Opinion
C098482
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. NOE SERRANO, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CR-FE-2020-0000575
DUARTE, J.
A jury found defendant Noe Serrano guilty of multiple felonies, including second degree murder (Pen. Code, § 187), and found true a firearm enhancement (§ 12022.53, subd. (d)) and special circumstance allegation (§ 190.2, subd. (a)(21)). The trial court sentenced defendant to an aggregate term of 48 years to life in prison.
Undesignated statutory references are to the Penal Code.
In our prior nonpublished opinion of November 1, 2022, this court vacated defendant's sentence and remanded for resentencing in light of recent amendments to section 1170 and the need to consider any other current law that would apply to him at the time of his resentencing. (People v. Serrano (Nov. 1, 2022, C094290) [nonpub. opn.].) On remand, the trial court again sentenced defendant to 48 years to life in prison, which sentence included several components that were subject to reduction through consideration of the new sentencing laws.
On appeal, defendant contends that the trial court erred in proceeding with the resentencing hearing in his absence and abused its discretion in denying defense counsel's request for a continuance to submit a resentencing brief. He adds an alternative argument of ineffective assistance of counsel, should we deem any of his appellate arguments forfeited due to counsel's deficient performance. We will reach the claims' merits and remand for resentencing.
PROCEDURAL HISTORY
The facts of this case are not relevant to our determination on appeal; we proceed with a brief recitation of the relevant procedural history.
In early 2021, a jury found defendant guilty of second degree murder (§ 187), willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle (§ 26100, subd. (c)), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). The jury also found true the firearm enhancement (§ 12022.53, subd. (d)) and the special circumstance allegation that defendant initially perpetrated the murder by discharging a firearm from a motor vehicle at another person outside the vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)).
At the June 2021 sentencing hearing, the trial court sentenced defendant to an aggregate term of 48 years to life in prison, consisting of: 20 years to life for second degree murder and 25 years to life for the attendant firearm enhancement; and the upper term of three years for felony evading a police officer. Pursuant to section 654, the court also imposed and stayed a five-year term for discharging a firearm from a vehicle and two years for being a felon in possession of a firearm. In declining to strike the firearm enhancement, the court noted that the "culpability of [defendant] is great in this case and I would not strike that given the evidence in the case that stands against him." The court found that the upper term was appropriate for the felony evasion offense due to defendant's "significant criminal history," felony convictions, and three prior prison terms.
Defendant appealed the judgment, contending that the trial court misinstructed the jury and remand was necessary in view of the Supreme Court's decision in People v. Tirado (2022) 12 Cal.5th 688 and amendments to section 1170. This court disagreed that there was instructional error but agreed remand was necessary to comply with section 1170 and any other current sentencing laws. We vacated the sentence and remanded for resentencing.
On February 14, 2023, the trial court ordered the warden or litigation coordinator to produce defendant remotely for his resentencing hearing on April 3, 2023. Both defendant and defense counsel were served with a copy of the order. At the resentencing hearing, the court confirmed that both counsel were present and then stated that "efforts were made to get [defendant] on the line" and added: "The prison system called to say he refuses to join us." The court then asked the clerk if that was a "fair statement"; the clerk responded, "Yes."
Nothing else was said about defendant's absence or any reason therefore, and no findings or even observations were made regarding a waiver of appearance, express or implied. No discussion was had regarding the propriety of proceeding in the interests of justice without defendant. No code sections were cited. Instead, defense counsel stated confusingly that he "understand the Court's position" (which had not yet been expressed, at least not on the record before us) and then asked for "the opportunity to submit a written brief . . . unless the Court is ready to rule now." The court responded that it was "ready to rule because we heard the whole trial."
The trial court acknowledged the changes in the law to sections 1385 and 1170, but ultimately imposed the same sentence, an aggregate term of 48 years to life in prison.
