Filed 8/10/16 P. v. Harrison CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                       E064549

v.                                                                      (Super.Ct.No. FBA900492)

JAMIE ROZELLE HARRISON,                                                 OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,

Judge. Reversed with directions.

         Michael A. Ramos, District Attorney, Brent J. Schultze, Deputy District Attorney,

for Plaintiff and Appellant.

         Law Offices of Allen G. Weinberg and Allen G. Weinberg for Defendant and

Respondent.

         Following a jury trial, defendant and respondent Jamie Rozelle Harrison filed an

appeal. (People v. Harrison (Aug. 14, 2014, E057917 [nonpub. opn.].) This court

upheld the trial court’s denial of defendant’s motion to dismiss one or more of her strike

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convictions under People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, but found

other sentencing errors. We remanded the matter for resentencing. At resentencing,

defendant filed a second Romero motion, in light of People v. Vargas (2014) 59 Cal. 4th
635 (Vargas). The court granted it and struck one of defendant’s prior strike convictions.

The People now appeal the resentencing court’s order, arguing that it was made in excess

of the court’s jurisdiction. Specifically, the People contend that since this court upheld

the original court’s denial of the Romero motion, the resentencing court had no

jurisdiction to consider or grant another Romero motion. We agree with the People.

Therefore, we reverse the order striking one of defendant’s prior strike convictions under

Vargas, supra, 59 Cal. 4th 635 and remand for resentencing. In all other respects, we

affirm.

                               PROCEDURAL BACKGROUND1

          A jury found defendant guilty of first degree residential burglary (Pen. Code,

§ 459, count 1), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a),

count 3), and transportation of a controlled substance (Health & Saf. Code, § 11379,

subd. (a), count 5).2 In a bifurcated hearing, a trial court found true the allegations that

defendant had two prior strike convictions (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667,




          1
          By order dated January 8, 2016, we granted requests for this court to take
judicial notice of the record in People v. Harrison, supra, E057917. The procedural
background is taken from this court’s opinion in that case, unless otherwise noted.

          2   Count 4 was dismissed, and defendant was acquitted of count 2.


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subds. (b)-(i)),3 two prior serious felony convictions (§ 667, subd. (a)(1)), and that she

had served one prior prison term (§ 667.5, subd. (b)). Defendant’s two prior strike

convictions were for robbery (§ 211) and carjacking (§ 215, subd. (a)), both arising from

the same case, case No. FBA007527.

         Before defendant’s first sentencing in 2012, she filed a Romero motion in the trial

court, which the court denied. The court proceeded to sentence defendant to a total term

of 41 years four months to life. This sentence consisted of the following: on count 1, the

court sentenced defendant to 36 years to life in prison, consisting of 25 years to life,

pursuant to the three strikes law, plus two consecutive five-year prior serious felony

enhancements (§ 667, subd. (a)(1)), and a consecutive one-year prison prior allegation

(§ 667.5, subd. (b)). On count 3, the court sentenced her to one-third the midterm of two

years (eight months), doubled because of the strikes, plus one year for the prison prior

(§ 667.5, subd. (b)), for two years four months. On count 5, the court sentenced

defendant to one-third the midterm of three years (one year), doubled because of the

strikes, plus one year for the prison prior allegation (§ 667.5, subd. (b)), for three years.

         Defendant filed an appeal and raised a number of sentencing issues, including that

the trial court abused its discretion by refusing to strike one or both of her prior strike

convictions. When this court received and considered the briefs on appeal, the case of

Vargas, supra, 59 Cal. 4th 635 had not yet been decided. The Supreme Court decided

Vargas on July 10, 2014. (Vargas, supra, 59 Cal. 4th 635.)

         3   All further statutory references will be to the Penal Code, unless otherwise
noted.


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       On August 14, 2014, this court affirmed the trial court’s denial of the Romero

motion, but found that the court had made other errors. Thus, we remanded the matter to

the trial court for resentencing with directions.

       On September 2, 2014, defendant filed a petition for rehearing in this court,

requesting that a rehearing be granted in light of the Vargas decision. This court denied

the petition for rehearing. Defendant then filed a petition for review with the California

Supreme Court. The Supreme Court denied that petition on November 12, 2014. Its

order read: “Petition for review denied without prejudice to filing a petition for a writ of

habeas corpus in the superior court. (See People v. Vargas (2014) 59 Cal. 4th 635, 649.)”

(People v. Harrison, review denied Nov. 12, 2014, S221427.)

       Following remittitur, the trial court had extensive discussions with the parties off

the record on how to proceed. The next hearing on February 27, 2015, was held before a

different judge. Defense counsel stated that the parties had already had discussions with

the previous judge, and that that judge “wanted to hang on to the case to do sentencing.”

