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Name: People v. Kingsberry
Case #: B227750
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 10/26/2011
Subsequent History: opn. mod. on 11/10/2011; review den. and depublished by CASC on 2/1/2012

Once an unauthorized sentence has been imposed, the court may correct the error even if it results in a greater sentence. In 2007, the defendant was sentenced to state prison for a violation of Penal Code section 288, subdivision (a) for a midterm of four years after a violation of probation. The sentencing triad is three, six or eight years. When his release was imminent, CDCR sent a letter to the trial court to determine if correction of the sentence was required. At the resentencing, the court indicated that it had always intended to impose the midterm and refused to impose the low term as the defense argued. There was no double jeopardy bar to correction of an unlawful sentence, even though it was more severe. Only where a court imposes a legal, aggregate sentence, the constitutional guarantee against double jeopardy attaches and prohibits the trial court from thereafter resentencing the defendant to a greater term. Penal Code section 1170, subdivision (d) does not provide a statutory bar to correcting an unauthorized sentence.

There was no error in the trial court failing to obtain a supplemental probation report, or it is not reasonably probable that a more favorable result would have been secured if a new probation report had been prepared. There are cases which require a new probation report after an appeal when there is discretion to alter the length of the defendant’s sentence, but this resentencing did not follow an appeal and there was no reason for the defendant to have a second bite at the sentencing apple. Further, People v. Dobbins (2005) 127 Cal.App.4th 176, 182, found that any such error would come under the harmless error standard. In this case, the court refamiliarized itself with the original probation report, listened to arguments in mitigation presented by defense counsel, and imposed the midterm sentence which had initially been intended.

A sensible interpretation of Penal Code section 1465.8 allows for imposition of the court security fee for each conviction to be imposed at the time of sentencing. A court security fee of $20 was imposed at the time of the 2007 sentencing. There was no appeal. The fee was imposed at the 2010 resentencing. The current appeal challenges the application of the fee when the fee was not enacted until after he was convicted. There was no violation of the prohibition against ex post facto laws.