Filed 5/31/24 P. v. Carbajal CA1/1

(corrected version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALBERTO HERNANDEZ 

CARBAJAL,

Defendant and Appellant. 

 A168441

 (Del Norte County 

 Super. Ct. No. CR-PB-19-5041)

 

 

Alberto Hernandez Carbajal has appealed this conviction twice 

before. He now challenges a prison sentence comprised of 

indeterminate and determinate terms imposed by the trial court after a 

July 2023 resentencing hearing. We vacate the sentence and remand 

for resentencing. The court failed to designate a principal term among 

the determinate terms and impose the full term for that sentence. 

(Pen. Code,1 § 1170.1, subd. (a).) In all other respects, we affirm.

1 All statutory references are to the Penal Code. 
2

I. BACKGROUND2

In 2017, while serving a life sentence, Carbajal participated in a 

riot that severely injured several correctional officers. A jury convicted 

him of 16 counts of assault in connection with the incident. Eight were 

counts of assault by a life prisoner by means of force likely to produce 

great bodily injury (assault by a life prisoner), and the other eight 

counts were assault by a state prisoner by means of force likely to 

produce great bodily injury (assault by a state prisoner). The trial 

court sentenced him to 59 years to life in prison, which included five 

years for a prior serious felony enhancement. In his first appeal, we

reversed seven of the convictions for assault by a life prisoner and one 

conviction for assault by a state prisoner, and we remanded the matter 

for resentencing. (People v. Carbajal, supra, A161025.)

On remand, the trial court sentenced Carbajal to 31 years to life

in prison. He appealed. We again reversed and remanded for 

resentencing. We concluded defense counsel rendered prejudicial 

ineffective assistance at the resentencing hearing. (People v. Carbajal, 

supra, A165143.) 

The trial court held a third resentencing hearing in July 2023. In 

total, it sentenced Carbajal to an indeterminate term of 26 years to life 

in prison. The sentence was comprised of nine years to life on the 

conviction for assault by a life prisoner (count 15), doubled due to a

prior strike conviction. On three of the convictions for assault by a 

state prisoner (counts 1, 2, and 3), the court imposed three consecutive

2 We incorporate by reference our nonpublished opinions in

Carbajal’s prior appeals, People v. Carbajal (Dec. 6, 2021, A161025) and 

People v. Carbajal (Mar. 29, 2023, A165143). 
3

determinate terms, adding another eight years to Carbajal’s sentence. 

These terms were comprised of one-third the four-year middle term for 

each conviction, doubled for Carbajal’s prior strike. The court stayed 

the terms on the four remaining convictions for assault by a state 

prisoner (counts 4, 5, 6, and 8), and it struck the five-year serious prior 

felony enhancement imposed at the original sentencing hearing. 

II. DISCUSSION

Carbajal now challenges the judgment on several grounds. He 

contends the matter must be remanded for resentencing because the 

trial court made unsubstantiated factual findings, misapprehended the 

relevant sentencing criteria, and refused to appoint a neuropsychologist 

and investigator to present evidence of childhood trauma and racially

discriminatory sentencing among similarly situated inmates. The 

People agree that remand is required but identify a different reason. 

The People contend the court erroneously failed to designate a principal 

term among the determinate terms and impose the full term for that 

sentence. The People are correct. We reverse and remand for this 

reason.

“Indeterminate term crimes and determinate term crimes are 

subject to two different sentencing schemes.” (People v. Neely (2009) 

176 Cal.App.4th 787, 797 (Neely).) Accordingly, “[s]entencing under 

these two . . . schemes must be performed separately and 

independently of each other.” (Ibid.) After the trial court determines 

the appropriate sentence to impose for the indeterminate term and the 

determinate term offenses, “it combines the two to reach an aggregate 

total sentence.” (Id. at p. 798.)
4

When an offense for which an indeterminate sentence of life 

imprisonment can be imposed, the trial court “simply imposes the 

statutory term of imprisonment for the indeterminate sentence crime.” 

(Neely, supra, 176 Cal.App.4th at p. 798.) But when imposing 

consecutive sentences for crimes requiring a determinate term, the 

court must comply with a three-step protocol. (Id. at pp. 797–798; 

§§ 1170, 1170.1.) The court first selects a base term for each 

determinate conviction; it next designates the longest term imposed as 

the principal term and the remaining determinate terms as 

subordinate terms; the court then imposes the full base term for the 

principal term and one-third of the middle term for each of the

consecutive subordinate terms. (Neely, at pp. 797–798.) Under the 

“Three Strikes” law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), the 

principal and subordinate terms must be doubled when, as here, the 

defendant has a prior strike conviction. (People v. Nguyen (1999) 

21 Cal.4th 197, 203–204.)

Here, it appears the trial court imposed an indeterminate term 

on count 15, and three consecutive determinate terms on counts 1, 2, 

and 3 using the indeterminate term for count 15 as the “base term.” By 

imposing “a consecutive one-third of the middle term sentence for 

[counts 1, 2, and 3], the court in effect was designating [count 15] as the 

principal term under section 1170.1.” (Neely, supra, 176 Cal.App.4th at 

p. 797.) This was error. Remand is therefore required for the court to 

resentence Carbajal in accordance with the process that applies for 

sentencing of an indeterminate term along with consecutive 

determinate terms as described above. (Id. at pp. 798–799.) 
5

In light of our conclusion, we will not address Carbajal’s other 

assertions of error. He may raise them to the trial court on 

resentencing. It would be speculative for us to address them, as they 

may be irrelevant depending on the outcome of those proceedings.

(People v. Falcon (2023) 92 Cal.App.5th 911, 957, review granted 

Sept. 13, 2023, S281242; People v. Campbell (2023) 98 Cal.App.5th 350, 

392–393.) On remand we expect the court will comply with 

section 1170 (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 

65, 74 & fn. 2), construe section 1385 consistent with recent authority 

(People v. Dain (2024) 99 Cal.App.5th 399, 410–411, review granted 

May 29, 2024, S283924), avoid issues of double jeopardy at 

resentencing following remand of an unauthorized sentence (People v.

Trammel (2023) 97 Cal.App.5th 415, 435), and ensure the abstract of 

judgment correctly reflects the length of the indeterminate sentence 

imposed on count 15. 

III. DISPOSITION

The sentence is vacated and the matter is remanded to the trial 

court for resentencing. In all other respects, the judgment is affirmed.
6

SIGGINS, J.*

WE CONCUR:

HUMES, P. J.

BANKE, J.

A168441

People v. Carbajal

* Retired Presiding Justice of the Court of Appeal, First Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.