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Name: People v. Torres
Case #: F053132
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/16/2008

The principles of double jeopardy and the mandate of Penal Code section 1170, subdivision (d) prohibit imposition of a sentence greater than the original where the original sentence was not a legally unauthorized lenient sentence. Appellant, a 27-year-old man with no prior record, had come to the courthouse in response to a jury summons. While sitting in the hallway across from a witness called for a gang-related hearing, appellant exchanged words with the witness and, according to the witness, threatened him. Appellant was convicted by jury trial of attempting to dissuade a witness and issuing a criminal threat, as well as gang enhancements as to each offense. The gang enhancement on the dissuading a witness offense carries a prison term of seven years to life. The enhancement on the criminal threat offense is an additional five years. The probation department recommended probation, noting the lack of prior record, the nature of the offense, and appellant’s willingness to comply with terms and conditions of probation. Appellant argued that probation be granted or at the most, a seven-year prison term, and the prosecution argued for the seven-year-to life sentence. Stating that it wanted to impose a twelve-year term, the court conceded it did not have the authority and instead offered appellant an aggravated sentence of seven years for the criminal threat, the gang enhancement to be stricken, with the proviso that if appellant did not agree to the upper term, it would not strike the enhancements. Appellant agreed to the upper term, the court struck both enhancements, and sentenced him to seven years for criminal threats and stayed the mid term for the dissuading a witness. More than a year later, the Department of Corrections wrote the court and informed it that the criminal threat offense did not provide for a seven-year prison term, as the triad was 16 months, two years, or three years. The court then resentenced appellant to a term of seven years to life for the witness intimidation. The appellate court noted that appellant’s sentence was not a legally unauthorized lenient sentence – the unauthorized component portion of the sentence was more severe than that authorized. Accordingly, double jeopardy and Penal Code section 1170, subdivision (d) prohibited a greater sentence being imposed. (See People v. Mustafaa (1994) 22 Cal.App.4th 1305.) The court remanded for resentencing and noted that the seven year sentence could be lawfully obtained by imposing a mid term of two years for the criminal threats plus the five-year gang enhancement.