Opinion
G052992
08-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL CARRASCO, Defendant and Appellant.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10NF2522) OPINION Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In People v. Carrasco (June 18, 2014, G047903) [nonpub. opn.] (Carrasco I), a panel of this court reversed in part a judgment against Juan Manuel Carrasco and remanded for resentencing. On remand, the trial court resentenced Carrasco, who was not present at the resentencing hearing, to a term of 29 years in prison. The Attorney General acknowledges the trial court erred by resentencing Carrasco in his absence. The issue presented is whether Carrasco suffered prejudice from his absence at the resentencing hearing. We conclude, beyond a reasonable doubt, that Carrasco suffered no prejudice, and therefore affirm.
FACTS
The facts were recited in Carrasco I as follows:
"On August 12, 2010 about 1:00 p.m., Nicholas E. was standing in the front courtyard area of an apartment complex in the City of Anaheim. He was a member of Anaheim Jungle City, a street gang in Anaheim. As of that time, Carrasco was an active participant in Anaheim Travelers City, another street gang in Anaheim. Anaheim Travelers City and Anaheim Jungle City did not 'get along.' The apartment complex was within the claimed territory of Anaheim Travelers City.
"While Nicholas E. was standing in the apartment courtyard, a white Honda Civic drove past. Inside the Honda were three men. They 'threw up gang signs' for Eastside, a street gang that was a rival of Anaheim Jungle City, and someone in the Honda called out, 'hey, what's up, Nicky.' Nicholas E. responded by saying, 'what's up.' Nicholas E. told someone standing with him that he did not know anyone in the Honda.
"After passing Nicholas E., the Honda parked 'half a football field away' from him. Nicholas E. went inside the apartment complex to speak with his father and, when he returned to the courtyard, the Honda was parked in the same spot. Carrasco got out of the Honda and walked over to an unidentified man who was standing across the street from Nicholas E. The man standing across the street had been 'dogging' (looking at) Nicholas E., who did not recognize or know anything about the unidentified man. Carrasco and the unidentified man had a brief conversation. During the conversation, the unidentified man looked directly, and pointed his finger, at Nicholas E., who looked the other way because he 'didn't want to start nothing.'
"Carrasco crossed the street, walked toward Nicholas E., and 'hit [him] up,' that is, asked him where he was from. Nicholas E. responded, 'Jungle City.' Carrasco said: '[F]uck Jungle City. This is Travelers.' Nicholas E. challenged Carrasco to a one-on-one fight.
"Carrasco replied, 'fuck that' and pulled a .32-caliber semiautomatic handgun from his waistband. As Nicholas E. ran away, Carrasco squatted and, assuming a two-handed shooting stance, shot him in the buttocks.
"Nicholas E. fell to the ground. Carrasco ran up to him, pointed the gun at his head, and moved the top slide of the gun back and forth to reload. A man called Joel Gonzalez yelled, '[t]hat's disrespect. You shot him once already in front of his dad.' Carrasco ran away.
"Nicholas E. suffered a bullet wound that caused a fracture to his pelvic bone and damage to his small intestine, colon, and the area behind the intestines. His injuries would have been potentially life threatening if left untreated. At the time of trial, Nicholas E. continued to experience pain from the gunshot wound." (Carrasco I, supra, G047903.)
PROCEDURAL HISTORY
A jury convicted Juan Manuel Carrasco of one count (count 2) of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and one count (count 3) of active participation in a criminal street gang (§ 186.22, subd. (a)). As to count 2, the jury found true these three sentence enhancement allegations:
Further code references are to the Penal Code.
The trial court declared a mistrial on count 1 (attempted murder) because the jury was unable to reach a verdict on that count, and it was dismissed on the prosecution's motion.
1. Carrasco personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)) (the firearm enhancement);
2. Carrasco committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)) (the gang enhancement); and
3. Carrasco personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) (the great bodily injury enhancement).
The trial court stayed execution of the sentence on count 3 pursuant to section 654. The court sentenced Carrasco to a term of 32 years in prison, calculated as follows: a base term of nine years on count 2; a consecutive term of 10 years on the firearm enhancement; a consecutive term of 10 years on the gang enhancement; and a consecutive term of three years on the great bodily injury enhancement.
