Skip to content
Name: Double Jeopardy
Summary

The Court of Appeal agreed with the parties that the resentencing court erred in failing to stay one of appellant’s offenses pursuant to Penal Code section 654, increasing appellant’s restitution and parole revocation fines from the amount originally imposed, and imposing excess assessment fines.

A jury convicted appellant of burglary, assault with a deadly weapon, attempted murder, and participation in a criminal street gang on the theory he entered the victim’s home in order to commit assault or attempted murder. The attempted murder and gang convictions were reversed on appeal. At resentencing, the trial court imposed consecutive unstayed terms for the burglary and assault convictions. “When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes.” (People v. Islas (2012) 210 Cal.App.4th 116, 130; accord, People v. Hester (2000) 22 Cal.4th 290, 295; People v. Radil (1977) 76 Cal.App.3d 702, 713.) The court also imposed a $8,000 restitution fine and a stayed $8,000 parole revocation fine, which were more than the $4,000 fines imposed when appellant was originally sentenced. A trial court’s increase of these fines on remand for resentencing following a partially successful appeal violates California’s constitutional prohibition against double jeopardy. (See People v. Hanson (2000) 23 Cal.4th 355, 363.) Finally, the resentencing court imposed a $160 court operations assessment (Pen. Code, § 1465.8) and $120 criminal conviction assessment (Gov. Code, § 70373); the same amounts it imposed at the original sentencing hearing though two of appellant’s convictions had been reversed. In light of the reversal, the fines should have been reduced to $80 and $60 respectively. The Court of Appeal remanded the matter for the trial court to choose which of appellant’s offenses to stay under section 654, reduce the restitution and parole revocation fines to an amount equal to or less than the amount imposed at the original sentencing hearing, and correct the assessment fines.