in an

unauthorized manner. The court’s error in separating the convictions from

their attendant enhancements, though unauthorized by law, [did] not make

the total sentence illegal. On remand the court [could] not impose a total

sentence more severe than the sentence originally imposed. ’ ” ( Torres , at

p. 1432.) The Torres court concluded that, since the aggregate sentence of

seven years imposed on defendant at the original sentencing hearing in that

case could have been lawfully achieved, p rinciples of double jeopardy required

a remand at which the trial court could not impose a total sentence greater

than seven years in prison. ( Id. at pp. 1432

– 1433.)24

D. The Serrato Exception Does Not Appl y

A s stated above, Trammel and the Attorney General disagree as to

whether the Serrato exception applies in this case, authorizing a harsher

sentence on remand. While we conclude that Trammel largely has the better

argument on this record

, our analysis of the question took longer and was

more nuanced tha n we originally anticipated. Having discovered the lack of

consistency among appellate courts analyzing these issues as set forth above

,

we offer our own interpretation of how Serrato shoul d be applied at

resentencing

.

Preliminarily, we would like to dispel some confusion that has arisen in

this and other cases by use of the term “unauthorized sentence. ” (See

, e.g.,

People v. King (2022) 77 Cal.App.5th 629 [appearing to misapprehend the

va rious attributes of an unauthorized sentence and limiting it to a waiver

concept].) In Scott

, supra

, 9 Cal.4th 331, our Supreme Court discussed

generally “ the venerable notion that claims involving ‘ unauthorized, ’ ‘ void, ’ or

‘ excessive ’ sentences, and sentences entered in ‘excess of jurisdiction,’ can be

raised at any time.” ( Id. at p. 354.) In doing so, it held that , for waiver

purposes, “a sentence is generally ‘unauthorized’ where it could not lawfully

be imposed under any circumsta nce in the particular case. Appellate courts

are willing to intervene in the first instance because such error is ‘clear and

correctable’ independent of any factual issues presented by the record at

sentencing.” ( Ibid. ) As an example, the Scott Court in dicated it is “well

settled .

. . that the court acts in ‘excess of its jurisdiction’ and imposes an

‘ unauthorized ’ sentence when it erroneously stays or fails to stay execution of

a sentence under section 654. ” ( Scott , at p. 354, fn. 17.) Scott , however, is a

waiver case. It has nothing to do with whether a sentence is unauthorized for

purposes of the Serrato excep tion. As we discuss further below, while the two25

concepts may overlap in certain case s

, both the analyses and the

consequences under Scott and Serrato are distinct.

Next, we join our Division Two colleagues in finding aspects of Serrato

troubling

. For e xample, the distinction between sentencing illegalities and

other errors seems dubious when viewed in the context of our double jeopardy

precedent : “[A] defendant is penalized as much for bringing a successful

appeal if he or she is left subject to imposi tion of a greater sentence when the

basis of the appeal is sentencing error as when the basis is error relating to

the conviction.” ( Brown

, supra

, 193 Cal.App.3d at p. 961.) In addition, as our

survey of the caselaw makes clear, it is not always easy to distinguish illegal

sentences for Serrato purposes from sentences that are erroneous for some

other reason and/ or determine how mixed sentences should be treated. (See

Brown , at pp. 961

– 962 [citing cases]; see, e.g., Craig

, supra 66 Cal.App.4th

1444 ; Mustafaa

, supra

, 22 Cal.App.4th 1305 ; Hill

, supra

, 185 Cal.App.3d 831 ;

Price

, supra

, 184 Cal.App. 3d 1405 .) Finally, “ the Serrato distinction leads to

an anomalous result in the context of appeals, as a defendant is encouraged

to appeal an erroneous but au thorized sentence and penalized for appealing

an outright illegal one. This result is contrary to the established principle

that ‘ [since] the state has no interest in preserving erroneous judgments, it

has no interest in foreclosing appeals therefrom by i mposing unreasonable

conditions on the right to appeal. ’ ” ( Brown

, at p. 962, quoting Henderson

,

supra

, 60 Cal.2 d at p. 497 & citing Serrato

, supra

, 9 Cal.3d at p. 767 [Mosk,

J., conc

. and dis

. opn.].) Nevertheless, since the Supreme Court has not

retracted Serrato in the last 50 years, we are bound to follow it. ( Auto Equity

Sales

, Inc. v. Superi or Court (1962) 57 Cal.2d 450, 455. ) We therefore turn to

the question of how it should be applied in this case.26

In our prior opinion, we found two instances where the trial court

erroneously failed to stay sentences under section 654

, and we also suggested

that Trammel could raise any additional section 654 challenges upon remand

for resentencing. At the res entencing hearing, the trial court corrected the

errors we identified by choosing to stay two simple assault counts (counts

VIII and X

, both 180 days ). The court also stayed the sentences for the count

V vandalism charge (one year)

, the count VIII simple assault charge (180

days), and the count II criminal threats charge (eight months) on section 654

grounds

. Sentences for count I (18 months), count VII (one year plus one year

for relate d enhancement), and count X I (8 years) remained the same, but

were imposed after full consideration of the recent changes in the sentencing

laws. The court changed the concurrent three

- year sentence on count XII to a

concurrent one

- year term and the concurrent three

- year sentence on count IX

to a consecutive one

- yea r term

.

