In re Guiomar

• Decision Date: 07 November 2016
• Docket Number: H043114
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE John Manuel GUIOMAR, on Habeas Corpus.

5 Cal.App.5th 265

209 Cal.Rptr.3d 797

IN RE John Manuel GUIOMAR, on Habeas Corpus.

H043114

Court of Appeal, Sixth District, California.

Filed November 7, 2016

Jonathan Grossman, Sixth District Appellate Program, for Petitioner.

Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Amit Arun Kurlekar, Deputy Attorney General, for Respondent.

BAMATTRE–MANOUKIAN

, J.

I. INTRODUCTION

In March of 2014, petitioner John Manuel Guiomar entered into a plea agreement that resolved four cases and resulted in four convictions (one in each case). The trial court imposed a six-year aggregate sentence, comprised of a four-year term for robbery, a consecutive 16–month term for burglary, a consecutive eight-month term for failure to appear on a felony charge, and a concurrent two-year term for possession of a controlled substance.

In November of 2014, the electorate passed Proposition 47, which reclassified certain felony drug and theft related offenses as misdemeanors, including possession of a controlled substance and certain burglary offenses. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.)

In April of 2015, petitioner filed a petition for recall of sentence under Proposition 47. (See § 1170.18, subd. (a).) The trial court granted the petition as to petitioner's convictions of burglary and possession of a controlled substance, designating those offenses as misdemeanors. The trial court then resentenced petitioner to another six-year aggregate term by imposing a six-year term for the robbery and a concurrent four-year term for the failure to appear.

In his petition for writ of habeas corpus, petitioner contends that the trial court lacked jurisdiction to increase the terms for his robbery and failure to appear convictions. Petitioner also contends the trial court erred by failing to vacate his conviction for failure to appear on a felony charge, because the underlying felony offense was the possession of a controlled substance count, which had been reduced to a misdemeanor. Additionally, petitioner contends he received ineffective assistance of counsel at his resentencing hearing, because his counsel did not object to the increased terms for the robbery and failure to appear convictions.

In a supplemental petition for writ of habeas corpus, petitioner contends he was denied the right to be present at his resentencing hearing and that his trial counsel was ineffective for failing to object to his absence at the resentencing hearing. Petitioner also contends that he received an unauthorized second-strike sentence for his conviction of failure to appear on a felony charge, because the trial court had dismissed the strike allegation as to that count.

For reasons that we will explain, we reach the following conclusions. First, when a defendant's aggregate sentence includes multiple felony offenses, some of which are reduced to misdemeanors pursuant to Proposition 47, a trial court may resentence the defendant to increased terms for the remaining felony convictions, so long as the new aggregate sentence does not exceed the original aggregate sentence. Second, when a defendant is convicted of failure to appear on a felony charge, but the underlying felony charge is later reduced to a misdemeanor pursuant to Proposition 47, the trial court is not required to vacate the failure to appear conviction. Third, a defendant has the right to be present at a Proposition 47 resentencing hearing, but petitioner was not prejudiced in this case. Fourth, the trial court in this case imposed an unauthorized second-strike sentence for defendant's conviction of failure to appear on a felony charge. We will therefore grant habeas relief by modifying petitioner's sentence.

II. BACKGROUND

In March of 2014, petitioner entered into a plea agreement that resolved four cases and resulted in four convictions (one in each case): (1) second degree robbery (Pen. Code, § 211

;¹ case No. SS131590A), (2) burglary (§ 459; case No. SS131649A), (3) failure to appear on a felony charge (§ 1320.5; case No. SS131650A), and (4) possession of a controlled substance (Health & Saf. Code, § 11350 ; case No. SS130616A).

The trial court imposed a six-year aggregate sentence pursuant to the plea agreement. The aggregate sentence was comprised of a four-year term for the robbery (the two-year midterm, doubled due to a prior strike), a consecutive 16–month term for the burglary (one-third of the midterm, doubled due to a prior strike), a consecutive eight-month term for the failure to appear on a felony charge (one-third of the midterm), and a concurrent two-year term (the midterm) for the possession of a controlled substance.

In April of 2015, petitioner filed a petition for resentencing under Proposition 47, indicating he was seeking reduction of his burglary conviction in case No. SS131649A. (See § 1170.18, subd. (a).)

