People v. Thamracksa CA4/1

• Court: California Court of Appeal
• Decided: April 4, 2016
• Docket: D068142
• Status: Unpublished

Opinion

Filed 4/4/16 P. v. Thamracksa CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068142

Plaintiff and Respondent,

v. (Super. Ct. Nos. SCD240759, SCD242508) MINA THAMRACKSA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Laura H.

Halgren, Judge. Affirmed.

Sheila Ann Quinlan, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Arlene A. Sevidal and Allison V. Hawley, Deputy

Attorneys General, for Plaintiff and Respondent.

Mina Thamracksa appeals an order resentencing her under Penal Code section

1170.18, subdivision (b) (Proposition 47). We affirm the judgment. BACKGROUND

Mina Thamracksa pleaded guilty to possession of narcotics (Health & Saf. Code,

§ 11377, subd. (a)) in case No. SCD240759. The court sentenced her in this case and two

pending cases to a total of six years four months in jail as follows: it selected a receiving

stolen property conviction (Pen. Code, § 496, subd. (a)) in case No. SCD240759 as the

principal term and sentenced her to the upper term of three years; it imposed consecutive

terms of eight months for unauthorized use of personal identifying information of another

(Pen. Code, § 530.5, subd. (a)) and two years for felony committed while out on bail

(Pen. Code, § 12022.1, subd. (b)) in case No. SCD248704; and it imposed eight months

for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in case

No. SCD242508.

Thamracksa petitioned to recall her sentence under Penal Code section 1170.18,

subdivision (b), requesting that she be resentenced to a misdemeanor in case No.

SCD240759. The court, noting Thamracksa's long criminal history, reduced her sentence

to a total of five years in jail by imposing the upper term of three years in case No.

SCD248074 (Pen. Code, § 530.5, subd. (a)), and reducing the Penal Code section 496,

subdivision (a) conviction in case No. SCD240759 and Health and Safety Code section

11377, subdivision (a) conviction in case No. SCD242508 to misdemeanors, imposing

consecutive 364-day jail terms on each count.

Thereafter, Thamracksa again moved to recall her sentence, arguing that under

Penal Code section 1170.18, subdivision (e), the court erred in resentencing her because

the original sentence imposed in case No. SCD242508 (Health & Saf. Code,

2 § 11377) was eight months, but after resentencing it had increased to 364 days. The court

denied the motion, reasoning that the new sentence met Proposition 47's objective

because Thamracksa's aggregate sentence was decreased.

On appeal, Thamracksa contends that under Penal Code section 1170.18,

subdivision (e) and principles of double jeopardy, the court was barred from increasing

the term of her reduced misdemeanor count in excess of the term originally imposed on

that count as a felony. She argues that the statute bars higher sentences on individual

counts rather than on the aggregate sentence.

DISCUSSION

Penal Code section 1170.18, subdivision (e) provides: "Under no circumstances

may resentencing under this section result in the imposition of a term longer than the

original sentence." "[W]hen a defendant is sentenced consecutively for multiple

convictions, whether in the same proceeding or in different proceedings, the judgment or

aggregate determinate term is to be viewed as interlocking pieces consisting of a

principal term and one or more subordinate terms. ([Pen. Code], § 1170.1, subd. (a).)

[Penal Code s]ection 1170.1, with certain exceptions, also places certain restrictions on

the sentencing judge's discretion such as limiting the term of imprisonment for a

subordinate term to no more than one-third the middle term of imprisonment for such

conviction." (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1552.)

The same issues presented here were raised in People v. Sellner (2015) 240

Cal.App.4th 699, a case with which we agree. That court concluded: "Appellant claims

that the increased sentence presents a jeopardy issue because appellant has been subjected

3 to a sentence greater than originally imposed. Were one to put horse blinders on and

view only the sentence in [one case], appellant would be correct. We must, however,

look at the big picture." (Sellner, at p. 702.)

Thamracksa's initial aggregate sentence was six years four months. But her

petition to recall succeeded and her sentence was reduced to five years. Therefore,

consistent with Proposition 47, she received a lesser sentence. "When the principal term

is no longer in existence, the subordinate term must be recomputed. That is the case here.

As long as the recomputed term is less than the prior aggregate term, the defendant has

not been punished more severely for the successful filing of a Proposition 47 petition."

(People v. Sellner, supra, 240 Cal.App.4th at p. 702.) Penal Code section 1170.18,

subdivision (e) "does not trump [Penal Code] section 1170.1, subdivision (a) or govern

aggregate consecutive sentences which are treated as interlocking pieces." (Ibid.)

4 DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.