Opinion
F082811
10-17-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSE LOUIE FARIAS, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF161674A. John R. Brownlee, Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2017, appellant pleaded no contest to multiple child sexual assault offenses and was sentenced to 90 years to life plus 44 years in state prison. In his initial appeal, we affirmed appellant's conviction but vacated sentence and remanded for the trial court to exercise its discretion to dismiss appellant's prior serious felony enhancement (Pen. Code, § 667, subd. (a)) in accordance with newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.). (People v. Farias (Mar. 4, 2019, F076339) [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant's request for judicial notice of this court's prior opinion is granted.
On remand, the trial court conducted a resentencing hearing without appellant present. Appellant contends he had a right to be personally present at the resentencing hearing and was prejudiced by his absence. We agree. We remand the matter for the trial court to conduct a resentencing hearing at which appellant is present. In all other respects, we affirm.
BACKGROUND
In 2015, the Kern County District Attorney's Office filed an information charging appellant with three counts of oral copulation or sexual penetration of a minor 10 years of age or younger (§ 288.7, subd. (b)) and one count of continuous sexual abuse of a child (§ 288.5, subd. (a)). The information also alleged appellant suffered a 1996 conviction for first degree burglary, which constitutes a prior strike conviction within the meaning of section 667, subdivisions (b) through (i), and a prior serious felony conviction pursuant to section 667, subdivision (a).
Appellant pleaded no contest to all counts and admitted the prior strike enhancement and prior serious felony enhancement. At sentencing, he requested the trial court dismiss his strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court denied the request for two reasons: "First, the court noted that although the strike was 22 years old, appellant began molesting the victim in 1995, when the strike was less than 10 years old. Second, the court stated appellant's new offenses constituted an egregious course of conduct lasting six or seven years, stopping only when appellant lost access to the victim." (People v. Farias, supra, F076339.) The trial court then sentenced appellant to 90 years to life plus 44 years in state prison.
Appellant appealed the trial court's denial of his Romero motion. We held the denial was not an abuse of discretion. (People v. Farias, supra, F076339.) However, while the appeal was pending, the Legislature enacted Senate Bill No. 1393, which gave trial courts discretion to strike prior serious felony enhancements (§ 667, subd. (a)). We vacated appellant's sentence and remanded the matter for resentencing in light of the new enactment. (People v. Farias, supra, F076339.)
Following remand, appellant's counsel filed a "Sentencing Statement; Motion to Strike PC 667(a) Prior Conviction," contending the age of the prior conviction, appellant's youth at the time of the prior conviction, appellant's criminal history, and his good behavior in custody and efforts at rehabilitation weigh in favor of striking the enhancement. The People filed an opposition, arguing it is "not surprising" appellant has performed well in prison because he lived an otherwise productive and lawful life while molesting the victim over the course of several years.
The trial court issued a removal order directing the California Department of Corrections and Rehabilitation to transport appellant from Mule Creek State Prison to the Kern County Superior Court for his May 14, 2021, resentencing hearing. For reasons that are unclear from the record, appellant was not transported to the superior court on that date. At the hearing, appellant's counsel stated he was appearing for appellant pursuant to section 977. Appellant's counsel also represented that appellant wanted to appear telephonically from Mule Creek State Prison. The court stated it would "look into it," but asked if the hearing will "go forward" if it could not arrange the telephonic appearance. Appellant's counsel responded: "My understanding, it will still go forward." The hearing was then continued to May 18, 2021.
At the next court date, appellant's counsel represented that appellant gave him "permission to appear for him under PC 977." At the conclusion of the hearing, the trial court denied the motion to strike the prior serious felony enhancement for the same reasons it denied appellant's Romero motion: the gravity of appellant's conduct, and the recency of the prior conviction to when appellant began molesting the victim. The court also stated it appreciated that appellant "threw himself on the mercy of the [c]ourt" by pleading guilty as charged, "but given the gravity of the offenses and [appellant's] criminal history … striking the enhancement would be inappropriate." The trial court then imposed the previously imposed sentence of 90 years to life plus 44 years in state prison.
DISCUSSION
I. Appellant did not waive his right to be present at the resentencing hearing.
"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. It is also required by section 15 of article I of the California Constitution and by [Penal Code] sections 977 and 1043." (People v. Concepcion (2008) 45 Cal.4th 77, 81.) This right extends to "all critical stages of the criminal prosecution, i.e., 'all stages of the trial where his absence might frustrate the fairness of the proceedings.'" (People v. Rodriguez (1998) 17 Cal.4th 253, 260.) "Sentencing is considered to be one such critical stage [citations], and, because the trial court has discretion to reconsider the entire sentence on remand, resentencing is another critical stage." (People v. Cutting (2019) 42 Cal.App.5th 344, 348 (Cutting); see People v. Basler (2022) 80 Cal.App.5th 46, 57.)
Respondent does not dispute that appellant had a right to be personally present at the resentencing hearing, but contends that he waived that right through counsel. We disagree.
A defendant may waive his right to be present a critical stage, "provided the waiver is knowing, intelligent, and voluntary." (People v. Cunningham (2015) 61 Cal.4th 609, 633; see § 1193, subd. (a); see also People v. Concepcion, supra, 45 Cal.4th at p. 82.) Defense counsel may waive a defendant's presence for his or her client, but "[a]t a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so." (People v. Davis (2005) 36 Cal.4th 510, 532.) Moreover, section 1193 specifies that to waive presence at sentencing in a felony prosecution, the defendant must execute a waiver "in open court and on the record, or in a notarized writing." (§ 1193, subd. (a).)
