Opinion
F086031
05-03-2024
THE PEOPLE, Plaintiff and Respondent, v. MARQUIS WAYNE CANDLER, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF176270A . Kenneth C. Twisselman II, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
This opinion constitutes this court's second time addressing this matter. In our first opinion, we directed the trial court to resentence defendant but affirmed in all other respects. (People v. Candler (May 17, 2022, F080373) [nonpub. opn.].) This second appeal concerns the resentencing hearing that took place in February 2023. Appointed counsel for defendant Marquis Wayne Candler filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We informed defendant of his right to file a supplemental brief within 30 days, as did his appointed counsel, and defendant filed such a brief.
After independently reviewing the record and defendant's contentions in his supplemental brief, we affirm.
FACTUAL BACKGROUND
Defendant killed Jamore Holliday and wounded Holliday's girlfriend after shooting them in an apartment where they all lived. Defendant was arrested the next morning. He was interviewed by police and told the investigating officer that he had blacked out after drinking a substantial amount; he denied any involvement in the shooting. Defendant was charged with the premeditated first degree murder of Holliday, the attempted murder of Holliday's girlfriend, and illegal possession of a firearm, along with firearm enhancements and prior conviction enhancement allegations.
These facts are derived from our prior, nonpublished opinion (People v. Candler, supra, F080373)). A more detailed recitation of the underlying facts was provided in that opinion, and we do not repeat those facts here.
After a trial by jury, defendant was convicted of first degree premeditated murder (Pen. Code, §§ 187, subd. (a); 189, subd. (a)) with personal and intentional discharge of a firearm causing death to another person (§ 12022.53, subd. (d)); premeditated attempted murder (§§ 664/187, subd. (a)) with personal and intentional discharge of a firearm causing great bodily injury to another person (§ 12022.53, subds. (c), (d)), and for illegal possession of a firearm (§ 29800, subd. (a)(1)). In a bifurcated proceeding, as to each count, the trial court found true beyond a reasonable doubt that defendant had suffered two prior serious/violent felony convictions within the meaning of the "Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and found two prior convictions true for purposes of section 667, subdivision (a); the trial court also found true defendant had served a prior prison term within the meaning of section 667.5, former subdivision (b).
All further statutory references are to the Penal Code unless indicated otherwise.
The prosecutor dismissed one of the three prior strike allegations, one prior serious felony conviction enhancement, and one prior prison term enhancement alleged on all three counts.
Due to the two prior strike convictions under the Three Strikes law found true, defendant was sentenced as a third-strike offender, except with respect to count 3.(§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).) The court struck the section 667.5, former subdivision (b), enhancement on each count. The court explained that although it had the discretion to strike the firearm enhancements under section 12022.53 and the prior serious conviction enhancements under section 667, subdivision (a), the interests of justice did not support doing so. On count 1, the trial court imposed a term of 75 years to life (§§ 190, subd. (a), 667, subd. (e)(2)(A)(i)), plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), plus two 5-year prior serious conviction enhancements (§ 667, subd. (a)); on count 2, the trial court imposed a term of 43 years to life (§ 667, subd. (e)(2)(A)(iii)), plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), plus 20 years for the firearm enhancement under section 12022.53, subdivision (c), which the court stayed, plus two 5-year prior serious conviction enhancements; on count 3, the trial court imposed the upper term of six years, which it stayed under section 654. Finally, the court imposed and suspended a $300 restitution fine under section 1202.4 and a suspended parole revocation fine of $300 under section 1202.45; plus, on each count, a $30 fee under Government Code section 70373 and a $40 fee under section 1465.8. The aggregate sentence imposed was 20 years determinate followed by an indeterminate term of 168 years to life.
The conviction on count 3 was for illegal possession of a firearm under section 29800, subdivision (a). As this offense is not a serious/violent felony (see §§ 667.5, subd. (c), 1192.7, subd. (c)), and this count itself was not accompanied by a pleaded and proven allegation that defendant used a firearm during the commission of the offense (see §§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), this count was sentenced as a second-strike offense, the upper term was imposed and the applicable term of three years was doubled to six.
Under section 667, subdivision (e)(2)(A), the greatest minimum term was calculated under option (iii): seven years (minimum period for parole eligibility under § 3046) plus 25 years for the firearm enhancement plus 10 years for the two enhancements under section 667, subdivision (a), plus the one-year prior prison term enhancement under section 667.5, former subdivision (b) for a total of 43 years. (§ 667, subd. (e)(2)(A)(iii).)
On appeal, although the trial court had stricken the prior prison term enhancements under section 667.5, former subdivision (b), the trial court had inadvertently included that enhancement in calculating the greatest minimum term for the indeterminate term imposed on count 2. We also noted that while the appeal was pending, the Legislature had passed Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), which limited the trial court's discretion to impose an upper term under section 1170, subdivision (b)(2), among other things. Although affirmed in all other respects, the case was remanded for resentencing so that the trial court could strike the one-year enhancement from the minimum indeterminate term calculation on count 2, and to allow defendant an opportunity to present an argument under Senate Bill 567 regarding the upper term imposed on count 3.
At resentencing in February 2023, by signed waiver, defendant waived his right to be present with the leave of the trial court and with approval by defendant's counsel. (§ 977, subd. (b) [a defendant's right to be present at sentencing may be waived with leave of court and by approval of the defendant's counsel].) The trial court recalculated the greatest minimum indeterminate term on count 2 as 42 years to life by removing the one-year prior prison term enhancement from the calculation, and reduced the sentence on count 3 to the middle term of four years, staying the sentence on count 3 under section 654. In all other respects, the trial court reimposed the same sentence. The aggregate sentence imposed was 20 years determinate followed by an indeterminate term of 167 years to life.
