People v. Sanchez

• Citation: 200 Cal.Rptr.3d 368,245 Cal.App.4th 1409
• Decision Date: 28 March 2016
• Docket Number: G050481
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rolando Esteban SANCHEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

245 Cal.App.4th 1409

200 Cal.Rptr.3d 368

The PEOPLE, Plaintiff and Respondent,

v.Rolando Esteban SANCHEZ, Defendant and Appellant.

G050481

Court of Appeal, Fourth District, Division 3, California.

Filed March 28, 2016

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE

, J.

A criminal defendant has a constitutional and statutory right to be present at sentencing. (People v. Robertson (1989) 48 Cal.3d 18, 60, 255 Cal.Rptr. 631, 767 P.2d 1109

.) Defendant Rolando Esteban Sanchez contends he was denied his right to counsel and to be present at his resentencing hearing when the trial court resentenced him in his absence on remand after the federal district court ordered defendant's conviction on count five vacated and the matter remanded for trial on count five for resentencing.

Defendant was convicted and sentenced on a number of felony convictions in this matter. The court originally sentenced him to an aggregate term of 63 years to life. A consecutive sentence of one year eight months on count five (possession of a concealed firearm in a motor vehicle) was part of the aggregate term. The court found that based on the sentence imposed on count five, Penal Code ¹

section 654 precluded punishing defendant on count eight (possession of a loaded firearm in a motor vehicle).

On remand, the trial court held defendant had no right to appear for his resentencing. The Attorney General does not contend defendant's right to be present or to have the assistance of counsel were not violated, but argues that defendant was not prejudiced. According to the Attorney General, defendant did not demonstrate he "could have received a more favorable result if he had been present or able to confer with his attorney." We disagree.

At the resentencing, the trial court stated it was only lifting the previously imposed stay on count eight. If it had, defendant's total sentence would have been 61 years four months to life. (§ 669, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1181–1182, 40 Cal.Rptr.2d 534, 892 P.2d 1277

.) Instead, the court changed the sentence on count eight from a five-year concurrent term to a consecutive sentence of one year eight months, increasing the total sentence to 63 years to life. Because the trial court changed the previously imposed term to defendant's detriment, defendant has demonstrated he was prejudiced by not being permitted to be present and to confer with his attorney. We order the sentence imposed on count eight at the resentencing hearing vacated and remand the matter to the superior court for resentencing with the defendant present.

I

PROCEDURAL SETTING

This is the second appeal in this case by defendant. We granted his requests to take judicial notice of the record from his earlier appeal in People v. Sanchez (2011) G042950, 2011 WL 1585084

[nonpub. opn.] and the report and recommendation of the United States magistrate judge in the Central District of California case, Sanchez v. Lewis (C.D. Cal. Jan. 27, 2014, No. ED CV 12–2018–DOC (PJW)), 2014 WL 1681999, 2014 U.S. Dist. Lexis 59592. (Evid.Code, §§ 452, subd. (d), 459 ; Cal. Rules of Court, rule 8.252.)

Defendant was convicted by a jury of first degree murder (§ 187, subd. (a); count one), arson (§ 451, subd. (d); count two), three counts of receiving stolen property (§ 496, subd. (a); counts three, nine, and 10), second degree burglary (§ 459

; count four), carrying a concealed stolen firearm in a motor vehicle under his control (former § 12025, subd. (a)(1) repealed by Stats. 2010, ch. 711, § 4; reenacted without substantive change as § 25400, subd. (a)(1) by Stats. 2010, ch. 711, § 6, eff. Jan. 1, 2012; count five), carrying a loaded firearm in a vehicle (former § 12031, subd. (a)(1) repealed by Stats. 2010, ch. 711, § 4; reenacted without substantive change as § 25850, subd. (a) by Stats. 2010, ch. 711, § 6, eff. Jan. 1, 2012; count eight), and active participation in a criminal street gang (§ 186.22, subd. (a); count 11). Gang enhancements (§ 186.22, subd. (b)(1)) were found true in connection with a number of the offenses and defendant was found to have discharged a firearm causing great bodily injury or death, in violation of section 12022.53, subd. (d).

