What is the Serrato Exception to Double Jeopardy?

In August 2020, a San Francisco County Superior Court jury found Terrell Trammel guilty of burglary, making a criminal threat to M.T. (his former girlfriend), vandalism, three counts of domestic violence, and kidnapping.

The jury also found Mr. Trammel not guilty of three counts of assault by means likely to cause great bodily injury, but found him guilty of the lesser included offense of misdemeanor assault on each of three charges.

The judge sentenced Mr. Trammel to twelve years in state prison based on the upper term of eight years for the principal count of kidnapping, a consecutive term of 16 months for burglary (one third the four-year midterm sentence), a consecutive term of 8 months for criminal threats (one third the mid-term of two years) and a consecutive term of two years for one count of domestic violence. The judge also sentenced him to one year for an arming enhancement. The judge also imposed concurrent three year terms for two of the other domestic violence convictions and concurrent time-served sentences for the three misdemeanor assault convictions.

On appeal, the First Appellate District concluded that the judge erred under Penal Code § 654 by imposing separate punishment for both domestic violence and simple assault related out of the same incident in two instances (separate domestic violence incidents in June 2017 and October 2019). The case was then remanded for resentencing.

On remand, the trial court judge conducted a full resentencing hearing on November 23, 2022 and took into account the many new sentencing laws that took effect January 1, 2022. The judge then corrected his § 654 errors and sentenced Mr. Trammel to 12 years and four months.

The extra four months arose by the trial court changing an eight month term it originally imposed for criminal threats with a consecutive term of one year on the kidnapping conviction, which the judge reduced from three years and made consecutive instead of concurrent.

Mr. Trammel then appealed this new sentence as violating Double Jeopardy as set forth in Article I, section 13 of the California Constitution. Mr. Trammel then demanded another full resentencing before a different judge, as Mr. Trammel believed the judge was vindictive.

The First Appellate District agreed with Mr. Trammel that the new sentence did violate double jeopardy principles, but denied his request for another full resentencing before a new judge because the appellate court examined the record and saw that the judge engaged in a full resentencing on remand already and there was no evidence of vindictiveness.

The First Appellate District explained that for double jeopardy to be violated, “a greater sentence may not be imposed upon remand after an appeal.” However, under the Serrato exception (People v. Serrato (1973) 9 Cal. 3d 753), “an unauthorized sentence ‘is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.” Serrato, supra, at 764. “[A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case.” People v. Scott (1994) 9 Cal. 4th 331, 354.

Here, the First Appellate District explained, the Serrato exception to double jeopardy did not apply because, unlike in previous cases where such an exception applied, the unauthorized sentence was not erroneously harsh or neutral rather than lenient.

The appellate court also found aspects of Serrato troubling because the distinction made by that court between correcting sentencing illegalities and other errors seemed dubious when viewed in the context of California’s double jeopardy precedent.

The appellate court also found support for their conclusion that Serrato did not apply from previous California Supreme Court decisions like People v. Collins (1978) 21 Cal. 3d 208, at 214-216, which found that a defendant’s right against double jeopardy must be narrowly impacted when necessary to protect the People’s right to a proper sentence.

In reaching this ruling, the First Appellate District presented a scholarly review of California and federal law on double jeopardy. We recommend reading this discussion if one believes he or she has a case with a possible double jeopardy violation.