People
v.
DeVaughn

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWOSep 28, 2017
E065707 (Cal. Ct. App. Sep. 28, 2017)

E065707

09-28-2017

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL OWEN DEVAUGHN, Defendant and Appellant.

Suzanne G. Wrubel, 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 Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF132760) OPINION APPEAL from the Superior Court of Riverside County. Bucky Dugan, Judge. Affirmed with directions. Suzanne G. Wrubel, 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 Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant was convicted of numerous financial and theft-related crimes and sentenced to prison in 2011. He appealed, raising various issues, including challenges to the sentence imposed. In a published opinion (People v. DeVaughn (2014) 227 Cal.App.4th 1092), we affirmed his convictions and agreed with some of the sentencing challenges, remanding the matter to the trial court with directions to strike the terms imposed on counts 18, 19, 20, 21, and 33, along with the enhancement pursuant to Penal Code section 12022.6, subdivision (a)(2), as to count 10. We also directed the court to stay the sentences for counts 12, 29, 38 and 46 pursuant to Penal Code section 654, impose a consecutive term of eight months (one-third the middle term) for count 2, and to run a concurrent two-year term for count 23. Finally, we directed the court to amend the abstract of judgment to reflect those changes, and to recalculate the total sentence.

On remand, the trial court corrected the sentence and prepared an amended abstract of judgment, but defendant did not learn of the proceeding until 2016, when he appealed. On appeal, defendant argues that the court erred by resentencing him in absentia. We affirm with directions.

We granted his application for constructive filing of the notice of appeal.

Defendant has filed a separate petition for writ of habeas corpus (E067995, filed Mar. 24, 2017) which will be addressed by a separate order.

BACKGROUND

The facts underlying the offenses are set forth in our published opinion, People v. DeVaughn, supra, 227 Cal.App.4th 1092, and need not be repeated here, insofar as the facts are not germane to the issue presented. Suffice it to say that we affirmed defendant's numerous convictions for theft, identity theft, financial elder abuse, use of a forged instrument, false statements, and money laundering, but agreed with defendant that certain of the terms imposed for those convictions were imposed in error. We therefore made the following disposition:

"For Michael, the following are reversed: the enhancement under [Penal Code] section 12022.6, subdivision (a)(2) as to count 10 and counts 18, 19, 20, 21 and 33. The sentences imposed for them are stricken. The terms for counts 12, 29, 38 and 46 are stayed pursuant to [Penal Code] section 654. The trial court is directed to amend the abstract of judgment to reflect these changes, and to recalculate the total sentence, in addition to the following: the term for count 2 is eight months consecutive and the term for count 23 is two years concurrent." (People v. DeVaughn, supra, 227 Cal.App.4th at p. 1121.)

On October 30, 2014, following the issuance of the remittitur, the trial court amended the sentence as we directed, in an ex parte hearing, and issued an amended abstract of judgment on December 16, 2014. The minutes and the amended abstract reflect a recalculated term of 28 years in prison. On March 24, 2016, we granted defendant's petition for writ of habeas corpus seeking to establish the constructive timely filing of a notice of appeal. On March 30, 2016, defendant appealed.

Technically, the amended sentence comports with our disposition, although the total term may have been miscalculated and the amended abstract contains certain erroneous notations, which we will address, post.

DISCUSSION

1. Right to be Present When Sentence Was Modified

On appeal, defendant argues that the trial court violated his constitutional right to be present at sentencing. We disagree.

We begin by acknowledging that in criminal cases, a defendant has a constitutional and statutory right to be present for sentencing or a sentence modification hearing. (Cal. Const., art. I, § 15; Pen. Code, § 1193, subd. (a); People v. Robertson (1989) 48 Cal.3d 18, 60.) Pronouncement of judgment is a critical stage in the criminal prosecution when the right to be present applies. (In re Perez (1966) 65 Cal.2d 224, 229.) This right insures the defendant has an opportunity to challenge the accuracy of the information the sentencing judge may rely on, argue about its reliability and weight, and to present evidence in mitigation of sentence. (United States v. Jackson (11th Cir. 1991) 923 F.2d 1494, 1496-1497; see also, People v. Alexander (1977) 74 Cal.App.3d 20, 26, citing In re Cortez (1971) 6 Cal.3d 78, 88.) Thus, with certain exceptions, judgment and sentence may be imposed only in the presence of the accused. (In re Levi (1952) 39 Cal.2d 41, 45; People v. Zackery (2007) 147 Cal.App.4th 380, 387.) The requirement for defendant's presence applies to an initial sentencing, or a resentencing where an entire sentence package has been vacated on appeal. (United States v. Jackson, supra, 923 F.2d at p. 1497.)

