People v. Rouse

Decision Date29 February 2016
Docket NumberB261503
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Gary Lamont ROUSE, Defendant and Appellant.

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.


, J.

We are asked to consider whether defendant and appellant Gary Lamont Rouse was denied a right to counsel at the resentencing hearing held on his petition brought pursuant to Penal Code section 1170.18

(hereafter section 1170.18 ). Section 1170.18 was enacted as part of the Safe Neighborhoods and Schools Act, adopted by California voters in November 2014 as Proposition 47 (Proposition 47). Proposition 47 reclassified certain drug and theft-related offenses that were felonies or "wobblers" as misdemeanors, and provided a resentencing process for individuals who would have been entitled to lesser punishment if their offenses had been committed after its enactment. Section 1170.18 provides two different procedures depending on whether the individual seeking relief under Proposition 47 is still serving, or has already completed, his or her felony sentence. As relevant here, subdivision (a) of section 1170.18 provides that a person "currently serving" a felony sentence for an offense reclassified as a misdemeanor by Proposition 47 may petition for a recall of that sentence and request resentencing.

In November 2014, defendant was serving a five-year state prison term imposed in February 2012 following his conviction of four theft-related felonies, including a count for second degree commercial burglary. Penal Code section 459.5

, added by Proposition 47, reclassified the theft of property valued at less than $950 as misdemeanor shoplifting. Defendant filed a petition pursuant to section 1170.18, subdivision (a) seeking to have his felony burglary conviction reclassified as misdemeanor shoplifting on the grounds that it involved an attempted theft of no more than $200. The trial court granted defendant's petition and resentenced defendant on all counts, including the non-Proposition 47 counts, to a five-year prison term. The resentencing hearing was held with counsel for the People in attendance, but without the presence of defendant or any counsel on his behalf. Defendant contends he was entitled to have counsel present at the resentencing hearing to protect his substantial rights.

We conclude defendant was entitled to the assistance of counsel at the resentencing hearing on his petition under section 1170.18, subdivision (a)

, and therefore reverse and remand for a new resentencing hearing.


In January 2012, defendant pled guilty to four felony counts: identity theft (Pen.Code, § 530.5, subd. (a)

; count 1), second degree commercial burglary (§ 459; count 2), and forgery/counterfeit seal (§ 472; counts 3 & 4). Defendant also admitted he had suffered two prior qualifying strikes in 1989 and 1990 within the meaning of the "Three Strikes law" (§§ 667, 1170.12), and had served two prior prison terms within the meaning of section 667.5, subdivision (b).

The original sentencing hearing was held February 1, 2012. The court granted, in part, defendant's motion brought pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628

(Romero ). The court struck the older of defendant's two prior strikes (a 1989 robbery conviction), finding that imposition of a life sentence would be "clearly disproportionate" to the underlying charged crimes. The court also determined that only one of the prior prison term allegations was appropriately considered for sentencing. Defendant was sentenced to state prison for five years calculated as follows: the court selected count 2 (burglary) as the base count and imposed a two-year midterm, doubled due to the one qualifying strike, plus one year for the prior prison term allegation. The court awarded defendant 224 days of custody credits, and imposed various fines and fees.

As to counts 1, 3 and 4, the court imposed a two-year midterm as to each count and stayed each of those sentences pursuant to Penal Code section 654


On November 24, 2014, defendant filed, in propria persona, a petition pursuant to section 1170.18, subdivision (a)

. Defendant argued his sentence on count 2 for second degree commercial burglary should be recalled, and he should be resentenced for misdemeanor shoplifting as the facts underlying the burglary charge involved the attempted theft of just $200, well below the $950 statutory minimum for felony burglary. In his declaration attached to his petition, defendant stated that "[i]n an effort to save the State of California from the additional unnecessary financial burden of transporting defendant to court, defendant hereby waives his right to be present for sentencing."

A hearing was held on defendant's petition on December 26, 2014. The court stated at the outset of the hearing that defendant was "not present before the court" and was "not represented by counsel." However, a deputy district attorney appeared for the People.

