Does the Attorney General have any authority to issue a harsher sentence on remand for resentencing where the original sentence was unauthorized?

California, United States of America


The following excerpt is from People v. Hart, G043668, Super. Ct. No. 05CF3395 (Cal. App. 2011):

Generally, the rule against imposition of a harsher sentence on remand for resentencing due to double jeopardy concerns does not apply where the original sentence is unauthorized. (People v. Serrato (1973) 9 Cal.3d 753, 764-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.) The Attorney General cites our prior opinion, which concluded the court's original sentence striking the firearm enhancements relating to counts 3,8, 18, 22, 26, 33, and 34 was unauthorized because it was forbidden by Penal Code section 12022.53, subdivision (h) (all further statutory references are to this code, unless otherwise stated). "Examples of unauthorized sentences [that do not bar the imposition of a more severe sentence on remand] include . . . the failure to . . . impose an enhancement [citations]." (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) Defendant does not dispute "portions of [his] original sentence were unauthorized."

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