DISCUSSION
On appeal, defendant contends he had a constitutional and statutory right to be present at the resentencing hearing, and the trial court erred in proceeding with the resentencing in his absence without first obtaining a waiver from him or his counsel. The People concede that defendant did not explicitly waive his right to be present at the resentencing hearing but argue that his voluntary absence from the hearing enabled the trial court (and enables this court) to properly find an implied waiver of his right to be present. They also note that section 1193, subdivision (a) permits proceeding to judgment in defendant's absence if the court finds such a proceeding is in the "interest of justice."
"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." (People v. Concepcion (2008) 45 Cal.4th 77, 81.) This right extends to all" 'critical stages of the criminal prosecution'" and includes sentencing and resentencing. (People v. Cutting (2019) 42 Cal.App.5th 344, 347.)
The right to be present at resentencing may be waived. (People v. Concepcion, supra, 45 Cal.4th at p. 82.) "However, pursuant to section 977, subdivision (b)(1)-(2), in all cases in which a felony is charged, the defendant is required to be personally present at the time of the imposition of sentence unless he executed a written waiver of his right to be present or the waiver was properly entered orally on the record" by himself or his counsel. (People v. Velasco (2023) 97 Cal.App.5th 663, 673-674; § 977, subds. (b)(1) &(2).)
Here, as we have set forth above, although the record reflects that the clerk reported the "prison system" represented that defendant had "refused" to join the hearing, there is no written waiver. There is no evidence defendant previously entered a valid waiver on the record, and clearly neither defendant nor his counsel orally waived defendant's right to be present at the time of the hearing. (§ 977, subd. (b)(2)(A) &(B).) Although the People argue the mere reported representation of defendant's "refusal" was enough to constitute an implied waiver of defendant's right to be present, their cited authority does not support this assertion. They rely in large part on cases citing section 1043, subdivision (b)(2), which provides that a trial may continue--even without an express waiver--in a defendant's absence when that defendant is voluntarily absent after the trial has commenced in that defendant's presence. But the instant proceeding was a resentencing, held after a remand from this court, commenced years after defendant had been tried and sentenced and was already serving his prison sentence for his crimes. There is simply no indication that defendant knew he had a constitutional and statutory right to be present at resentencing and knowingly or even impliedly waived that right.
The trial court made no factual determinations and gave no reasons for proceeding in defendant's absence; the court did not find that defendant had impliedly waived his right to be present and did not make any interest of justice determinations. Even had such findings and determinations been made, on this record it is far from certain that they would have been supported by substantial evidence. As appellate counsel points out in their briefing: "For all the court knew, [defendant] was feeling ill that day. There is certainly no evidence he was a problem defendant and no evidence he was informed of his rights."
This deficiency in the record supporting the People's argument that we should find an implied waiver was compounded by the trial court's failure to grant defense counsel the requested continuance for counsel to file a new sentencing brief, presumably after conferring with defendant. Although the People argue that defendant filed a sentencing brief at his initial sentencing, that was prior to the significant changes in the law that resulted in remand for resentencing years later.
When errors involving a defendant's federal constitutional rights are implicated, the standard set forth in Chapman v. California (1967) 386 U.S. 18 applies, and the error is prejudicial and requires reversal unless we can conclude beyond a reasonable doubt that it did not affect the outcome of the proceeding. (People v. Cutting, supra, 42 Cal.App.5th at p. 348.) In this case, had defendant been present at the hearing, he may have "offered mitigating factors that arose after his original sentencing; he may have expressed remorse; [or] he may have made a plea for leniency." (Id., at p. 350.) Defendant raises this argument in the instant case, and the People dismiss it as speculative without acknowledging the language in Cutting supporting defendant's argument; indeed, the People do not cite Cutting in their briefing. Because defendant was not at the hearing despite the lack of waiver, and counsel was not permitted time to file briefing once defendant's absence was revealed, we simply do not know what could or would have been presented at the hearing in the absence of error. Therefore, we cannot conclude the error was harmless beyond a reasonable doubt. Accordingly, we reverse and remand the matter for resentencing.
DISPOSITION
Defendant's sentence is vacated, and the matter is remanded for full resentencing in compliance with the current law.
We concur: Robie, Acting P.J., Ashworth, J. [*]
[*] Judge of the El Dorado County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.