Filed 11/16/21 P. v. Rocha CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077031
v. (Super.Ct.No. RIF1303076)
DANIEL NINO ROCHA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Reversed and remanded with directions in part, affirmed in part.
Sheila O’Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant and appellant Daniel Nino Rocha appeals the sentence imposed
following remand by this court with the direction that the trial court stay the 16-month
sentence on count 3 under Penal Code1 section 654. Upon remand, the trial court vacated
the sentence, and imposed then stayed an upper term sentence of three years on count 3.
Defendant argues the trial court lacked jurisdiction to increase the sentence on count 3
from this court’s dispositional order. The People agree, as do we. The trial court had no
power to deviate from the dispositional order in our opinion from defendant’s prior
appeal on remand. The matter is therefore remanded to the trial court with directions to
reduce the term on count 3 to a stayed 16-month term. In all other respects, the judgment
is affirmed.
II. PROCEDURAL BACKGROUND
On July 12, 2013, a jury found defendant guilty of assault with a firearm (§ 245,
subd. (a)(2); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2);
and street terrorism (§ 186.22, subd. (a); count 3). As to count 1, the jury found true that
defendant had personally used a firearm (§ 12022.5, subd. (a)) and had personally
inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). As to counts 1 and 2,
the jury found true that defendant committed the crimes for the benefit of, at the direction
of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)). In addition,
defendant admitted that he had suffered one prior prison term (§ 667.5, subd. (b)(1)), one
1 All future statutory references are to the Penal Code unless otherwise stated.
2 prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667,
subds. (c), (e)(1); 1170.12, subd. (c)(1)).
On August 30, 2013, the trial court sentenced defendant to an aggregate term of
38 years eight months in prison as follows: the upper term of eight years on count 1, a
consecutive term of three years for the section 12022.7, subdivision (a) enhancement, a
consecutive term of 10 years for the section 186.22, subdivision (b)(1) enhancement, and
a consecutive term of 10 years on the section 12022.5, subdivision (a) enhancement; a
consecutive middle term of 16 months on count 2, with a consecutive, stayed, three-year
term for the section 186.22, subdivision (b)(1) enhancement; a consecutive middle term
of 16 months on count 3; plus a consecutive five-year term for the prior serious felony
conviction; and stayed a one-year term for the prior prison term.
Defendant subsequently appealed his conviction and sentence. In a nonpublished
opinion filed October 30, 2014, in case No. E059570, we affirmed the judgment of
conviction, but directed the trial court to stay the 16-month sentence on count 3 pursuant
to section 654. We specifically ordered that, “The judgment is ordered modified to stay
the one-year-four-month sentence on count 3 (participation in a street gang) under
section 654. In all other regards, the judgment is affirmed. The trial court is directed to
prepare a corrected abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.”
On February 25, 2015, after issuance of the remittitur in case No. E059570, at a
hearing outside the presence of counsel and defendant, the trial court vacated defendant’s
3 sentence as to count 3, imposed an upper term of three years on that count, stayed the
three-year term under section 654 on count 3, and closed the case.
On September 19, 2018, the court received a letter from the California Department
of Corrections and Rehabilitation (CDCR) asking it to recall defendant’s sentence and
resentence him under section 1170, subdivision (d). Specifically, the CDCR noted that,
in People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the Court of Appeal held
that a defendant could not be given separate sentences for enhancements under
sections 12022.7, subdivision (a) and 186.22, subdivision (b)(1)(C)⸺one of the terms
had to be stayed. The CDCR recommended that the trial court comply with the mandates
of Gonzalez.
Upon receiving the letter from CDCR, the trial court appointed counsel to
represent defendant. In their respective briefing, both parties agreed that Gonzalez
controlled and that defendant’s sentence on the section 12022.7, subdivision (a)
enhancement⸺the shorter enhancement term⸺had to be stayed under section 654.
Among other requests, defense counsel asked the court to “correct” the sentence on count
3 “so that it conform[ed] with the command of the remittitur.” Counsel pointed out that
this court had directed a modification of the original judgment to reflect a 16-month stay
on count 3, but that the trial court had instead imposed a three-year term on that count
before staying it. Counsel argued that the trial court’s order was void and an excess of
jurisdiction.
4 At a hearing held on April 30, 2021, the trial court followed the recommendation
of the CDCR by staying defendant’s sentence on the section 12022.7, subdivision (a)
enhancement under section 654. The court, however, declined to make any other changes
to defendant’s sentence. As to defendant’s request to reduce the stayed three-year term
on count 3 to 16 months, the court stated: “All right. So, as mentioned, the original
sentence to Mr. Rocha was 38 years eight months. However, after the remittitur, the
Court stayed Count 3 pursuant to [section] 654 and the new sentence was 37 years four
months because that 16-month sentence was not allowed under the [C]ourt of [A]ppeal
opinion. The Court had previously simply sentenced him to the upper term of three
years. Rather than staying the 16 months, I stayed the three years. [¶] It doesn’t really
make much difference one way or the other because that time can never be imposed.