In sum, all of the section 654 violations that were corrected by the trial

court resulted either in no change or a decrease in Trammel’s aggregate

sentence. The extra four months the court imposed at resentencing w ere the

result of the trial court swapping the eight

- month criminal threats charge

(count II)

, which the court stayed

, w ith a consecutive sentence of one year on

count IX, which the judge reduced from three years and made consecutive

instead of concurrent. T he sentence for count IX was permissible both when

originally imposed and when modified upon resentencing. The question,

then, is whether an erroneous sentence under section 654 which improperly

inflated Trammel’s aggregate sentence fall s within the Serra to exception,

thus allowing a harsher sentence on remand. We conclude that it does not.

When the Serrato Court discussed the exception to Henderson it was

articulating , it listed three cases as examples of the problem it was27

addressing. ( Serrato, supra

, 9 Cal.3d at p p

. 764

– 765.) In all of those cases,

the unauthorized sentence imposed was erroneously lenient

. ( I bi d .) As was

the sentence that Serrato , itself, was reviewing . ( Id. at p. 756 ; see id. at

pp. 762

– 763 [“ What appears is that the trial court desired to exercise an

unauthorized leniency

. ”]. ) Moreover, the Serrato Court stated that the

situation with which it was presented was analogous to cases in which a

conviction based upon a negotiated guilty plea is set aside , whe re the ends of

just ice required that counts dismissed by the prosecutor be restored. ( Id. at

p. 765.) Under these circumstances, we agree with the appellate court in

Price that “[t]he holding in Serrato vindicates the People ’ s right to imposition

of a proper sentence.” ( Price

, supra , 184 Cal.App.3d at p. 1409 ; accord,

Torres

, supra , 163 Cal.App.4th at p p

. 1429

- 1432; Craig

, supra

, 66

Cal.App.4th at p. 1449.) Thus, the Serrato exception only applies to

unauthorized sentences which were unlawfully lenient to th e detriment of the

People. ( Cf. Karaman

, supra

, 4 Cal.4th at p. 349 & fn. 15 [contrasting the

situation where a trial court may not increase a valid sentence after it has

commenced with Serrato and Ricky H.

, stating: “[W] here the court is

required to impose a certain minimum term but imposes a lesser t erm

instead, the unauthorized sentence is considered invalid or ‘unlawful’ and

may be increased even after execution of the sentence has begun.” ].)

We also find support for th e conclusion that Serrato applies only to

unauthorized, lenient sentences in the Supreme Court’s decision in Collins

.

There, as discussed above, the defendant’s plea bargain was effectively set

aside through no fault of his own. The Court discussed the rights of both the

prosecution and the defendant in this circumstance, and, c itin g Henderson for

the “long recognized” principal that “ the state has no interest in preserving

erroneous judgments,” the Supreme Court concluded that the rights of the28

prosecution and the defendant could best be protected by permitting the state

to revive one or more of the dismissed counts but limiting the defendant ’ s

potential sentence to not more than three years in state prison, the

comparable term of punishment that had been set by the D S L . ( Collins

,

supra

, 21 Cal.3d at p p

. 214

– 216.) We read t his case as standing for the

proposition that a defendant’s double jeopardy rights may be narrowly

impacted when necessary to protect the People’s right to a proper sentence.

A narrow interpretation of Serrato also minimizes many of the

problems with the exception identified in Brown. For instance, a defendant

may be penalized for appealing only in those limited situations where an

erroneous ly lenient judgment impedes the People’s right to a proper sentence.

And a defendant is still encouraged to appeal unauthorized, excessive

sentences. Moreover, we believe this construction of Serrato is more

straightforward in application. At a resentencing, the trial court must first

consider whether any unauthorized portions of the sentence were

impermissibly lenie nt to the detriment of the People . If they were, a harsher

sentence may be imposed at resentencing, but only to the extent necessary to

correct those errors

. Next, w e agree with the cases which conclude that an

aggregate prison term “ ‘ cannot be viewed as a series of separate independent

terms, but rather must be viewed as one prison term made up of

interdependent components. ’ ” ( Burns

, supra

, 158 Cal.App.3d at p. 1183;

accord, Hill

, supra

, 185 Cal.App.3d at p, 834.) Thus, the resentencing court

is permitted to reconsider all of its discretionary sentencing choices. 7 For

7 At first blush, certain statements in Price may seem contrary to this

conclusion . Specifically, the Price court faulted the trial court for increasing

on resentencing the sentences for two robbery counts “ neither attacked on

appeal, nor criticized ” in the court’s prior opinion in the matter

. ( Price

,

supra , 184 Cal.App.3d at p. 1413. ) The court concluded: “ These three

additional years (the difference between the three

- year midterm to a five

-29

example, it could choose to decrease other components of the sentence to

compensate for the increase required und er Serrato and reach an identical or

lower sentence

. But under no circumstances should the aggregate sentence

be more than the sum of the original sentence and the mandatory increase

required d ue to the Serrato errors.