In Carrasco I, supra, G047903, a panel of this court concluded the evidence was insufficient under People v. Rodriguez (2012) 55 Cal.4th 1125 to support the conviction for active participation in a criminal street gang. Carrasco argued, and the Attorney General agreed, that under section 1170.1, subdivisions (f) and (g), the trial court could not impose additional punishments on all three sentence enhancement allegations. We stated: "Which additional punishments may be imposed depends on whether the violent felony serving as the predicate for the additional punishment under section 186.22(b)(1)(C) is firearm use or infliction of great bodily injury. We leave such sentencing decisions to the trial court on remand." (Carrasco I, supra, G047903.) We reversed the conviction on count 3, reversed the sentences on the enhancement allegations, and remanded for resentencing consistent with section 1170.1, subdivisions (f) and (g). (Carrasco I, supra, G047903.)
On remand, the trial court conducted a sentencing hearing at which Carrasco was not present. His counsel waived his appearance because "I do not believe that it's necessary for him to be here for this purpose." The court agreed that Carrasco's presence was unnecessary because Carrasco I explained why the original sentence was improper and instructed the court on resentencing. The court dismissed count 3 and vacated the three-year great bodily injury enhancement on the ground it had been improperly imposed. The court imposed sentence of nine years on count two, 10 years consecutive on the firearm enhancement, and 10 years consecutive on the gang enhancement, for a total sentence of 29 years in state prison.
Carrasco sought habeas corpus relief when his counsel did not file a notice of appeal following resentencing. This court granted his petition for writ of habeas corpus, and Carrasco filed a notice of appeal.
DISCUSSION
A criminal defendant has a statutory and constitutional right to be present at resentencing. (People v. Robertson (1989) 48 Cal.3d 18, 60; People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414 (Sanchez).) This right can be waived only by the defendant executing a written waiver. (§ 977, subd. (b); see People v. Johnson (2013) 221 Cal.App.4th 943, 956-957.) The trial court therefore erred by resentencing Carrasco in his absence.
The trial court's error does necessarily require reversal. Because the right to be present for sentencing is constitutionally protected, prejudice is reviewed under the standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Pearl (2009) 172 Cal.App.4th 1280, 1294.) "Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt." (People v. Reese (2017) 2 Cal.5th 660, 671.)
Carrasco I gave the trial court a choice between two options when resentencing Carrasco. The trial court could either (1) use personal use of a firearm as the predicate felony for the additional punishment under section 186.22, subdivision (b)(1)(C), strike the 10-year firearm enchancement, and sentence Carrasco to a total of 22 years in prison or (2) use infliction of great bodily as the predicate felony for the additional punishment under section 186.22, subdivision (b)(1)(C), strike the three-year great bodily injury enhancement, and sentence him to a total of 29 years in prison. The trial court chose the latter and reduced Carrasco's sentence from 32 to 29 years.
Under the Chapman standard of harmless error, the question is, had Carrasco been present at the resentencing hearing, would the trial court, beyond a reasonable doubt, have chosen the same option? We conclude the Attorney General has met his burden of demonstrating the error was harmless beyond a reasonable doubt.
Carrasco's trial counsel forcefully, though unsuccessfully, argued the predicate felony was personal use of a firearm and great bodily injury "was merely a consequence of that predicate act." The trial judge stated he had "heard the trial" and was "aware of all the circumstances concerning the shooting incident." The Attorney General points out that Carrasco's presence at the resentencing hearing would not have made a difference to the court's decision because the same court had sat through the trial and was familiar with the evidence in the case. Carrasco has not explained what he would have said in personally addressing the court at resentencing, or anything he would have told his counsel, that might have persuaded the trial court to select the other sentencing option. (Cf. People v. Murray (2012) 203 Cal.App.4th 277, 290 ["Murray does not contend how having his mother or grandfather address the trial court would have added anything material"], disapproved on another ground in People v. Gutierrez (2012) 58 Cal.4th 1354, 1370-1371.)
The Attorney General met his burden of demonstrating harmless error by showing that under the facts and circumstances Carrasco's presence would not have made a difference. The Attorney General cannot prove a negative. If there was something Carrasco would have said or added by being present at the resentencing hearing, only he could explain what that might have been. He has not done so. In addition, Carrasco was present at the first sentencing hearing. He has not identified any fact or circumstance since the first sentencing hearing that might have altered the trial court's original sentencing decision.