When and if Mr. Rocha is paroled, if he violated, he doesn’t get that time. That time can
never be imposed upon him. So there’s no danger of him receiving more time than he
should. So there was no additional issues taken by the Court’s imposition of the three
years which was stayed, and so I think we’ll just stick with that.” The court therefore
imposed a total prison term of 34 years four months. Defendant timely appealed from the
court’s judgment.
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Filed 11/16/21 P. v. Rocha CA4/2
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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077031
v. (Super.Ct.No. RIF1303076)
DANIEL NINO ROCHA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Reversed and remanded with directions in part, affirmed in part.
Sheila O’Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
Defendant and appellant Daniel Nino Rocha appeals the sentence imposed
following remand by this court with the direction that the trial court stay the 16-month
sentence on count 3 under Penal Code1 section 654. Upon remand, the trial court vacated
the sentence, and imposed then stayed an upper term sentence of three years on count 3.
Defendant argues the trial court lacked jurisdiction to increase the sentence on count 3
from this court’s dispositional order. The People agree, as do we. The trial court had no
power to deviate from the dispositional order in our opinion from defendant’s prior
appeal on remand. The matter is therefore remanded to the trial court with directions to
reduce the term on count 3 to a stayed 16-month term. In all other respects, the judgment
is affirmed.
II. PROCEDURAL BACKGROUND
On July 12, 2013, a jury found defendant guilty of assault with a firearm (§ 245,
subd. (a)(2); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2);
and street terrorism (§ 186.22, subd. (a); count 3). As to count 1, the jury found true that
defendant had personally used a firearm (§ 12022.5, subd. (a)) and had personally
inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). As to counts 1 and 2,
the jury found true that defendant committed the crimes for the benefit of, at the direction
of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)). In addition,
defendant admitted that he had suffered one prior prison term (§ 667.5, subd. (b)(1)), one
1 All future statutory references are to the Penal Code unless otherwise stated.
2 prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667,
subds. (c), (e)(1); 1170.12, subd. (c)(1)).
On August 30, 2013, the trial court sentenced defendant to an aggregate term of
38 years eight months in prison as follows: the upper term of eight years on count 1, a
consecutive term of three years for the section 12022.7, subdivision (a) enhancement, a
consecutive term of 10 years for the section 186.22, subdivision (b)(1) enhancement, and
a consecutive term of 10 years on the section 12022.5, subdivision (a) enhancement; a
consecutive middle term of 16 months on count 2, with a consecutive, stayed, three-year
term for the section 186.22, subdivision (b)(1) enhancement; a consecutive middle term
of 16 months on count 3; plus a consecutive five-year term for the prior serious felony
conviction; and stayed a one-year term for the prior prison term.
Defendant subsequently appealed his conviction and sentence. In a nonpublished
opinion filed October 30, 2014, in case No. E059570, we affirmed the judgment of
conviction, but directed the trial court to stay the 16-month sentence on count 3 pursuant
to section 654. We specifically ordered that, “The judgment is ordered modified to stay
the one-year-four-month sentence on count 3 (participation in a street gang) under
section 654. In all other regards, the judgment is affirmed. The trial court is directed to
prepare a corrected abstract of judgment and to forward it to the Department of
Corrections and Rehabilitation.”
On February 25, 2015, after issuance of the remittitur in case No. E059570, at a
hearing outside the presence of counsel and defendant, the trial court vacated defendant’s
3 sentence as to count 3, imposed an upper term of three years on that count, stayed the
three-year term under section 654 on count 3, and closed the case.
On September 19, 2018, the court received a letter from the California Department
of Corrections and Rehabilitation (CDCR) asking it to recall defendant’s sentence and
resentence him under section 1170, subdivision (d). Specifically, the CDCR noted that,
in People v. Gonzalez (2009) 178 Cal.App.4th 1325 (Gonzalez), the Court of Appeal held
that a defendant could not be given separate sentences for enhancements under
sections 12022.7, subdivision (a) and 186.22, subdivision (b)(1)(C)⸺one of the terms
had to be stayed. The CDCR recommended that the trial court comply with the mandates
of Gonzalez.
Upon receiving the letter from CDCR, the trial court appointed counsel to
represent defendant. In their respective briefing, both parties agreed that Gonzalez
controlled and that defendant’s sentence on the section 12022.7, subdivision (a)
enhancement⸺the shorter enhancement term⸺had to be stayed under section 654.
Among other requests, defense counsel asked the court to “correct” the sentence on count
3 “so that it conform[ed] with the command of the remittitur.” Counsel pointed out that
this court had directed a modification of the original judgment to reflect a 16-month stay
on count 3, but that the trial court had instead imposed a three-year term on that count
before staying it. Counsel argued that the trial court’s order was void and an excess of
jurisdiction.
