Opinion
G049156
03-19-2018
In re DARRELL EDWARD ADAMS on Habeas Corpus.
Cindi B. Mishkin, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sharon Rhodes, and Susan Miller, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF108462) OPINION Original proceeding; petition for a writ of habeas corpus to challenge an order of the Superior Court of Riverside County, Michele D. Levine, Judge. Petition granted; order vacated. Cindi B. Mishkin, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sharon Rhodes, and Susan Miller, Deputy Attorneys General, for Respondent.
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We affirmed a judgment against petitioner Darrell Edward Adams but remanded to the trial court for resentencing as a result of two sentencing errors. Following the issuance of the remittitur, the trial court held a hearing and addressed the problems identified in the appellate opinion. However, petitioner's presence was not secured at the resentencing hearing. The absence of petitioner at his resentencing hearing represents constitutional error and the Attorney General has not demonstrated that the error was harmless beyond a reasonable doubt. We therefore order another resentencing hearing, this time with petitioner present.
FACTS AND PROCEDURAL HISTORY
We rely in large measure on two prior opinions of this court for the pertinent factual and procedural background of this case. (See People v. Adams (Nov. 17, 2009, G041461) [nonpub. opn.] (Adams I); People v. Adams (Oct. 11, 2012, G044831) [nonpub. opn.] (Adams II).)
In February 2003, petitioner lured a man to a secluded location and shot him four times. (Adams II, supra, G044831.) Petitioner was charged with multiple counts, including attempted murder. (Ibid.) The information also alleged various enhancements, a prior conviction, and a prior prison term. (Ibid.)
First Trial and Appeal
At his first trial, a jury convicted petitioner on all counts and found true the alleged enhancements. (Adams I, supra, G041461.) The trial court found true the prior conviction and prior prison term allegations. (Ibid.) On appeal, this court reversed the judgment. (Ibid.) The trial court erred by admitting the victim's preliminary hearing testimony into evidence when the prosecution had not established its due diligence in searching for the victim prior to trial. (See People v. Cromer (2001) 24 Cal.4th 889, 904-905.)
Second Trial and Appeal
On remand, the victim testified and a second jury convicted petitioner on all counts and found true the enhancement allegations. (Adams II, supra, G044831.) The trial court again found the prior conviction and prison term allegations to be true. (Ibid.) On appeal, this court rejected assertions of instructional and other errors. (Adams II, supra, G044831.) However, we agreed with petitioner and the Attorney General that two sentencing errors had occurred. (Ibid.) Per our disposition, the judgment was affirmed but the matter was remanded for resentencing. (Ibid.)
The first sentencing error identified in Adams II was that the trial court increased petitioner's sentence following his successful appeal in Adams I. (See People v. Hanson (2000) 23 Cal.4th 355, 357.) "After the first trial, the court sentenced defendant to an indeterminate term of 39 years to life, plus a determinate term of 10 years. . . . Following retrial, the trial court sentenced defendant to a total prison term of 39 years to life, plus [a determinate term of] 13 years four months . . . ." (Adams II, supra, G044831.) Our disposition stated: "On remand, the trial court shall ensure that defendant does not receive a greater sentence than the sentence the court imposed following defendant's first trial." (Ibid.)
The second sentencing error identified in Adams II was ministerial in nature. The minute order and abstract of judgment did not accurately reflect the trial court's oral imposition of sentence on petitioner's prior prison term. These documents stated that a five-year term was imposed under Penal Code section 667, subdivision (a)(1). In fact, the court imposed a one-year term under section 667.5, subdivision (b). Our disposition indicated: "The trial court shall also correct its minute order and the abstract of judgment to reflect the court's imposition of a one-year prison term for the prior prison term enhancement." (Adams II, supra, G044831.)
All statutory references are to the Penal Code.
Sentencing Hearing Upon Remand
Following the issuance of Adams II, a hearing was held at the trial court regarding the return of the remittitur from this court. The court vacated its previously imposed determinate sentence, then imposed a 10-year determinate sentence. As part of this 10-year determinate sentence, the court imposed a one-year prison term for the prior prison term. In short, as stated in the court's minute order, it issued an "order in compliance with [the] remittitur" from Adams II.
Present at the hearing was a deputy district attorney and a deputy public defender. The minute order makes clear that petitioner was not present. In her declaration filed in this habeas proceeding, the deputy public defender stated that she accepted appointment in this case the day of the resentencing hearing. She does not recall having any contact with petitioner, either before or after the hearing. According to her, "standard practice" was to ensure the presence of a criminal defendant upon the return of a remittitur only when possible negative consequences are contemplated by the remittitur. Under this practice, "[w]hen a lower sentence is contemplated by the remittitur, then the attorney will appear without the client being present." "[S]tandard practice" also meant that petitioner was not informed about the hearing or his right to appeal the court's resentencing order. No appeal was in fact filed from the resentencing order.
