Burbine

I.

Introduction

It is settled that a felony defendant’s original aggregate prison term cannot be increased on remand for resentencing following a partially successful appeal. (See, e.g., People v. Serrato (1973) 9 Cal.3d 753, 763-764 [ 109 Cal.Rptr. 65 , 512 P.2d 289 ], disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1 [ 189 Cal.Rptr. 855 , 659 P.2d 1144 ]; People v. Craig (1998) 66 Cal.App.4th 1444, 1447 [ 78 Cal.Rptr.2d 659 ].) This case presents the converse question: whether, after the reversal of one count of a felony conviction, the defendant’s aggregate prison term must be decreased upon resentencing.

We hold that on remand following the reversal of a felony count for which a subordinate term had been imposed, neither lack of jurisdiction nor res judicata bars the trial court from reconsidering its prior sentencing choices made under the normal rules of felony sentencing, including imposing a higher term for the principal, or base, term, so long as the total prison term for all affirmed counts does not exceed the original aggregate sentence.

We also reject appellant’s subsidiary contentions that the trial court: 1) abused its…