Defense counsel said he was going to submit a brief “on a recent case that came down

that may affect [sic] earlier ruling with regard to the three strikes.” He then asked for a

further hearing. The court asked what the nature of the hearing was, and defense counsel

stated it was on remittitur for sentencing issues. He added that the Court of Appeal (this

court) told defendant it would not reconsider the three strikes issue, but said she “could

bring it by way of special writ to the Superior Court.” Defense counsel then stated:

“When I mentioned that to the [previous] Judge, he said [he would] probably treat all

issues before him.” The court continued the hearing.


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       On March 23, 2015, defendant filed a Romero motion to strike a prior strike

conviction, relying on Vargas, supra, 59 Cal. 4th 635. Defendant attached copies of the

police and probation reports relating to the underlying convictions. The People filed an

opposition to defendant’s motion, arguing that the trial court did not have jurisdiction to

consider the motion.

       The court held a hearing on July 31, 2015, and provided the parties with its

tentative ruling, in which it determined that Vargas, supra, 59 Cal. 4th 635 applied, and

that defendant should be resentenced as a “second striker.” At the outset of the hearing,

the court noted that the People argued it should not be addressing the Vargas issue, and it

stated, “From a purely technical procedural standpoint, the People may well be right.”

The court stated that the case was previously briefed and argued before Vargas was

decided; thus, the issue was not raised at the appellate level. The court then stated that if

defendant was to file a writ, it would ultimately be sent back to the trial court, “and we

would be assembling the same group of people presently before this Court to deal with

that issue.” The court decided that, rather than “drag[ging] the matter on unnecessarily,”

it was going to resolve the issue that day. The People opposed the court’s decision, but

the court proceeded. It began by stating that Vargas held that two prior strikes could not

be based upon the same act. In Vargas, the defendant had convictions for robbery and

carjacking, and the robbery “was the same act in it’s [sic] entirety, the carjacking,” since

the only thing taken was the vehicle. The court noted that the instant case was different

in that the defendants robbed the victims of personal property inside their house, and then

went outside and stole a car. However, the court stated that the crimes “ha[d] an act in


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common, the use of violence,” which was an element of both robbery and carjacking.

After some discussion with counsel, the court again stated that the two crimes shared the

same act, which was “the violence and threats against both victims.” The court then

noted that although the robbery and carjacking shared an act in common, they both

involved separate acts, as well—the taking of the personal property and the taking of the

car. Nonetheless, it concluded that Vargas applied here and ordered one of the prior

strikes to be stricken. The court went on to reduce defendant from being a “third striker,

subject to a life sentence, to a second striker, subject to having her sentence doubled.”

The court sentenced her as follows: on count 1, the court imposed six years, doubled

because of the prior strike; on count 3, the court imposed the midterm of two years,

doubled to four because of the strike, but stayed under section 654; on count 5, the court

imposed one year, doubled because of the strike, plus, a five-year enhancement under

section 667. The court imposed a total term of 19 years in state prison and awarded

3,382 days of credit for time served.

       The People filed a timely notice of appeal on September 25, 2015.

                                        ANALYSIS

  I. The Resentencing Court Had No Jurisdiction to Grant the Second Romero Motion

       The People argue that the trial court acted beyond its jurisdiction in considering

defendant’s Romero motion regarding the Vargas issue on remand. The People assert

that defendant should have raised the issue by filing a petition for a writ of habeas corpus,

as directed by the California Supreme Court. We agree.




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       In our prior decision, this court upheld the original sentencing court’s denial of

defendant’s Romero motion. (People v. Harrison, supra, E057917.) However, we found

other errors that needed to be corrected and remanded the matter for resentencing.

Defendant then filed a petition for rehearing, which we denied. Subsequently, the

California Supreme Court denied defendant’s petition for review. Nonetheless, at a

hearing on the remittitur, the resentencing court decided it was going to address and

resolve the issue of whether Vargas applied, over the People’s opposition. The court

erred in doing so. Once this court returned jurisdiction to the trial court via remittitur, the

trial court only had limited jurisdiction over the case. “After the remittitur ‘the appellate

court has no further jurisdiction of the appeal or of the proceedings thereon, and all

orders necessary to carry the judgment into effect shall be made by the court to which the

certificate is remitted.’ [Citation.] Thus, the trial court is revested with jurisdiction of

the case, but only to carry out the judgment as ordered by the appellate court.” (People

v. Dutra (2006) 145 Cal. App. 4th 1359, 1366 (Dutra).) In other words, “ ‘[w]here a

reviewing court reverses a judgment with directions . . . the trial court is bound by the

directions given and has no authority to retry any other issue or to make any other

findings. Its authority is limited wholly and solely to following the directions of the

reviewing court.’” (Ibid., emphasis added.)

       Here, our opinion enumerated the items to be corrected at resentencing. (People v.