The Instant Petition for Writ of Habeas Corpus
Petitioner filed a petition for writ of habeas corpus in this court seeking the constructive filing of a late notice of appeal of the trial court's resentencing order. (See In re Benoit (1973) 10 Cal.3d 72.) After the parties filed informal briefing, this court ultimately decided to treat the petition as one seeking another resentencing hearing as a remedy, rather than merely seeking an appeal of the resentencing order.
At our invitation, petitioner filed a supplemental petition. After additional informal briefing, we issued an order to show cause. The matter is now fully briefed and ready for resolution.
ANALYSIS
Habeas relief is available to "correct errors of a fundamental jurisdictional or constitutional type" (In re Harris (1993) 5 Cal.4th 813, 828), particularly when "the standard appellate system failed to operate properly." (Ibid.) A habeas corpus petition is also the proper procedural mechanism to pursue a claim of ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Error
"Pronouncement of judgment . . . is a critical stage in the criminal prosecution when the constitutional rights 'to appear and defend, in person and with counsel' [citation] apply, and a judgment pronounced in violation of those rights can be attacked by habeas corpus." (In re Perez (1966) 65 Cal.2d 224, 229.) Criminal defendants convicted of a felony have the "constitutional and statutory" right to be present at a sentencing hearing. (People v. Robertson (1989) 48 Cal.3d 18, 60; see §§ 977, subd. (b)(1), 1193, subd. (a).) An appellate court remand to the trial court for the exercise of sentencing discretion also requires the presence of the defendant at the hearing. (People v. Rodriguez (1998) 17 Cal.4th 253, 256-260 [remand for exercise of discretion to strike prior felony conviction allegations]; People v. Sanchez (2016) 245 Cal.App.4th 1409, 1416-1417 [resentencing on count previously stayed required presence of defendant].)
In short, there is a bright line rule requiring a convicted felon to be present at a sentencing or resentencing hearing unless he or she explicitly waives that right. (§ 1193, subd. (a).) Petitioner did not waive his right to be present. Indeed, he was not even informed of the hearing. The trial court erred by resentencing petitioner without his presence or an explicit waiver.
Prejudice
An error pertaining to a criminal defendant's right to be present at sentencing is reviewed for prejudice pursuant to Chapman v. California (1967) 386 U.S. 18. (See People v. Robertson, supra, 48 Cal.3d at p. 62.) This standard of review "requires us to reverse . . . unless the People can demonstrate that the error was harmless beyond a reasonable doubt." (People v. Reese (2017) 2 Cal.5th 660, 671.)
The Attorney General fails to show that the error was harmless beyond a reasonable doubt. Adams II required the trial court to fix two specific errors. Most importantly, the trial court in Adams II imposed a determinate sentence in excess of that imposed by the trial court in Adams I. We remanded for resentencing and instructed the trial court to "ensure that defendant does not receive a greater sentence than the sentence the court imposed following [petitioner's] first trial." (Adams II, supra, G044831.) We did not state that the trial court was precluded from imposing a more favorable determinate sentence than the one defendant received in Adams I.
The only record of what occurred at the resentencing hearing is a brief minute order. There is no reporter's transcript available. By all indications, the hearing was treated as a routine matter of simply modifying defendant's sentence to comply minimally with this court's opinion in Adams II. There is simply no way to tell whether the court would have been receptive to an argument by petitioner for a determinate sentence of fewer than 10 years.
The petition also asserts that the abstract of judgment does not include all of petitioner's rightfully accrued presentence custody credits. The petition also contends that the court committed error under section 654 by sentencing him to a concurrent sentence on count 3 rather than staying count 3 (this is not the § 654 argument rejected in Adams II).
The Attorney General has failed to show beyond a reasonable doubt that these issues would not have been resolved favorably to petitioner had he been allowed to attend the resentencing hearing. In sum, habeas relief is appropriate to remedy the prejudicial error.
DISPOSITION
The resentencing order is vacated. The trial court shall conduct a new sentencing hearing at which petitioner is present, unless he expressly waives his presence at that hearing. The trial court "shall ensure that defendant does not receive a greater sentence than the sentence the court imposed following defendant's first trial. The trial court shall also correct its minute order and the abstract of judgment to reflect the court's imposition of a one-year prison term for the prior prison term enhancement." (Adams II, supra.) The trial court shall also notify petitioner of his right to appeal the outcome of the resentencing proceeding. The order to show cause is discharged.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.