Opinion
E079877
05-09-2024
THE PEOPLE, Plaintiff and Respondent, v. CURTIS B. JOSHUA, Defendant and Appellant.
Milena Blake and Three Strikes Project, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FWV027967 Ingrid A. Uhler, Judge. Reversed with directions.
Milena Blake and Three Strikes Project, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAPHAEL J.
Curtis Joshua appeals the denial of his Penal Code section 1172.1 petition for resentencing. Joshua argues the trial court erred, both in how it exercised its discretion in resentencing him, and by conducting the resentencing hearing in his absence and without a valid waiver of his presence. The People concede the trial court erred by holding a resentencing hearing in Joshua's absence. We agree with both parties, and reverse and remand on both grounds.
Unlabeled statutory citations refer to the Penal Code.
BACKGROUND
In 2005, a jury convicted Joshua of second degree robbery (§ 211), criminal threats (§ 422), and evading a peace officer (Veh. Code, § 2800.2, subd. (a)). (People v. Joshua (Aug. 17, 2006, No. E038511) [2006 WL 2374759 at p. *1, *11] [nonpub. opn.].) The court sentenced Joshua to an aggregate term of 30 years to life, composed of a 25 years to life sentence, and an additional five-year enhancement under section 667, subdivision (a)(1). (People v. Joshua, E038511 .)
In December 2022, the California Department of Corrections and Rehabilitation (CDCR) informed the court that Joshua was eligible for resentencing under section 1172.1 and recommended he be resentenced. The court acknowledged receipt of this letter on the record on January 19, 2023, set a hearing for February, and notified the conflict panel and district attorney. On January 31, Joshua's current counsel-Milena Blake-notified the court that she represented Joshua and requested that all communications be directed to her. The court acknowledged receipt of this notice of appearance on the record on February 3, 2023. On the same date, the court held that it lacked jurisdiction to consider the CDCR's resentencing request until resolution of a different appeal.
The appeal was resolved later that month, and the court immediately set a resentencing hearing. However, it notified only the district attorney and a conflict panel attorney, not Blake.
The court held the resentencing hearing in March 2023. Joshua was not present, and neither was his attorney, Blake. Instead, Joshua was represented by a conflict panel attorney. This attorney purported to waive Joshua's presence, though the only record evidence of such a waiver is the court stating Joshua's attorney "indicate[d] that he's waiving his client's presence."
At the hearing, the court struck the five-year enhancement, but did not otherwise change Joshua's sentence. The court also denied Joshua's request to substitute Blake as the attorney of record for Joshua, "[b]ecause at this stage, the only issue before the Court was whether or not I should use my discretion to strike the 667(a)(1) prior. I did grant that request, and there's no need to continue to grant that request."
There is no separate request in our record, and the Peoples' brief cites only to Blake's notice of appearance. Therefore, it is unclear whether the court is referencing a request which, we do not have, or is mistakenly referring to the notice of appearance as a request to substitute counsel.
Joshua moved to have the court reconsider its decision, which the court denied in a written decision. The court stated it was denying the request for reconsideration in part because "1172.1 PC is a specific statutory provision to modify the sentence, not at the defendant's request, but at the direction of either the secretary of the Board of Parole Hearings or the district attorney's office. As indicated, the court granted the request." It further explained "that the defendant's judgment has long been final and [the court] does not believe that the application of the 'full resentencing rule,' as outlined in People [v.] Buycks, Taylor, and Choi apply. At the time of the sentencing the court exercised its discretion and denied the defendant's request to strike any prior serious/violent felonies .... The court sees no need . . . to again exercise its sentencing discretion." The court cited People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15 (Buycks) to support this conclusion.
The reference to the "secretary of the Board of Parole Hearings" was inaccurate. Section 1172.1 says that the secretary-there meaning the Secretary of the CDCRor the Board of Parole Hearings may recommend resentencing, not the secretary of the Board of Parole Hearings. (§ 1172.1, subd. (a).) Also, in addition to the secretary, the Board of Parole Hearings, and the district attorney, the county correctional administrator and Attorney General may also recommend resentencing in certain circumstances. (Ibid.)
The court did not include full citations to the cases it refers to as "Choi," and "Taylor." However, we suspect the court meant People v. Choi (2021) 59 Cal.App.5th 753 (Choi) and People v. Taylor (2020) 43 Cal.App.5th 1102.
