Opinion
G062243
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALVIN PURDIE, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County, No. FSB1200522 Michael A. Smith, Judge. (Retired judge of the San Bernardino County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Constitution.) Reversed and remanded.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Richard Purdie contends the trial court violated his constitutional rights by holding his resentencing hearing under Penal Code section 1170.18 in his absence, without obtaining a waiver of his presence. The Attorney General agrees. We likewise agree and therefore reverse the judgment and remand.
Undesignated statutory references are to the Penal Code.
Given our conclusion, we need not address Purdie's claim-with which the Attorney General also agrees-that the abstract of judgment filed after the challenged resentencing hearing contained a clerical error.
FACTS
In 2013, a jury convicted Purdie of possession of a firearm by a felon (count 2), residential burglary (count 9), and felony receipt of stolen property (counts 1013). In a bifurcated proceeding, the trial court found true various allegations, including that Purdie had two prior strike convictions and prior serious felony convictions. The court sentenced him to prison for 25 years to life, plus 19 years, which included 16 months for each of counts 10, 11, and 12 (receipt of stolen property) and five years for a prior serious felony.
The court imposed and stayed a six-year sentence on the remaining count of receipt of stolen property.
In 2014, voters enacted Proposition 47, which reduced to misdemeanors certain theft-related offenses that had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors). (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 "also added . . . section 1170.18, which permits those previously convicted of felony offenses that Proposition 47 reduced to misdemeanors to petition to have such felony convictions resentenced or redesignated as misdemeanors." (People v. Buycks (2018) 5 Cal.5th 857, 870-871, fn. omitted.)
In March 2022, Purdie petitioned for resentencing under section 1170.18. On December 16, 2022, the trial court held a resentencing hearing. The parties agree Purdie was not present at the hearing, and the record reflects no waiver of his appearance there. The court reduced Purdie's convictions for receipt of stolen property to misdemeanors. After applying various intervening changes in sentencing law and making other modifications, the court sentenced him to prison for 25 years to life, plus five years. It retained the five-year term for the prior serious felony. Purdie appealed.
The trial court's minute order stated Purdie was not present. The reporter's transcript of the hearing included Purdie in the list of appearances, but nothing else suggested he was present. Given the parties' agreement that Purdie was not at the hearing, we give no significance to the reporter's transcript's notation that he was present.
DISCUSSION
Purdie claims the trial court violated his constitutional right to be present at his resentencing hearing. The Attorney General agrees, as do we.
"'"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 . . . sections 977 and 1043."' [Citations.] The defendant's federal constitutional right to be personally present at trial 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" [citation], or "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."' [Citations.] [¶] 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. [Citations.]" (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348 (Cutting).)
Holding the resentencing hearing without either Purdie's presence or his waiver of it was error. (Cutting, supra, 42 Cal.App.5th at pp. 347-348.) This error is subject to review for harmless error under Chapman v. California (1967) 386 U.S. 18. (Cutting, at p. 348.) Under that standard, the error may be deemed harmless only if the Attorney General shows beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding. (Id. at pp. 348, 349.) The Attorney General does not contend the error was harmless beyond a reasonable doubt but instead agrees that the matter should be reversed and remanded. Accordingly, we will remand the matter for a new resentencing hearing.
DISPOSITION
The judgment is reversed, and the matter is remanded for a new resentencing hearing.
WE CONCUR: GOETHALS, J. DELANEY, J.