The right to be personally present depends on whether "judgment is pronounced" in the particular proceeding. When only a portion of a defendant's sentence is invalidated, the whole process need not be repeated if there has already been a sentencing hearing at which defendant had the opportunity to rebut evidence in the probation report and to present evidence in mitigation. (United States v. Jackson, supra, 923 F.2d at p. 1497.) "'[T]he defendant's right to be present extends to the imposition of a new sentencing package after an original sentencing package is vacated in its entirety on appeal and the case is remanded for resentencing. [Citation.]'" (In re Guiomar (2016) 5 Cal.App.5th 265, 278 [defendant's sentence recalled pursuant to Prop. 47, entitling defendant to be present for resentencing], citing United States v. Jackson, supra, 923 F.2d at p. 1496.)

Thus, the established right to be present for sentencing or resentencing does not translate into a right to be present whenever judicial action modifying a sentence is taken. (United States v. Jackson, supra, 923 F.2d at p. 1496.) The correction of an illegal sentence does not constitute a resentencing requiring the presence of a defendant, so long as the modification does not make the sentence more onerous. (Id., at p. 1497.) A remedial sentence reduction is not a critical stage of the proceedings, so the defendant's presence is not required. (Ibid.)

"[J]urisdiction of the trial court upon issuance of the remittitur is limited to the making of orders necessary to carry the judgment into effect." (People v. Ainsworth (1990) 217 Cal.App.3d 247, 255.) "'On remand with directions, after a judgment on appeal, the trial court has jurisdiction only to follow the directions of the appellate court; it cannot modify, or add to, those directions.' [Citation.]" (People v. Vizcarra (2015) 236 Cal.App.4th 422, 441.) Where the court only has jurisdiction to perform the ministerial act of amending the sentence and abstract to conform with the appellate court's directions, the defendant does not have a right to be personally present for those proceedings. (United States v. Jackson, supra, 923 F.2d at p. 1497.)

Here, defendant's original sentence was 33 years four months. (People v. DeVaughn, supra, 227 Cal.App.4th at p. 1097.) Following remand and modification of the sentence, the defendant's term was reduced to 28 years. The modification did not make the sentence more onerous, and did not result in any new exercise of sentencing discretion for which defendant's presence is required. There was no new "judgment and imposition of sentence," as that term has been interpreted, but merely a modification of the sentence pursuant to the directions of this court. There was no error.

As will be shown, there may be a miscalculation as to the length of the modified sentence. --------

2. Clerical Errors in the Amended Abstracts

On remand, the court carried out the directions set out in our prior opinion by staying certain terms pursuant to Penal Code section 654, and recalculating the total sentence as 28 years. Two amended abstracts were prepared: one, entitled "Prison Commitment," "First Amended Abstract," was filed on November 18, 2014, and another, referring only to "Prison Commitment," is dated December 16, 2014. Assuming that the December version is the operative abstract of judgment, the attachment page, which lists the terms imposed for counts 8 through 25, mistakenly indicates that the consecutive 8 month terms for counts 10, 11, 13, 14, 15, 16, and 24 had been ordered to be served "consecutive, full term." This is plainly in error, because the 8 month terms reflect one-third the middle term of 2 years for each of those counts.

Additionally, the minutes of the resentencing hearing following the issuance of the remittitur calculates the sentence imposed to be 28 years. However, adding the terms as reflected in the abstract, we arrive at a different sum of 27 years, 4 months.

The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. (Pen. Code, § 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185, citing In re Black (1967) 66 Cal.2d 881, 890.) It goes without saying that accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification. (Pen. Code, § 1213, subd. (a).) This court has the authority to correct clerical errors at any time. (People v. Mitchell, supra, 26 Cal.4th at pp. 186-187.)

The clerk is directed to amend the abstract of judgment as follows: Delete the check marks in the column designated for full-strength consecutive terms for the counts indicated above, and move those check marks to the column designated for "1/3 Consecutive."

In addition, the court is directed to review and recalculate the sentence to insure mathematical accuracy. If the entries in the abstract are correct, we arrive at a sum of 27 years, 4 months.

DISPOSITION

The judgment is affirmed. The clerk is directed to amend the abstract of judgment so that the second page deletes references to consecutive terms being imposed full strength for counts 10, 11, 13, 14, 15, 16, 24, and 25, and instead show those consecutive terms as one-third the middle term. The trial court is directed to verify the accuracy of the length of the aggregate term. Copies of the minutes and amended abstract shall be forwarded to the Department of Corrections and Rehabilitation and to the defendant.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ


P. J. We concur: MILLER


J. SLOUGH


J.