Since, in this case, the unauthorized sentences were erroneously harsh

or neutral rather than lenient , the Serrato exception does not apply.

Consequently, while the trial court was allowed to reconsider all of the other

elements of Tra m mel’s sentence, under Henderson and its prog eny it could

not impose a n aggregate sentence greater than the original sentence of 12

years. The 12 year, four month sentence the court imposed on resentencing

thus violate s the California Constitution’s prohibition against double

jeopardy.

E. Appropr iate Remedy

Trammel asks that we remand this matter for another full

resentencing, this time before a different judge pursuant to Code of Civil

Procedure section 170.1, subdivision (c) and People v. Swanson (1983) 140

Cal.App.3d 571 in order to avoid any appearance of unfairness. We decline to

do so. As stated above, w e have reviewed the trial court’s resentencing

proceedings and see no evidence of vindictiveness. Rather, the court

year upper term (two years) and the addition of one

- third of the midterm (one

year)) were not corrections of ‘ illegalities ’ in the original sent ence.

‘ Illegalities ’ requiring re sentencing permit the imposition of a harsher

punishment. Those portions of the sentence were unaffected by ‘ illegality ’

and cannot be increased in punishment. ” ( Ibid. ) Having reviewed both Price

and the prior opinion in the matter ( People v. Price (1984) 151 Cal.App.3d

803) it appears that Price may have been objecting to these additional

increases because they went beyond those which had already been

implemented to correct the identified Serrato errors. Read as such, it

supports our suggested approach to Serrato error.30

understood it was engaged in a full resentencing, thoughtfully considered all

of the arguments raised by the parties, and then articulated its reasons for

imposing sentence on each sentencing component . Moreover, the court did

this fully aware of the discretion it possessed under certain new changes in

t he law as well as the additional requirements established by other statutory

changes. T he imposition of the additional four months does not appear to

have been vindictive . Rather, it seems that the court simply imposed the

one

- year consecutive term on co unt IX to compensate for its decision to stay

the eight month sentence for count II. Given the legal uncertainties in this

area, it is certainly understandable that the court mistakenly believed this

small increase in the aggregate sentence was permissibl e.

W e thus see no need for a nother resentencing before a different judge.

Nor do we see any reasonable likelihood that on remand this trial court

would impose an aggregate term appreciably different than the maximum

allowable 12 years. (See Price

, sup ra , 184 Cal.App.3d at p. 1413, citing

People v. Avalos (1984) 37 Cal.3d 216, 233.) Under the circumstances, we will

exercise our authority to modify the judgment by making the term imposed

on count IX run concurrently rather than consecutively, for a tota l aggregate

term of 11 years, four months. (§ 1260; People v. Alford (2010) 180

Cal.App.4th 1463, 1473.)

Finally, both parties agree that the amended abstract of judgment in

this case failed to accurately reflect Trammel’s total custody credits at the

t ime of resentencing. T he trial court confirmed at resentencing that, as of

November 6, 2020, Trammel had 311 presentence credits and 311 conduct

credits. As of the resentencing on November 2 3, 2022, the court found that

he had total custody credits of 1,054 days. It stated it was going to “indicate

that Mr. Trammel has 1,054 actual custody credits and allow the Department31

of Corrections to determine the conduct credits.” But the amended abstract

only sets forth the original presentence cred its of 622 days (311 custody/311

conduct). This was error. (See § 2900.1 [ “ Where a defendant has served any

portion of his sentence under a commitment based upon a judgment which

judgment is subsequently declared invalid or which is modified during the

t erm of imprisonment, such time shall be credited upon any subsequent

sentence he may receive upon a new commitment for the same criminal act or

acts.”] ; see also People v. Buckhalter (2001) 26 Cal.4th 2 0 , 23 [ conclud ing

that , at resentencing, the trial cou rt must recalculate and credit the actual

time the defendant had served prior to the modification ] .) We will therefore

also instruct the trial court to include in its second amended abstract of

judgment the actual total custody credits to which Trammel wa s entitled at

the time of his resentencing

.

III. DISPOSITION

The matter is remanded to the trial court with instruct ions to modify

the sentence on count IX to run concurrently rather than consecutively, to

impose a total aggregate sentence of 11 years , f our months, and to determine

Trammel’s actual total custody credits as of November 23, 2022 . The court

shall order the clerk of the superior court to prepare a second amended

abstract of judgmen t memorializing these changes and transmit a copy to the

Department of Corrections and Rehabilitation . I n all other respects, the

judgment is affirmed.32 BOWEN, J. 

WE CONCUR:

H UMES

, P. J.

M ARGULIES

, J.

A166756P

 Judge of the Contra Costa County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.33

San Francisco County Superior Court

Hon. Teresa M. Caffese

Counsel:

Law offices of Bess Stiffelman, Bess Stiffelman under appointment by the

Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Jeffrey M. Laurence, Senior Assista nt Attorney General, Melissa A.

Meth, Deputy Attorney General, Jalem Z. Peguero, Deputy Attorney General

for Plaintiff and Respondent.