Error and/or relief
The trial court erred in resentencing the defendant in his absence (without a valid waiver) in response to a letter from the Department of Corrections and Rehabilitation (CDCR) indicating an error in the sentencing.
First Holding:
CDCR notified the trial court of errors in sentencing. The court scheduled a resentencing hearing, but did not notify appellant in advance of this hearing. At the hearing, the court explained that the hearing to correct the errors in sentencing, that the prior abstract was incorrect, that the issue concerned improper imposition of sentence on multiple enhancements, and that it would resentence the defendant as if the court had never sentenced him before.
Defense counsel submitted without argument. The court then resentenced appellant to basically the same sentence as before, with the only change being that the indeterminate term of 15 years to life for the section 186.22 gang enhancement was stayed.
The defendant was not present at this hearing and had not properly waived his presence. A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, as well as by section 15 of article I of the California Constitution and by sections 977 and 1043.
Authority:
U.S. Const., Sixth Amend. and Fourteenth Amend.
Calif. Const., art. I
PEN 977
PEN 1043
People v. Concepcion (2008) 45 Cal.4th 77, 81
Second Holding:
This right to be present extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. The right to be present may be waived. However, this waiver must be expressly authorized by the defendant, or the defendant’s counsel must represent to the court the defendant has so waived.
Authority:
People v. Cutting (2019) 42 Cal.App.5th 344, 347–348
Third Holding:
The trial court clearly stated at the start of the hearing that it would resentence appellant as if we never sentenced him before. In a full resentencing, the court would have the option to revisit other portions of the sentence, including the decision to strike the defendant’s other prior strike conviction or make findings in the sentencing triad based on the mitigating circumstances. As in Cutting, we find the court erred in sentencing the defendant in his absence and without a valid waiver of his right to be present.
Authority:
People v. Cutting (2019) 42 Cal.App.5th 344, 348
Fourth Holding:
On the limited record before us, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. The sentence is vacated, and this matter is remanded to the trial court for a full resentencing.
Authority:
People v. Cutting (2019) 42 Cal.App.5th 344, 350 [reversing for a full resentencing under Chapman, noting that “the trial court may or may not have chosen to believe what [the defendant] might have said” regarding mitigating circumstances]
People v. Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and other possible developments are relevant to the trial court’s consideration upon resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4