The court sentenced the defendant to an aggregate term of 63 years to life. It first imposed 25 years to life on the murder (count one) and a consecutive term of 25 years to life for the intentional discharge of a firearm causing great bodily injury or death, for an indeterminate term of 50 years to life. The court then calculated the determinate term portion of the sentence and ordered it to run consecutively to the sentence on count one. (People v. Neely (2009) 176 Cal.App.4th 787, 798, 97 Cal.Rptr.3d 913

[indeterminate and determinate sentences are to be calculated separately].) The determinate term was calculated as follows: a term of three years on count two (arson) plus a consecutive term of five years for the gang enhancement found true in connection with count two; a consecutive 8–month term (one-third the midterm) on count four (burglary) plus a consecutive one-year term (one-third the midterm) on the gang enhancement found true in connection with the count four; a consecutive 8–month term on count five (one-third the midterm) (possession of concealed firearm) plus an additional one-year term (one-third the midterm) on the gang enhancement found true in connection with count five, and a consecutive 8–month term on count 10 (one-third the midterm) plus an additional one-year term (one-third the midterm) on the gang enhancement found true in connection with count 10. Pertinent to this appeal, the court imposed a two-year term on count eight (carrying a loaded firearm in a vehicle), plus three years for the gang enhancement attached to that count, and stayed imposition of the term pursuant to section 654

because the court imposed a prison term on count five.²

We affirmed the judgment on appeal. (People v. Sanchez (2011) G042950, 2011 WL 1585084 [nonpub. opn.], p. *14.

) Our Supreme Court denied review. (People v. Sanchez, review denied Aug. 10, 2011, S193704.) Defendant then sought relief in federal court. As a result of the federal action, the district court ordered defendant's conviction on count five (possession of a concealed weapon in a motor vehicle under his control) vacated and remanded the matter to the superior court for resentencing or a new trial on count five.

The case was back in the superior court for resentencing on June 30, 2014. Defense counsel's June 20, 2014 request to have defendant transported to court for resentencing was denied by Judge Charles E. Stafford, Jr., who apparently mistakenly believed the matter was there on the issue of restitution, and not for resentencing, despite defense counsel's representation to the contrary. Judge Stafford continued the matter to be heard to June 30, 2014, in Judge John J. Ryan's courtroom.

On June 30, defendant's attorney notified the court defendant wanted to be present for resentencing and that she did not have section 977 authority to proceed in defendant's absence. Counsel informed the court defendant had previously been sentenced to 63 years to life and that one year and eight months of that sentence was based on the vacated conviction on count five and its attendant gang enhancement.

Defense counsel's request to have defendant present was denied and the court proceeded with the resentencing. The court granted the prosecutor's motion to dismiss count five, lifted the section 654

stay on the sentence previously imposed on the conviction for possessing a loaded firearm in a vehicle, count eight (two-year midterm plus three-year midterm on the attached gang enhancement), and imposed a consecutive term of eight months (one-third the midterm) plus an additional one-year term (one-third the midterm) on the gang enhancement found true in connection with count eight. This resulted in no change in the aggregate term of the previously imposed sentence of 63 years to life.

II

DISCUSSION

A criminal defendant has a "constitutional and statutory right to be present" for sentencing or a sentence modification hearing. (People v. Robertson, supra, 48 Cal.3d at p. 60, 255 Cal.Rptr. 631, 767 P.2d 1109

; see Cal. Const., art. I, § 15 [defendant has right "to be personally present with counsel"]; §§ 977, subd. (b)(1) [defendant "shall be personally present ... at the time of the imposition of sentence"], 1193 ["defendant shall be personally present when judgment is pronounced," unless presence is properly waived].) Defendant was present when judgment was originally imposed, but the superior court refused to permit defendant to attend the resentencing hearing on remand after one of his convictions was overturned. The court resentenced defendant on count eight, the sentence which had been imposed and stayed pursuant to section 654 at the original sentencing. In resentencing defendant on count eight, the court did not merely lift the previously ordered stay; it changed the previously imposed (and stayed) sentence.

In In re Ralph (1946) 27 Cal.2d 866, 867, 168 P.2d 1

, the defendant pled guilty to robberies in two consolidated cases. The court sentenced the defendant to state prison for the term provided by law. On appeal, he contended he should have been committed to the California Youth Authority (CYA) rather than state prison. He did not complain about the term of the commitment. The Supreme Court reversed the judgment to the extent the commitment was to state prison, and directed the trial court to certify defendant to the CYA. (Ibid. ) On remand, the court entered an order withdrawing the commitment to state prison and referring defendant to the CYA. Within a week, the CYA ...