In Davis, defense counsel represented he had discussed a pretrial hearing on the admissibility of certain recordings, and that the defendant would waive his presence. (People v. Davis, supra, 36 Cal.4th at p. 532.) Our high court found the waiver was inadequate: "Here, there is scant evidence of consent, and even less evidence that defendant understood the right he was waiving and the consequences of his waiver.… There is no evidence that defense counsel informed defendant of his right to attend the hearing; nor is there evidence that defendant understood that by absenting himself from the hearing he would be unable to contribute to the discussion of the contents of the tape recording." (Ibid.)
Here, there is no dispute that the purported waiver by appellant's trial counsel did not comply with section 1193, which contains no provision authorizing defense counsel to waive a defendant's presence. The only evidence of waiver was the conclusory representation of counsel that appellant gave him permission to appear for him. As in Davis, there was no evidence appellant understood the nature of his constitutional right to be present at the resentencing hearing and the consequences of waiving that right. Moreover, appellant's request to appear telephonically suggests he did not wish to waive his right to be present at the resentencing hearing entirely. Accordingly, we conclude counsel's efforts at waiving appellant's presence were inadequate.
II. Appellant's absence from his resentencing hearing was prejudicial.
Appellant contends he was prejudiced by his absence from his resentencing hearing because he was unable to fully advocate for a lesser sentence. We agree. On the record before this court, we cannot conclude appellant's absence was harmless beyond a reasonable doubt.
A. Standard of Review.
"Under the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23." (People v. Davis, supra, 36 Cal.4th at p. 532.) We therefore "ask whether his absence was harmless beyond a reasonable doubt." (People v. Basler, supra, 80 Cal.App.5th at p. 59.) Under this standard, "the burden is on the People, not the [appellant], to demonstrate that the violation of the [appellant's] federal constitutional right was harmless." (People v. Cutting, supra, 42 Cal.App.5th at p. 349.)
Respondent suggests the less onerous Watson standard is applicable, characterizing the error at issue as the trial court's failure to comply with the procedural requirements for the waiver of a defendant's presence pursuant to section 977. Section 977 is irrelevant here because its waiver provisions do not authorize a defendant in a felony matter to be absent "at the time of the imposition of sentence." (§ 977, subd. (b)(1).) Moreover, Watson only applies where "the error is purely one of state law." (People v. Epps (2001) 25 Cal.4th 19, 29.) Appellant's absence was a violation of his federal constitutional rights, so whether the purported waiver of his presence complied with section 977 is irrelevant to the determination of the appropriate standard of review.
People v. Watson (1956) 46 Cal.2d 818.
B. Analysis.
Appellant's absence from the resentencing hearing prevented him from providing the court with all information relevant to his motion to strike the prior serious felony enhancement, and to his resentencing generally. He was unable to speak to the court directly, make a personal expression of remorse, or address relevant "postconviction factors," such as his efforts at rehabilitation since his initial sentencing hearing in 2017. (§ 1172.1, subd. (a)(4); Dix v. Superior Court (1991) 53 Cal.3d 442, 460 ["it is well settled that when a case is remanded for resentencing after an appeal, the defendant is entitled to 'all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed"].) In appellant's absence, his counsel was only able to provide sparse documentary evidence indicating appellant was working and continuing his education in prison. This deprived appellant of the opportunity to explain how his experience and progress toward rehabilitation has "reduced [his] risk for future violence" such that his prior sentence is "no longer in the interest of justice." (§ 1172.1, subd. (a)(4); see also §1385, subd. (a).)
We are also persuaded by the relative difficulty of the sentencing decision presented by appellant's motion at resentencing. As we explained in our prior opinion, the trial court's denial was based on appropriate considerations, including the gravity of appellant's conduct and the age of the date of the prior conviction relative to the underlying criminal conduct. (People v. Farias, supra, F076339.) However, other considerations, such as the age of the prior conviction and appellant's lack of other criminal history, weighed in favor of striking the enhancement. Notably, when the trial court denied appellant's Romero motion, it commented its ruling was a "close call." The denial of the instant motion, which involved nearly identical analysis, was similarly close. Thus, any limitations on appellant's ability to advocate for a lower sentence are significant.
The court addressed an analogous situation in Cutting, where the defendant was resentenced following a change in the law such that he was no longer subject to a nine-year enhancement pursuant to Health and Safety Code section 11370.2, subd. (a). (Cutting, supra, 42 Cal.App.5th at pp. 346-347.) The court concluded the defendant's absence from the sentencing hearing was not harmless, stating: "[The defendant] may have offered mitigating factors that arose after his original sentencing; he may have expressed remorse; he may have made a plea for leniency. [Citation.] While the trial court may or may not have chosen to believe what [the defendant] might have said, if he said anything, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome." (Cutting, at p. 350.)
Similarly, in the instant matter, appellant could have offered a renewed statement of remorse or further addressed relevant postsentencing factors. Given that the decision not to strike the prior serious felony enhancement was a "close call," we cannot conclude with certainty that appellant's presence would not have resulted in a lower sentence. Therefore, we conclude appellant's absence from the resentencing hearing was not harmless beyond a reasonable doubt.
Because we conclude the matter must be remanded for resentencing, we need not address appellant's claim that the trial court erred in failing to hear appellant's motion for new appointed counsel (People v. Marsden (1970) 2 Cal.3d 118). If appellant still wishes to make such a motion, he may do so on remand.
We take no position on how the trial court should exercise its sentencing discretion when it resentences appellant.
DISPOSITION
Appellant's sentence is vacated and the matter is remanded. The trial court shall conduct a new resentencing hearing at which appellant is present unless he waives his presence in accordance with section 1193. Following resentencing, the court shall forward a new abstract of judgment to the appropriate authorities. In all other respects, appellant's judgment is affirmed.
[*] Before Poochigian, Acting P. J., Meehan, J. and De Santos, J.