Craig

Certified For Partial Publication. [*]

POCHE, Associate Justice.

In this case we must decide whether a criminal defendant who has successfully appealed from a prior conviction may, upon retrial, be sentenced to a greater term for the offense, provided that his aggregate term, which includes time for enhancements, does not exceed that imposed at his initial sentencing.

This appeal is defendant's second. In 1994 defendant was convicted after jury trial of first degree burglary. (Pen.Code, § 459.) He was sentenced to twenty-seven years: the mitigated term of two years for the burglary and five years for each of five prior serious felony convictions (§ 667). We reversed that conviction in 1996 because evidence of his spontaneous utterances at the scene of the crime was improperly excluded. [1]

After retrial before the same judge defendant was found guilty once more of first degree burglary. Although five serious felony priors were again alleged, only three of them were found true at the second trial. Defendant was sentenced to a term of nineteen years: the midterm of four years for the burglary and five years for each of the three prior serious felony convictions.

At the 1994…