Opinion
F086758
08-05-2024
THE PEOPLE, Plaintiff and Respondent, v. JULIAN CASTRO ALDERETE, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF246720. Jennifer Conn Shirk, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Julian Castro Alderete moved for resentencing pursuant to former Penal Code section 1171.1 (now § 1172.75). At a resentencing hearing, the trial court struck a prior prison term enhancement under section 667.5, subdivision (b). Defendant was not present at this hearing.
Subsequent statutory citations refer to the Penal Code.
On appeal, defendant makes three contentions. First, the case should be remanded for resentencing "with explicit directions" to the trial court "to have [defendant] present unless [he] submits an informed written waiver of his right to presence" and "to exercise discretion under the amended sentencing statutes." (Boldface &capitalization omitted.) Second, on remand, the trial court "should award credit for all days actually served through the date of resentencing." (Boldface &capitalization omitted.) Finally, a clerical error in the abstract of judgment must be corrected.
In the respondent's brief, the Attorney General concedes (1) "a remand is appropriate to conduct a full resentencing hearing in [defendant]'s presence"; (2) defendant "is entitled to credits for all time spent in custody up through and including the date of resentencing"; and (3) "the abstract of judgment contains a clerical error." Considering these concessions, we reverse the postjudgment order; remand the matter for a full resentencing hearing in defendant's presence and an updated calculation of his custody credits; and direct the trial court to correct the abstract of judgment.
Defendant filed a motion for judicial notice of People v. Alderete (Dec. 19, 2012, F063563), a nonpublished opinion. We deferred a ruling pending consideration of the appeal on its merits. On February 22, 2024, we gave the Attorney General 15 days' leave to file an informal response to the motion and advised "[f]ailure to file an informal response may be deemed agreement [defendant]'s request be granted." The Attorney General did not file a response. Having considered the appeal on its merits and in light of the Attorney General's failure to respond, we grant defendant's motion.
In 2011, defendant was charged with one count of first degree residential robbery (§ 211 [count 1]), three counts of first degree burglary with a person other than an accomplice present (§ 459 [counts 2, 7 &8]), two counts of grand theft firearm (§ 487, subd. (d)(2) [counts 3 &4]), two counts of elder abuse (§ 368, subd. (b)(1) [counts 5 &10]), one count of firearm possession by a convicted felon (former § 12021, subd. (a)(1) [count 6]), and one count of assault with a deadly weapon (§ 245, subd. (a)(1) [count 9]). The information further alleged: (1) in connection with all counts, defendant had been released from custody on bail or his own recognizance (§ 12022.1) and served a prior separate prison term (§ 667.5, former subd. (b)); (2) in connection with count 1, he personally used a firearm (§ 12022.53, subd. (b)); (3) in connection with counts 2 through 5, he personally used a firearm (§ 12022.5, subd. (a)); (4) in connection with counts 8 through 10, he personally inflicted great bodily injury on a person 70 years of age or older (§ 12022.7, subd. (c)); and (5) in connection with counts 8 and 10, he personally used a deadly weapon (§ 12022, subd. (b)(1)). Following trial, the jury found defendant not guilty as to counts 3 and 4 but found him guilty as to the remaining counts and found true the special allegations related thereto except the great bodily injury allegation as to count 10.
The jury did not make an express finding as to this allegation, which was subsequently stricken following an appeal. (See People v. Alderete, supra, F063563.)
The trial court ultimately imposed an aggregate sentence of 28 years four months: the upper term of six years-plus 10 years for the personal firearm use enhancement, two years for the on-bail enhancement, and one year for the prior prison term enhancement- on count 1; a consecutive eight months (one-third the middle term) on count 6; a consecutive one year four months (one-third the middle term) on count 7; and a consecutive one year four months (one-third the middle term)-plus five years for the great bodily injury enhancement and one year for personal firearm use-on count 8. (People v. Alderete, supra, F063563.) On appeal, this court-among other things- (1) found the evidence insufficient to support a conviction for first degree robbery on count 1 and modified the judgment to reflect a conviction for second degree robbery (see ibid.); (2) concluded the great bodily injury enhancement on count 8 must be reduced to one year eight months pursuant to section 1170.1, subdivision (a) (see ibid.); and (3) determined the trial court erroneously imposed one year for personal firearm use on count 8 and instead should have imposed four months for personal deadly weapon use under section 12022, subdivision (b)(1) (see ibid.). An abstract of judgment filed April 3, 2013, showed an updated aggregate sentence of 23 years four months. The abstract of judgment also indicated a great bodily injury enhancement on count 10 was stayed.
The trial court concurrently imposed the middle term of four years-plus 10 years for the personal firearm use enhancement-on count 2 and stayed execution of punishment on counts 5, 9, and 10 pursuant to section 654. Following appeal, execution of punishment on count 2 was also stayed. (See People v. Alderete, supra, F063563.)
On November 17, 2021, defendant filed the resentencing motion. In a memorandum to the trial court dated September 9, 2022, the California Department of Corrections and Rehabilitation stated defendant was entitled to have the one-year prior prison term enhancement stricken. On June 2, 2023, the prosecution filed a document entitled "DISTRICT ATTORNEY RESPONSE FOR RESENTENCING" in which it (1) agreed defendant "is entitled to resentencing under [section] 1172.75" and the prior prison term enhancement should be stricken; (2) recognized defendant "suffered other enhancements"; and (3) requested "a full resentencing hearing prior to modification of any other term or enhancement."