We directed the record on appeal be augmented with defendant's signed section 977 waiver form which provided, "The undersigned defendant, having been advised of his or her right to be present at all stages of the proceedings, including, but not limited to, presentation of and arguments on questions of fact and law, and to be confronted by and cross-examine all witnesses, hereby waives the right to be present at the hearing of any motion or other proceeding in this cause. The undersigned defendant hereby requests the court to proceed during every absence of the defendant that the court may permit pursuant to this waiver, and hereby agrees that his or her interest is represented at all times by the presence of his or her attorney the same as if he defendant were personally present in court, and further agrees that notice to his or her attorney that his or her presence in court on a particular day at a particular time is required is notice to the defendant of the requirement of his or her appearance at that time and place."
DISCUSSION
Defendant's appointed appellate attorney filed a brief on appeal without raising any specific issues, asking us to review the record to determine if any issues warrant briefing, as provided in Wende, supra, 25 Cal.3d 436. We advised defendant that he could file a supplemental brief on his own behalf within 30 days after the Wende brief was filed. Defendant filed such a brief and, in addition to conducting our own independent review of the entire record, we also address defendant's arguments.
Defendant argues he was told only one year would be reduced from his sentence, but now believes he was entitled to full resentencing under new laws that became effective while his appeal was pending. He effectively asserts that had he known this, he would have decided to be present at the resentencing hearing. "A criminal defendant has a 'constitutional and statutory right to be present at [a] sentence modification hearing and imposition of sentence.'" (People v. Nieves (2021) 11 Cal.5th 404, 508.) However, "'[n]either the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant's personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him. [Citations.]' [Citations.] 'Defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial.'" (People v. Blacksher (2011) 52 Cal.4th 769, 799.)
Here, defendant's counsel filed a motion seeking a waiver of defendant's appearance at resentencing. The trial court heard the motion and required counsel to obtain defendant's written waiver of personal presence under section 977. At the February 2023 sentencing hearing, the trial court indicated on the record he had received defendant's written, signed waiver form under section 977, which, pursuant to statute, broadly waives defendant's right to be present at any proceeding in the cause. Defendant's claim that he did not understand the scope of resentencing, without something more, is not sufficient to establish his waiver was not intelligently given. (See People v. Weaver (2001) 26 Cal.4th 876, 966-967 [waiver intelligently given despite that the defendant was not advised of the importance of his personal presence before he waived it].) Defendant's waiver, acceded to by his counsel, reflects he knowingly and intelligently waived his right to be present at resentencing and was voluntarily absent. (People v. Davis (2005) 36 Cal.4th 510, 531.)
The trial court fully resentenced defendant as required by our first opinion in this case. (People v. Buycks (2018) 5 Cal.5th 857, 893 [when one part of a sentence is stricken on review, remand for full resentencing is appropriate so the court can exercise its sentencing discretion in light of changed circumstances].) In October 2022, the trial court ordered that a supplemental probation report be prepared that included information about defendant's conduct while incarcerated, and a new probation report was prepared and filed. There is no indication the trial court failed to resentence defendant in accordance with the law currently in effect. (See People v. Walker (2021) 67 Cal.App.5th 198, 205-206 &fn. 4 [upon resentencing, trial court must apply the law in effect at the time of resentencing except where barred by the prohibition against ex post facto laws].)
The court struck the one-year prior prison term enhancement from the minimum indeterminate-term calculation for count 2, and imposed the middle term (rather than the upper term) on count 3 pursuant to section 1170, subdivision (b), which was amended by Senate Bill 567. The trial court asked the parties whether they had any additional arguments to present, and defense counsel raised no additional issues regarding resentencing. We find no arguable errors.
We also note that at the original sentencing hearing in 2019, defense counsel requested the trial court strike the firearm enhancements and the prior serious felony enhancements. The trial court declined to strike any of those enhancements, finding it was not in the interests of justice to do so.
Defendant also asserts a claim under the Racial Justice Act of 2020 (§ 745) due to the length of his sentence, which, as we understand defendant's argument, stems from the trial court's purported bias against defendant after defendant had an outburst in court. Defendant's contention, however, does not state a cognizable claim under section 745, as the bias defendant alleges is not based on defendant's race, ethnicity or national origin. (Id., subd. (a).)
Finally, defendant argues he was not prepared to file his supplemental brief because his counsel did not send him any paperwork after he wrote to his counsel and requested any and all transcripts counsel had pertaining to his case. In the opening brief, defendant's appointed appellate counsel explained that counsel had advised defendant of his right to file a supplemental brief, and that he could ask the court to relieve his counsel, who would then forward a copy of the record on appeal to defendant. Counsel informed defendant that counsel would retain the record for the present to allow for proper representation in the event the court requested further briefing. A copy of this brief was served on defendant. Unless and until defendant requested that this court relieve counsel, defendant was informed the record on appeal would remain with his appointed counsel. Defendant did not make any request to relieve counsel, his appointed attorney therefore retained the records as indicated, and thus defendant's argument is without merit.
Having independently reviewed the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court's order is affirmed.
[*] Before Detjen, Acting P. J., Franson, J. and Meehan, J.