At a hearing on May 6, 2015, at which petitioner was not present but was represented by counsel, the trial court granted the petition as to both the burglary and the possession of a controlled substance convictions, designating those offenses as misdemeanors and dismissing the strike allegation as to the burglary. The clerk's minutes reflect that the trial court then resentenced petitioner “pursuant to stipulation,” imposing a six-year term for the robbery and a concurrent four-year term for the failure to appear.

On October 21, 2015, petitioner filed a petition for writ of habeas in the trial court, raising sentencing issues. The trial court denied the petition, finding that petitioner had “consented, as a condition of his plea agreements in both cases, to waive his right to an appeal or any post-conviction writ review.”² Petitioner then filed a petition for writ of habeas corpus in this court in pro per, followed by a supplemental petition by counsel which raised additional issues, and we issued an order to show cause as to each petition.

III. DISCUSSION

A. Jurisdiction to Resentence on Robbery and Failure to Appear Counts

Petitioner argues that when his convictions of burglary and possession of a controlled substance were reduced to misdemeanors pursuant to Proposition 47, the trial court was required to delete those terms from his six-year aggregate sentence, which would have reduced his sentence by 16 months. Instead, the trial court resentenced petitioner to the same aggregate six-year term it had originally imposed, by imposing a six-year term for the robbery instead of the original four-year term. Petitioner contends the trial court had no jurisdiction to resentence him on counts unaffected by the section 1170.18 petition, and that its failure to reduce his aggregate term is inconsistent with the purpose of Proposition 47.

1. Estoppel

The Attorney General argues that petitioner should be estopped from challenging his sentence because he stipulated to the six-year robbery term. However, petitioner was not present at the resentencing hearing, and he contends his counsel was ineffective for failing to object when the trial court resentenced petitioner without reducing his aggregate sentence. Thus, in addressing petitioner's ineffective assistance of counsel claim, we would need to reach the merits of his claim that the trial court lacked jurisdiction to increase the terms for convictions not affected by the granting of his petition for recall of sentence. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1125–1126, 36 Cal.Rptr.2d 235, 885 P.2d 1

[reaching merits of waived issue because of defendant's claim that trial counsel was ineffective for failing to object].)

Further, as petitioner points out in his traverse, it is unclear whether the phrase “pursuant to stipulation” referenced in the clerk's minutes referred to the original stipulated sentence or a new stipulation entered by petitioner's counsel at the resentencing hearing. If the phrase “pursuant to stipulation” referred to the original stipulated sentence, petitioner is not barred from seeking modification of that sentence, because “by its plain language section 1170.18 applies to convictions by trial or plea.” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 651, 186 Cal.Rptr.3d 620

; see ibid . [“the trial court erred by engrafting a plea agreement disqualifier into” section 1170.18]; Doe v. Harris (2013) 57 Cal.4th 64, 74, 158 Cal.Rptr.3d 290, 302 P.3d 598 [“the terms of the plea agreement can be affected by changes in the law”].) We proceed to consider the merits of petitioner's claim.

2. Analysis

Two recent cases have held that a trial court has jurisdiction to resentence in a multiple felony count case following the granting of a section 1170.18 petition as to only some of the counts: People v. Sellner (2015) 240 Cal.App.4th 699, 701–702, 192 Cal.Rptr.3d 836

(Sellner ) and People v. Roach (2016) 247 Cal.App.4th 178, 183, 202 Cal.Rptr.3d 1 (Roach ). (See also People v. Cortez (2016) 3 Cal.App.5th 308, 317, 207 Cal.Rptr.3d 510 [trial court may “revisit all of its misdemeanor sentencing decisions” after granting a section 1170.18 petition]; People v. Rouse (2016) 245 Cal.App.4th 292, 300, 199 Cal.Rptr.3d 360.)

In Sellner

, the defendant was originally sentenced on two counts in two separate cases. (Sellner, supra, 240 Cal.App.4th at p. 701, 192 Cal.Rptr.3d 836.) Her sentence included a principal term of three years for the first count and a consecutive eight-month subordinate term (calculated at one-third of the two-year midterm) for the second count. (Ibid.

) The trial court granted the defendant's Proposition 47 petition for resentencing as to the conviction underlying the principal term, reduced that conviction to a misdemeanor, then resentenced the defendant for the second count, increasing the sentence on that count from an eight-month subordinate term to a two-year midterm. (Sellner, supra, at p. 701, 192 Cal.Rptr.3d...