ANALYSIS
The People concede that the trial court erred by holding a hearing on his petition without him present. In addition, Joshua argues that relief under section 1172.1 means a full resentencing, starting anew and with no deference to earlier sentencing decisions, and that the trial court here failed to fully resentence him. We agree with both parties.
Under section 1172.1, a "court may . . . at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced . . . provided the new sentence, if any, is no greater than the initial sentence." (§ 1172.1, subd. (a)(1).) "If a resentencing request pursuant to subdivision (a) is from the Secretary of the Department of Corrections and Rehabilitation," then "[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety." (§ 1172.1, subd. (b)(2).)
"' "A defendant has the constitutional right to be personally present in court 'where necessary to protect the defendant's opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding.'" '" (People v. Quan (2023) 96 Cal.App.5th 524, 532 (Quan).) "Sentencing and resentencing hearings are critical stages in a criminal proceeding." (Ibid.) "In certain circumstances, defense counsel may waive a defendant's presence but '[a]t a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so.'" (Id. at p. 535.) Because a violation of the right to be present is a violation of a federal constitutional right, it "must be assessed for prejudice under Chapman v. California (1967) 386 U.S. 18, 24," which means, "we ask whether his absence was harmless beyond a reasonable doubt." (People v. Basler (2022) 80 Cal.App.5th 46, 59; see also Quan, supra, 96 Cal.App.5th at p. 536.)
We agree with the People that Joshua had a constitutional right to be present for any resentencing under section 1172.1. We also agree with the People that his attorney's purported waiver-which did not happen on the record and was only attested to by the court-was not sufficient because there is no reason to believe Joshua" 'understood the right he was waiving and the consequences of doing so.'" (Quan, supra, 96 Cal.App.5th at p. 535; see also § 977, subd. (b)(2)(B) [allowing waiver through counsel only "after counsel has stated on the record that the defendant has been advised of the right to be physically or remotely present for the hearing at issue," and "has waived that right"].) Finally, we agree with the People that "the record before this court contains no basis from which to find the error harmless beyond a reasonable doubt." Indeed, given the additional errors discussed below, there is sufficient evidence to conclude Joshua's absence may have actively harmed him because he could not object to the court's erroneous conduct. This constitutional violation alone would compel reversal and remand for resentencing.
However, we also agree with Joshua that the court additionally erred by not conducting a proper, full resentencing." 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez), quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
The trial court here did not "resentence the defendant in the same manner as if [he] had not previously been sentenced." (§ 1172.1, subd. (a)(1).) Instead, the court incorrectly stated "the only issue before the Court was whether or not I should use my discretion to strike the 667(a)(1) prior." In fact, the court was also empowered to strike one or more prior strikes and resentence Joshua accordingly, and to make any other discretionary decision available to the court at an initial sentencing. (See § 1385, subd. (b); see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The court's deference to Joshua's initial sentence was incorrect.
The court's written denial of Joshua's motion for reconsideration repeats the same error, as shown by its reliance on Buycks and Choi. These cases do not apply here. In Buycks, our Supreme Court concluded a lower court's resentencing decision under Proposition 47 was erroneous and a portion of it needed to be stricken. (Buycks, supra, 5 Cal.5th at p. 896.) The court then noted the "full resentencing rule" usually requires "that when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.'" (Id. at p. 893.) However, in Buycks the Supreme Court declined to remand for resentencing "[b]ecause the resentencing court had imposed the maximum possible sentence," and therefore, "there is no need to remand the matter to the trial court to exercise its sentencing discretion anew." (Id. at p. 896, fn. 15.) Choi addressed a similar issue, though concluded full resentencing was appropriate. (Choi, supra, 59 Cal.App.5th at p. 770.)
Thus, Buycks and Choi, and the "full resentencing rule" they discuss, are about what appellate courts should do when faced with errors that may require resentencing. They do not apply to trial courts resentencing a defendant under section 1172.1. In this circumstance, the trial court is not reviewing a prior sentencing decision and correcting an error, but instead exercising the sentencing power as if it were the first court to do so, limited only in that it cannot impose a sentence greater than the original sentence. How the prior sentencing court exercised its discretion is irrelevant, except to that limited extent.
Because the resentencing court misunderstood the question before it, there is no basis in the record to say it "would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Gutierrez, supra, 58 Cal.4th at p. 1391.) Therefore, reversal and remand for resentencing is the appropriate remedy for this error as well.
DISPOSITION
We reverse the trial court's sentencing order, and remand for a new resentencing hearing under section 1172.1.
We concur: CODRINGTON Acting P. J. FIELDS J.