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Name: People v. Burbine
Case #: A096825
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 03/12/2003
Subsequent History: Rev. denied 6/11/03
Summary

Appellant’s case was remanded for resentencing in an earlier appeal because one of the counts of conviction was invalid based on an erroneous jury instruction. At resentencing, the judge listed the materials he had reviewed in preparation for the hearing, and did not mention the letters submitted in mitigation. Appellant’s counsel did not mention them either. The judge resentenced appellant to the same term originally imposed, but reached the result by a different route. (An upper term on another count in lieu of a midterm previously imposed.) On appeal, he argued that he should not have received the same term for molesting two children that he had earlier received for molesting three. The appellate court rejected the argument, finding that the trial judge’s original sentencing choices did not constrain him from imposing any sentence permitted under the applicable statutes on remand, subject only to the limitation that the aggregate prison term could not be increased. Further, defense counsel’s failure to argue the letters in mitigation was not ineffective assistance of counsel because the letters were not properly mitigating, and appellant was not prejudiced.