The Attorney General and Carrasco both discuss Sanchez, supra, 245 Cal.App.4th 1409, in which the defendant claimed prejudice from being absent at a resentencing hearing. In Sanchez, the defendant initially had been sentenced to an aggregate sentence of 63 years to life in prison. The sentence included a 20-month sentence for a conviction that was vacated by a federal court and a 5-year concurrent sentence that had been stayed under section 654. (Sanchez, supra, at pp. 1412-1413.) The trial court denied the defendant's request to be present in court for the resentencing hearing. (Id. at p. 1413.) At the resentencing hearing, the court granted the prosecutor's motion to dismiss the count that was the basis for the conviction vacated by the federal court, lifted the section 654 stay on the 5-year concurrent sentence, and changed that sentence to one year eight months consecutive, to bring the aggregate term back to 63 years to life in prison. (Sanchez, supra, at pp. 1413-1414.)
The issue in Sanchez was whether the trial court had engaged in resentencing, for which defendant had a right to be present and represented by counsel. The Court of Appeal noted that if the trial court had done nothing more than lift the section 654 stay, then the defendant arguably was not denied his right to be present because he was present at the original sentencing. (Sanchez, supra, 245 Cal.App.4th at p. 1416.) But, the Court of Appeal concluded, the trial court not only lifted the section 654 stay; the court also changed the sentence. (Sanchez, supra, at p. 1416.) Had the court only lifted the stay, the defendant would have received an aggregate term of 61 years and four months. (Id. at pp. 1416-1417.) By changing the sentence on the previously-stayed concurrent sentence to a more onerous consecutive sentence, the trial court engaged in resentencing for which the defendant had a right to be present. (Id. at p. 1417.)
The Attorney General argues that Sanchez provides "some guidance on how to evaluate whether a defendant's absence from a resentencing hearing results in prejudice"; that is to say, the defendant suffers prejudice only by receiving a sentence less favorable than the original sentence. Carrasco argues that Sanchez supports the proposition that a defendant establishes prejudice by showing that resentencing was contested, the defendant was not present at the resentencing hearing, and the defendant received a sentence that was less favorable than was possible at the time of resentencing.
Neither the Attorney General nor Carrasco is correct. Sanchez does not address the issue of prejudice; it only addresses whether the trial court engaged in resentencing, an undisputed proposition here. The issue here is whether Carrasco suffered prejudice from the deprivation of the right to be present at resentencing. Prejudice in this situation means the trial court would have used personal use of a firearm as the predicate felony, and sentenced Carrasco to a total of 22 years in prison instead of 29 years, if he had been present at resentencing. The sentencing court had sat through the trial, was familiar with the evidence, and rejected the arguments of Carrasco's counsel at the resentencing hearing. In the absence of any suggestion that Carrasco had anything to contribute to the court or his attorney at the hearing, we conclude, beyond a reasonable doubt, that the error in resentencing Carrasco in his absence was harmless.
DISPOSITION
The judgment is affirmed.
FYBEL, J. I CONCUR: BEDSWORTH, ACTING P. J. Moore, J., Dissenting.
I respectfully dissent. Carrasco had a constitutional right to be present when the trial court sentenced him to state prison for 29 years. If Carrasco had been present at the resentencing hearing, the court may have imposed a 22-year sentence instead. The Attorney General has not proven otherwise. I have a reasonable doubt.
We must reverse Carrasco's sentence "unless the People can demonstrate that the error was harmless beyond a reasonable doubt." (People v. Reese (2017) 2 Cal.5th 660, 671, italics added, citing Chapman v. California (1967) 386 U.S. 18 (Chapman).) On the one hand, the majority recognizes that under Chapman, Carrasco has absolutely no burden here; it is entirely on the Attorney General. (Maj. opn., ante, at p. 5.) On the other hand, the majority asserts, "If there was something Carrasco would have said or added by being present at the resentencing hearing, only he could explain what that might have been. He has not done so." (Maj. opn., ante, at p. 7, italics added.) The majority cannot have it both ways. Further, this is not a writ; Carrasco cannot submit a declaration. Carrasco is stuck with the record on appeal. We cannot know what Carrasco might have said or added by being present at the resentencing hearing.
The majority also states, "The Attorney General cannot prove a negative." (Maj. opn., ante, at p. 7.) But under different circumstances, the Attorney General may have been easily able to demonstrate that Carrasco's absence from the resentencing hearing was harmless beyond a reasonable doubt. For example, if the trial court had imposed the lower of the two sentencing options. I recognize that the People's burden under these circumstances is particularly onerous, but that is the law under Chapman.
I would reverse Carrasco's sentence and grant him a new resentencing hearing.
MOORE, J.