The court found defendant's petition to be "well taken" and allowed the People to amend count 2 by interlineation to charge a misdemeanor violation of Penal Code section 459.5

. The court granted defendant's petition and vacated the original sentence. In resentencing, the court again imposed a prison term of five years, selecting count 1 (identity theft) as the new base term and imposing a two-year midterm, doubled due to defendant's prior strike. The court also imposed a consecutive one-year enhancement for the prior prison term allegation. As to counts 3 and 4, the court imposed and stayed a two-year midterm as to each count. On count 2, the court imposed and stayed a one-year county jail term. The court imposed the same fines and fees and recalculated defendant's custody credits.

This appeal followed.


The parties did not cite, nor has our research disclosed, any case addressing whether a right to counsel attaches to a resentencing hearing held on a petition brought pursuant to section 1170.18, subdivision (a)

, which provides, in relevant part that "[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor ... had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing."

Defendant argues the resentencing hearing was a critical stage in the criminal process at which his substantial rights were at stake, thus mandating the assistance of counsel. Respondent argues that a section 1170.18

petition is a "narrowly circumscribed" postconviction remedy beyond the scope of the Sixth Amendment. Respondent contends such a petition raises only the specter of a downward sentence modification to an otherwise valid sentence and therefore no right to counsel attaches.

"It is beyond dispute that [t]he Sixth Amendment safeguards to an accused who faces incarceration the right to counsel at all critical stages of the criminal process.’ [Citations.]" (Marshall v. Rodgers (2013) ––– U.S. ––––, 133 S.Ct. 1446, 1449, 185 L.Ed.2d 540

; People v. Doolin (2009) 45 Cal.4th 390, 417, 87 Cal.Rptr.3d 209, 198 P.3d 11 (Doolin ) ["A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution."].)

Sentencing is a critical stage in the criminal process within the meaning of the Sixth Amendment. (Doolin, supra, 45 Cal.4th at p. 453, 87 Cal.Rptr.3d 209, 198 P.3d 11

; accord, Mempa v. Rhay (1967) 389 U.S. 128, 134–137, 88 S.Ct. 254, 19 L.Ed.2d 336.) A defendant is entitled under state and federal law to the assistance of counsel when a sentence is vacated on appeal and remanded for a new sentencing hearing. " [W]hen a criminal sentence is vacated because one of the convictions has been reversed, it becomes void in its entirety; the sentence—including any enhancements—has "been wholly nullified and the slate wiped clean." [Citation.] Consequently, when a sentence is vacated and remanded for re-sentencing, the district court has the discretion to ‘reconstruct the sentence.’ [Citation.] ... Therefore, [the defendant's] presence and his counsel's presence [are] a necessity, not a ‘luxury.’ [Citation.]" (Hall v. Moore (11th Cir.2001) 253 F.3d 624, 627–628 ; see also People v. Rodriguez (1998) 17 Cal.4th 253, 70 Cal.Rptr.2d 334, 949 P.2d 31 [remanding for new sentencing hearing to be conducted in the presence of the defendant and his counsel where trial court had erroneously refused to consider the defendant's Romero motion believing it lacked discretion to strike qualifying priors under the Three Strikes law].)

A constitutional right to counsel has also been recognized to attach to a deferred sentencing hearing " ‘even when [sentencing] is accomplished as part of a subsequent probation revocation proceeding.’ [Citations.]" (People v. Bauer (2012) 212 Cal.App.4th 150, 155, 150 Cal.Rptr.3d 804

, quoting Gagnon v. Scarpelli (1973) 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656.)

This appeal presents a question of first impression, whether a postconviction resentencing hearing on a petition under section 1170.18

is a "critical stage" of a criminal prosecution to which the Sixth Amendment right to counsel attaches. " ‘The determination whether the hearing is a "critical stage" requiring the provision of counsel depends ... upon an analysis "whether potential substantial prejudice to defendant's rights inheres in the [particular] confrontation and the ability of couns...

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