A resentencing hearing was held on June 29, 2023. Defendant was not present. The following exchange took place:
"THE COURT: ....[¶] . . . [¶] [Defense counsel], you waive your client's presence?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: And he had one [section] 667.5[, former subdivision ] b) enhancement for a year, which made it 23 years and 4 months. And everyone agrees that the new term would be 22 years and 4 months with the striking [section] 667.5[, former subdivision ](b)?
"[DEFENSE COUNSEL]: Yes.
"[PROSECUTOR]: Yes.
"THE COURT: Anything else . . . ?
"[PROSECUTOR]: No.
"THE COURT: All right."
The trial court ordered the prior prison term enhancement to be stricken. An abstract of judgment filed June 29, 2023, no longer listed the prior prison term enhancement and showed an updated aggregate sentence of 22 years four months. The abstract of judgment still indicated the great bodily injury enhancement on count 10 was stayed.
DISCUSSION
I. Background
"Before January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a prior prison term and had not remained free of custody for at least five years. [Citation.] Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) . . . amended section 667.5 by limiting the enhancement to only prior prison terms served for sexually violent offenses. [Citation.] Enhancements based on prior prison terms served for other offenses became legally invalid. [Citation.]" (People v. Carter (2023) 97 Cal.App.5th 960, 966.)
"In 2021, the Legislature enacted Senate Bill No. 483 (2021-2022 Reg. Sess.) . . ., which, among other things, made the changes implemented by Senate Bill [No.] 136 retroactive. [Citation.] Senate Bill [No.] 483 added former section 1171.1, later renumbered as section 1172.75 [citation], to the Penal Code. [Citation.]" (People v. Carter, supra, 97 Cal.App.5th at p. 966, fn. omitted.) Section 1172.5, subdivision (a) provides:
"Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid."
"Once the Department of Corrections and Rehabilitation identifies those persons 'currently serving a term for a judgment that includes an enhancement described in subdivision (a)' to the sentencing court, 'the court shall recall the sentence and resentence the defendant.'" (People v. Monroe (2022) 85 Cal.App.5th 393, 399, quoting § 1172.75, subds. (b) &(c).) Resentencing "shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety" (§ 1172.75, subd. (d)(1)) and "shall not result in a longer sentence than the one originally imposed" (ibid.). "The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (Id., subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (Id., subd. (d)(3).)
II. Analysis
a. Remand for resentencing
On appeal, defendant contends he had a legal right to be present at the June 29, 2023 resentencing hearing and never waived said right. (See People v. Velasco (2023) 97 Cal.App.5th 663, 673-674 ["[P]ursuant 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."]; People v. Simms (2018) 23 Cal.App.5th 987, 996 [right to be present "extends to sentencing and resentencing proceedings"].) He also contends the trial court failed to "recognize its statutory obligation under section 1172.75 to engage in a complete resentencing upon striking [the prior prison term] enhancement" and apparently "assumed it was excused from doing so if counsel for the parties were content with simply striking the enhancement." (Italics omitted; see People v. Monroe, supra, 85 Cal.App.5th at p. 402 ["By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements."].)
The Attorney General concedes defendant "had a right to be present"; "the record does not reflect a valid waiver of that right under either state law or the federal Constitution"; "error cannot be said to be harmless beyond a reasonable doubt"; and "remand is appropriate to conduct a full resentencing hearing in [defendant]'s presence." We accept these concessions.
Consequently, we need not address defendant's alternative claim of ineffective assistance of counsel.
b. Recalculation of custody credits
Next, defendant contends the trial court must be directed "on remand to calculate and grant credit for all days served up to and including the date of resentencing." (See People v. Sek (2022) 74 Cal.App.5th 657, 673 [" '[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.' "].) The Attorney General concedes "a trial court must, upon resentencing, award actual custody credits based on the date of resentencing" and "the court can properly calculate custody credits as of the resentencing date on remand." We accept these concessions.
c. Clerical error
Finally, defendant points out the June 29, 2023 abstract of judgment still lists a great bodily injury enhancement under section 12022.7, subdivision (c) on count 10. The jury did not make an express finding as to this allegation and said allegation was stricken following an appeal. (See ante, fn. 3.) Defendant asks for modification of the abstract of judgment "to omit any reference to a great bodily injury enhancement attached to the term for count 10." (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts have inherent power to correct clerical errors in abstracts of judgment].) The Attorney General concedes the trial court must be directed "to remove reference to the great bodily injury enhancement as to count 10." We accept this concession.
DISPOSITION
The postjudgment order is reversed. The matter is remanded for a full resentencing hearing in defendant's presence (unless defendant waives the right) and an updated calculation of his custody credits. The new abstract of judgment shall reflect the correct number of custody credits and not include any reference to a great bodily injury enhancement under section 12022.7, subdivision (c) on count 10.
[*]Before Hill, P. J., Detjen, J. and Franson, J.