IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 13, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
WALTER SHANE LANGSTON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 07F09116)
The opinion of the court was delivered by: Butz , J.
P. v. Langston
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Charged with first degree burglary, vehicle theft, receiving a stolen vehicle, and resisting a peace officer, with allegations of priors for enhancement purposes, defendant Walter Shane Langston entered a plea to all counts and allegations in exchange for the trial court's indicated state prison sentence of an aggregate term of 14 years four months. The trial court sentenced defendant accordingly. In People v. Langston (Aug. 10, 2009, C059210) (Langston I), a nonpublished opinion, this court reversed the judgment, concluding that defendant's plea had been improperly induced by the trial judge's promises that defendant could raise certain non-cognizable issues on appeal, and remanded to the trial court to allow defendant an opportunity to withdraw his plea.*fn1
On remand, defendant, represented by counsel, moved to withdraw his plea and the trial court granted his motion. Thereafter, on the fourth day of trial after the jury was sworn, defendant entered a straight-up no contest plea to all counts and allegations; a sentence was not indicated or negotiated. Defense counsel wrote to the probation department after defendant entered his plea: "It is my position that [defendant] is still entitled to the sentence imposed by Judge Orr [14 years four months]. The rationale is that he should not be punished, by being sentenced to additional time, because of what was essentially a mistake by the Court." Instead, the trial court imposed a state prison sentence of an aggregate term of 17 years four months, three years longer than was imposed in Langston I. The court also imposed a $3,400 restitution fine and a $3,400 parole revocation restitution fine, $600 more for each than was imposed in Langston I. Defendant was awarded presentence credits of 976 actual days and 488 conduct days, a total of 1,464 days.*fn2
Defendant appeals. He contends the trial court violated the state's constitutional prohibition against double jeopardy in imposing a more severe sentence on remand. He also contends that the more severe sentence violates his state constitutional right to procedural due process. The People respond that the sentence did not violate the principles of double jeopardy or procedural due process. We find no error and shall affirm.
"When a defendant successfully appeals a criminal conviction, California's constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing" (People v. Hanson (2000) 23 Cal.4th 355, 357 (Hanson), citing People v. Henderson (1963) 60 Cal.2d 482, 495-497 (Henderson)) as does "California's due process right to procedural fairness" (Hanson, at pp. 366-367). But, "[f]amiliar and basic principles of law reinforced by simple justice require that when an accused withdraws his guilty plea the status quo ante must be restored. When a plea agreement has been rescinded the parties are placed by the law in the position each had before the contract was entered into." (People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258 (Garcia), citing In re Sutherland (1972) 6 Cal.3d 666, 672.)
Defendant argues the cost of his right to appeal is unreasonable in that his successful appeal resulted in three more years in state prison and increased restitution fines, violating the rule in Henderson, supra, 60 Cal.2d at page 497. Distinguishing Garcia, supra, 131 Cal.App.3d 256, defendant claims that his original plea was not a "plea bargain" because the prosecutor made no concessions, noting that the prosecutor offered 15 years but defendant "pled to the sheet" because the trial court indicated a sentence of 14 years four months.
The People argue that defendant originally bargained for the sentence and, on remand, withdrew his plea, so he was no longer entitled to the bargain of 14 years four months. We agree with the People.
"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." (Henderson, supra, 60 Cal.2d at p. 497.) In Henderson, the defendant waived his right to a jury and entered a guilty plea to murder. At a court trial, the judge found the murder to be of the first degree. The judge then sentenced defendant to state prison for life. The defendant successfully appealed. On retrial, a jury convicted defendant of murder in the first degree and sentenced him to death. (Id. at p. 484.) Henderson determined that the sentence of death after reversal of the judgment imposing life violated the prohibition against double jeopardy. (Id. at pp. 495-497.)
Contrary to defendant's claim, the Henderson rule does not apply here. The defendant in Henderson faced two trials. (Garcia, supra, 131 Cal.App.3d at p. 259.) "[T]he double jeopardy clause forbids the imposition of a more severe penalty on retrial." (Garcia, at p. 260; see also People v. Ali (1967) 66 Cal.2d 277, 281; People v. Thompson (1998) 61 Cal.App.4th 1269, 1273-1276; People v. Jones (1994) 24 Cal.App.4th 1780, 1782-1785.) Defendant, here, did not face two trials. "What defendant faces here as a result of his choice to withdraw his guilty plea is allowed by both the California and United States Constitutions: single jeopardy." (Garcia, supra, 131 Cal.App.3d at p. 260; see also Hanson, supra, 23 Cal.4th at p. 360, fn. 2; People v. Serrato (1973) 9 Cal.3d 753, 765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; cf. People v. Collins (1978) 21 Cal.3d 208, 211-217, 216 [Legislature decriminalized conduct underlying the defendant's plea, which the defendant did not seek to withdraw; remedy permitting the state to revive at least one dismissed count but limiting the defendant's sentence on remand was fashioned to "restore to the state the benefits for which it bargained without depriving defendant of the bargain to which he remains entitled"].)
Contrary to defendant's claim otherwise, there was a plea agreement here and it was rescinded on his motion. In Langston I, prior to the preliminary hearing, the prosecutor offered 13 years. After the preliminary hearing, the prosecutor offered 15 years, while the trial court indicated a sentence of 13 years. The prosecutor advised the court that the sentence for one count had to be consecutive, not concurrent, so the court's indicated sentence had to be at least 14 years four months. The record shows that the prosecutor and the trial court both discussed a plea agreement with defendant who was representing himself. The prosecutor did make a concession in that the resulting plea agreement was for a total term of 14 years four months, eight months less than that offered after the preliminary hearing and substantially less than defendant faced.
Defendant appealed and this court reversed, finding defendant's plea had been improperly induced by promises that he could raise certain non-cognizable issues on appeal. We remanded to allow defendant an opportunity to withdraw his plea. He was certainly not required to withdraw his plea but he chose to do so, which restored the status quo ante. The new sentence does not violate either principles of double jeopardy or procedural fairness.
The judgment is affirmed.
We concur: RAYE , P. J. HOCH , J.