(Super. Ct. No. 97F05215)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Louie Moreno, Jr., entered a negotiated plea of guilty to one count of committing a lewd and lascivious act on a child under the age of fourteen years (Pen. Code, § 288, subd. (a))*fn1 and four counts of committing such an act by use of force, violence, duress, menace, or fear of bodily injury (§ 288, subd. (b)). Defendant also admitted to having a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and that he had served five prior prison terms (§ 667.5, subd. (b)). In exchange for his plea, the People agreed defendant would serve no less than 38 years and no more than 45 years in state prison. The trial court sentenced defendant to an aggregate term of 40 years in state prison and imposed other orders, including a victim restitution order.
Although defendant waived his right to appeal, and did not obtain a certificate of probable cause, he now appeals from the sentence imposed. Specifically, he asserts the sentence was unauthorized because the trial court imposed three prior prison term enhancements for one continuous prison term. He also contends the victim restitution order was an unauthorized increase in penalty following a successful habeas corpus petition in violation of the double jeopardy clause of the California Constitution. Finally, he claims entitlement to four additional days of custody credit. We agree that defendant is entitled to four additional days of custody credit, but disagree with his other claims. As we shall explain, defendant's failure to obtain a certificate of probable cause bars his challenge to the sentence enhancements. In essence, defendant is disputing the factual basis underlying his admission to two of the enhancements, which constitutes a challenge to the validity of the plea itself. Such a challenge on appeal requires a certificate of probable cause. With regard to the imposition of a victim restitution order following a successful habeas corpus petition, we hold that such an order does not violate the double jeopardy clause because, unlike a restitution fine, it does not amount to punishment for double jeopardy purposes. We therefore modify the judgment to provide defendant with four additional days of custody credit and affirm the modified judgment.
The facts underlying defendant's convictions are not pertinent to the issues raised on appeal. Suffice it to say that on June 29, 1997, defendant committed a number of lewd acts against his girlfriend's 11-year-old sister, including touching her breasts and rubbing his fist against her genital area over her clothing, simulating sexual intercourse by rubbing himself against her, and reaching beneath her clothing and penetrating her vagina with his finger.
In 1999, defendant was convicted by jury of one count of committing a lewd and lascivious act on a child under the age of fourteen years and four counts of committing such an act by use of force, violence, duress, menace, or fear of bodily injury. The jury also found that defendant had two prior strike convictions within the meaning of the three strikes law and had also served five prior prison terms. Defendant was sentenced to an aggregate term of 56 years in state prison. The trial court did not, however, impose a victim restitution order. Thereafter, the victim of defendant's sexual assault submitted a victim's compensation claim to the California Board of Control (now the Victim Compensation and Government Claims Board) and received $1,050 in victim compensation.
In 2008, the United States District Court for the Eastern District of California granted defendant's petition for writ of habeas corpus due to instructional error at defendant's trial and ordered that he be either retried or released from custody.
In 2010, the People filed an amended information charging defendant with the aforementioned crimes. Defendant was also alleged to have one prior strike conviction within the meaning of the three strikes law, which was also alleged as a prior serious felony within the meaning of section 667, subdivision (a). He was further alleged to have served five prior prison terms within the meaning of section 667.5, subdivision (b). Defendant entered a negotiated plea of guilty to the charged offenses and admitted the enhancements. As already indicated, the People agreed defendant would serve no less than 38 years and no more than 45 years in state prison. Defendant also waived his right to appeal.
At the subsequent sentencing hearing, the trial court denied defendant's motion to dismiss his prior strike conviction and, pursuant to the agreement, sentenced him to an aggregate term of 40 years in state prison (two consecutive eight-year terms, doubled pursuant to section 667, subdivision (e)(1), plus a consecutive five-year term for the prior serious felony enhancement, plus three consecutive one-year terms for three prior prison term enhancements). Because two of the prior prison term enhancements involved burglaries committed on the same date, for which a single aggregate term of incarceration was imposed, the trial court stayed one of these enhancements. And in order to impose a 40-year prison term, the trial court ...