Harrison, supra, E057917, p. 20.) We did not order reconsideration of the Romero issue.

To the contrary, in our opinion, we reviewed and affirmed the trial court’s denial of

defendant’s Romero motion. Although defendant relied upon the recent case of Vargas,
7
supra, 59 Cal. 4th 635, when making her motion to dismiss a strike at resentencing, she

was not permitted to bring a second Romero motion. Moreover, the resentencing court

had no jurisdiction or authority to consider it. “[W]hether the trial court believed our

decision was right or wrong, or had been impaired by subsequent decisions, it was bound

to follow the remittitur.” (Dutra, supra, 145 Cal.App.4th at p. 1367.) The resentencing

court’s authority was limited solely to following this court’s directions. (Ibid.)

       Defendant simply claims that “[n]othing in this court’s order remanding the matter

for resentencing or the Supreme Court’s denial of review so limited the trial court.”

However, she fails to address or analyze the law regarding adherence to a remittitur.

Defendant does rely on one case in support of the trial court’s actions herein: People v.

Hill (1986) 185 Cal. App. 3d 831, 834 (Hill). However, that case is inapposite because it

fails to discuss the rule that a trial court must obey a remittitur. Moreover, Hill concerned

resentencing on an aggregate term. The defendant in that case asserted that the trial

court’s initial sentence erroneously imposed a subordinate consecutive term on a certain

count, and for that reason the Department of Corrections recommended recall and

resentencing. On appeal, the defendant argued that the trial court should have modified

the erroneous portion of the sentence only, rather than resentencing him entirely. (Id. at

p. 833.) However, the trial court resentenced him under section 1170, subdivision (d),

which provides that “a trial court, at any time upon the recommendation of the Director

of Corrections, may recall a sentence and commitment and ‘resentence the defendant in

the same manner as if he or she had not previously been sentenced, provided the new

sentence, if any, is no greater than the initial sentence.’” (Hill, at p. 834.) Thus, since the


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defendant’s aggregate prison term had to be viewed as interdependent components, the

invalidity of some of those components infected the entire sentence. (Ibid.) The

sentencing issue in the instant case does not concern section 1170, subdivision (d).

Moreover, Hill in no way supports defendant’s claim that the trial court was permitted to

not obey the remittitur.

       Furthermore, we note that when the Supreme Court denied defendant’s petition for

review, it did so “without prejudice to filing a petition for a writ of habeas corpus in the

superior court.” (People v. Harrison, review denied Nov. 12, 2014, S221427.) Thus,

defendant ignored the Supreme Court’s direction to file a petition for a writ of habeas

corpus.

       Ultimately, the resentencing court had no jurisdiction to consider defendant’s

second Romero motion.

   II. The Resentencing Court Erred in Granting Defendant’s Second Romero Motion

       The trial court determined that, since the matter had been remanded for

resentencing, it was appropriate for it to consider the Vargas issue, rather than exalting

form over substance and forcing defendant to file a petition for writ of habeas corpus. It

reasoned that if defendant were to file a writ petition in the trial court, it would ultimately

be sent back to the same court anyway. Assuming arguendo the trial court was correct,

and in the interest of judicial economy, we will consider the merits of the court’s ruling

on defendant’s second Romero motion. We conclude that the court erred in granting the

motion.




                                               9
       A. The Court Erred in Striking One of Defendant’s Strikes Pursuant to Vargas

       The People argue that the resentencing court erred in granting defendant’s Romero

motion under Vargas, supra, 59 Cal. 4th 635. Defendant contends that the court correctly

applied Vargas to her case. We conclude that Vargas does not apply here.

       In Vargas, supra, 59 Cal. 4th 635, the Supreme Court held that when two prior

strike convictions are based on the same act, the trial court is required to dismiss one of

them. (Id. at p. 645.) There, the defendant had two prior strikes—carjacking and

robbery—which were based on the same act of forcibly taking the victim’s car. (Ibid.)

The court noted that the two strikes were “based on the same act, committed at the same

time, against the same victim.” (Id. at p. 638.) The trial court used both convictions to

sentence the defendant to a 25-year-to-life prison sentence. The Supreme Court

determined that treating such a defendant “as a third strike offender[] was inconsistent

with the intent underlying both the legislative and initiative versions of the Three Strikes

law.” (Id. at p. 645.) The Court explained “the voting public would reasonably have

understood the ‘Three Strikes’ baseball metaphor to mean that a person would have three

chances—three swings of the bat, if you will—before the harshest penalty could be

imposed. The public also would have understood that no one can be called for two

strikes on just one swing.” (Id. at p. 646.)