4 At a hearing held on April 30, 2021, the trial court followed the recommendation
of the CDCR by staying defendant’s sentence on the section 12022.7, subdivision (a)
enhancement under section 654. The court, however, declined to make any other changes
to defendant’s sentence. As to defendant’s request to reduce the stayed three-year term
on count 3 to 16 months, the court stated: “All right. So, as mentioned, the original
sentence to Mr. Rocha was 38 years eight months. However, after the remittitur, the
Court stayed Count 3 pursuant to [section] 654 and the new sentence was 37 years four
months because that 16-month sentence was not allowed under the [C]ourt of [A]ppeal
opinion. The Court had previously simply sentenced him to the upper term of three
years. Rather than staying the 16 months, I stayed the three years. [¶] It doesn’t really
make much difference one way or the other because that time can never be imposed.
When and if Mr. Rocha is paroled, if he violated, he doesn’t get that time. That time can
never be imposed upon him. So there’s no danger of him receiving more time than he
should. So there was no additional issues taken by the Court’s imposition of the three
years which was stayed, and so I think we’ll just stick with that.” The court therefore
imposed a total prison term of 34 years four months. Defendant timely appealed from the
court’s judgment.
III. DISCUSSION
Defendant contends the trial court exceeded its jurisdiction when it increased his
sentence on count 3 to three years following our remittitur because the court was required
5 to follow the directions issued by this court in our opinion in case No. E059570, and its
failure to do so requires a remand. The People agree, as do we.
“[T]he essence of remittitur is the returning or revesting of jurisdiction in an
inferior court by a reviewing court.” (Gallenkamp v. Superior Court (1990) 221
Cal.App.3d 1, 10 (Gallenkamp).) “Once we finally resolve a criminal appeal, and after
the time has passed for the Supreme Court to grant review, we issue a remittitur to remit
the appellate court judgment to the trial court, to divest the appellate court of further
jurisdiction, and to transfer jurisdiction back to the trial court. (Cal. Rules of Court,
rule 8.272.) ‘Remittitur transfers jurisdiction back to the inferior court so that it may act
upon the case again, consistent with the judgment of the reviewing court.’” (People v.
Awad (2015) 238 Cal.App.4th 215, 223, quoting Gallenkamp, at p. 10.)
“The order of the reviewing court is contained in its remittitur, which defines the
scope of the jurisdiction of the court to which the matter is returned.” (Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 701 (Griset).) The Supreme Court has
stated: “When there has been a decision upon appeal, the trial court is reinvested with
jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the
remittitur. The trial court is empowered to act only in accordance with the direction of
the reviewing court; action which does not conform to those directions is void.
[Citations.]” (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.) “When . . . there
is an appeal from a void judgment [or order], the reviewing court’s jurisdiction is limited
to reversing the trial court’s void acts. [Citations.]” (Griset, at p. 701.)
6 “‘When there has been a decision on appeal, the trial court is reinvested with
jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the
remittitur. The trial court is empowered to act only in accordance with the direction of
the reviewing court; action which does not conform to those directions is void.’” (People
v. Dutra (2006) 145 Cal.App.4th 1359, 1366 (Dutra), citing Stafford v. Municipal Court
(1960) 180 Cal.App.2d 368, 370-371.) “‘Where a reviewing court reverses a judgment
with directions . . . the trial court is bound by the directions given and has no authority to
retry any other issue or to make any other findings. Its authority is limited wholly and
solely to following the directions of the reviewing court.’” (Dutra, at p. 1367.)
Here, the disposition in the prior opinion, case No. E059570, was clear. In the
prior appeal, this court modified the judgment and ordered the trial court “to stay the one-
year-four-month sentence on count 3 (participation in a street gang) under section 654.”
In all other respects, we affirmed the judgment and directed the trial court “to prepare a
corrected abstract of judgment and to forward it to the Department of Corrections and
Rehabilitation.” The disposition did not direct the trial court to take any further actions,
and certainly not to increase the sentence on count 3 to three years. By increasing the
term on count 3, the trial court acted in contravention of the remittitur. Such sentence
imposed by the trial court upon remand is thus void.
The trial court was bound by the terms of our remittitur. “A trial court may not
disobey a remittitur, as that would amount to overruling the appellate court’s decision,
thereby violating a basic legal principle: ‘Courts exercising inferior jurisdiction must
7 accept the law declared by courts of superior jurisdiction. It is not their function to
attempt to overrule decisions of a higher court.’” (Dutra, supra, 145 Cal.App.4th at
p. 1362.) “Whether the trial court correctly interpreted our opinion is an issue of law
subject to de novo review.” (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851,
859.) The term of the remittitur should have been obeyed by the trial court.
IV. DISPOSITION
We order the sentence imposed on count 3 by the trial court upon remand vacated.
The matter is remanded to the trial court with directions to reduce the stayed three-year
term on count 3 (participation in a street gang) to a stayed 16-month sentence. The clerk
of the superior court is directed to prepare an amended abstract of judgment reflecting the
modification and to forward it to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
McKINSTER J.