       The facts of defendant’s prior convictions are distinguishable from the scenario

considered in Vargas. Here, the parties stipulated that the court could consider the police

reports as a factual basis for reaching a conclusion on the Vargas issue. The police

reports showed that defendant and two cohorts committed a residential robbery. Lonny


                                               10
M. reported that Melinda B. had been stabbed in the arm, that he had been assaulted with

a candle and was bleeding, and that the suspects took his truck. The police report

indicated that there were five people in the home when defendant and her cohorts

entered. Lonny M. further reported that he and Melinda B. were sleeping in their

bedroom when two of the suspects entered their bedroom. One of them held a gun to his

head and demanded to know where he kept his money. Defendant asked Melinda B. and

Lonny M. which one of their cars was working, and Melinda B. said that only Lonny

M.’s truck worked. Defendant threatened to start “popping off” Melinda B.’s children if

she was lying. One of the suspects went outside to start the truck. The other suspect had

Lonny M. and Melinda B. put a PlayStation 2, DVD player, and a stereo receiver into a

pillowcase. Defendant continued to demand money, grabbed Melinda B. by the hair, and

started punching her in the face. The suspects then loaded the PlayStation, stereo, etc.

into the back of Lonny M.’s truck and left. Defendant also stole some of Melinda B.’s

jewelry.

       After extensively reviewing the police reports and hearing arguments from

counsel, the court found that at least two victims were assaulted (Lonny M. and Melinda

B.), and then made the “factual finding” that the force used to effectuate the robbery (the

taking of personal property) was the same force used to effectuate the carjacking (the

taking of the truck). The court stated that both the robbery and the carjacking involved

the same act—the use of force against the victims. The court acknowledged that the

violence itself did not constitute the robbery or the carjacking, and stated that “not all of

the acts of the two crimes were common.” The court concluded that the violence and


                                              11
threats against both victims was “the same act,” and that, under Vargas, the same act

could not be used to support two separate prior strikes. Thus, the court found that Vargas

applied here and struck one of defendant’s prior strikes. It then resentenced defendant as

a “second striker” to a total of 19 years in state prison.

       Vargas is distinguishable from the instant case because there was more than one

act here. In Vargas, the defendant’s robbery and carjacking convictions “were based on

the same act of taking the victim’s car by force.” (Vargas, supra, 59 Cal.4th at p. 640,

italics added.) In contrast, the court here acknowledged, “we have two crimes that have

part of the act in common, but then each involves separate acts.” (Italics added.)

“Robbery is the felonious taking of personal property in the possession of another . . .

accomplished by means of force or fear.” (§ 211.) “ ‘Carjacking’ is the felonious taking

of a motor vehicle in the possession of another . . . accomplished by means of force or

fear.” (§ 215, subd. (a).) The robbery here involved the taking of personal property from

inside the house, and the carjacking involved the taking of the car outside the house. The

force used was simply the means by which the takings were accomplished. Thus, Vargas

is not applicable.

       Furthermore, the record shows, and the resentencing court acknowledged, that

there were at least two victims here. It is clear the Vargas decision applies where a trial

court is faced with prior convictions that arise out of a single act against a single victim.

(Vargas, supra, 59 Cal.4th at p. 638.)

       We note defendant’s argument that she was not convicted of crimes against more

than one victim, as she pled to counts 1 and 2 of the felony complaint filed on November


                                              12
20, 2003, which alleged only Melinda B. as the victim in each count. However, in

defendant’s motion under Romero and Vargas, she stated that her plea to the prior

convictions was entered prior to any preliminary hearing, and that it was assumed that the

parties stipulated the court could consider the police reports as the factual basis.

Accordingly, the parties stipulated that the resentencing court could consider the police

reports as a factual basis for reaching a conclusion on the Vargas issue. Regardless of the

pleadings, the facts showed that there was more than one victim. The police report stated

that force was used against both Melinda B. and Lonny M. Furthermore, the jewelry

stolen belonged to Melinda B., and the truck taken belonged to Lonny M.

       In sum, the court erred in determining that defendant’s two prior strike convictions

arose from a single act. Moreover, since there was more than one victim, Vargas did not

apply. As such, the court erred in striking one of defendant’s prior strike convictions

pursuant to Vargas. The court’s resentencing order striking defendant’s prior strike

should be reversed. The matter is remanded for the court to resentence defendant under

the three strikes law, and to ensure that the sentence still conforms with our previous

opinion in People v. Harrison (Aug. 14, 2014, E057917 [nonpub. opn.]).




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                                      DISPOSITION

       We reverse the trial court’s order striking defendant’s prior strike conviction under

People v. Vargas (2014) 59 Cal. 4th 635. We order a limited remand for the trial court to

resentence defendant under the three strikes law and ensure that the sentence conforms

with our previous opinion in People v. Harrison (Aug. 14, 2014, E057917 [nonpub.

opn.]). In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               RAMIREZ
                                                                                       P. J.


We concur:


MILLER
                           J.


CODRINGTON
                           J.




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