Opinion
F086666
10-30-2024
THE PEOPLE, Plaintiff and Respondent, v. GILBERT ARIZMENDEZ BARRIGA, Defendant and Appellant.
Jake Stebner, 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, Kimberley A. Donohue and Carly Orozco, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF169612A. John D. Oglesby, Judge.
Jake Stebner, 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, Kimberley A. Donohue and Carly Orozco, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Gilbert Arizmendez Barriga, appellant, appeals from a resentencing proceeding conducted following remittitur in his prior appeal. Appellant argues the trial court did not exercise its full discretion during resentencing, and did not obtain a valid waiver of appellant's right to be personally present at resentencing. The Attorney General concedes the court conducted resentencing without a valid waiver. We remand for a new resentencing hearing.
People v. Barriga (Mar. 30, 2023, F082556), a nonpublished opinion.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
We omit the facts underlying appellant's conviction as not pertinent to the legal issues in this appeal.
On February 18, 2021, appellant was convicted by jury of four counts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1-3 &10), one count of sexual penetration with a child 10 years old or younger (§ 288.7, subd. (a); count 6), three counts of oral copulation with a child 10 years old or younger (§ 288.7, subd. (b); counts 4, 5 &8), and two counts of continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a); counts 7 &9) for the sexual abuse of his stepdaughter and two step-granddaughters. The jury further found true the "one strike" special allegation pursuant to section 667.61, subdivision (e)(4). Appellant was sentenced to an aggregate term of 115 years to life plus 10 years in prison.
Undesignated statutory references are to the Penal Code.
Following a timely appeal, this court affirmed the judgment but remanded the matter for resentencing due to Senate Bill No. 567's (2021-2022 Reg. Sess.) amendments to section 1170, subdivision (b)(6).
The trial court held a resentencing hearing on July 14, 2023. At the hearing, the court asked appellant's trial counsel if he would waive appellant's presence, to which counsel responded, "So waived." The court proceeded to hear argument regarding the applicability of sections 1170, subdivision (b)(6) and 1170.9. The court found appellant's trauma was not connected to, or related, or linked to his criminal conduct, and the court could not give it significant mitigating weight.
However, the trial court found "in light of the length of time that's already been imposed on the indeterminant sentence, the Court does not really see that the interest[s] of justice are served because this - if I impose low term versus the midterm, we're looking at a five-year swing on a 120-year sentence as it is. So I am inclined to impose the lower term, and those would simply be on Count 1, Count 2, and Count 10."
The trial court imposed the low term of three years on count 1, and one-third the low term on counts 2 and 10 (one year each), for a total of five years as a determinant sentence consecutive to the indeterminant sentence previously imposed. The court concluded the remaining counts were not affected by the sentence imposed, recalculated appellant's updated time credits and reiterated the previously imposed fines.
An amended "determinate term" felony abstract of judgment was filed July 14, 2023, which contained the new determinate terms and updated time credits. The trial court did not prepare an abstract of judgment for appellant's indeterminate terms.
DISCUSSION
The Sentencing Hearing Was Conducted in Appellant's Absence Without a Valid Waiver
Appellant argues the trial court conducted the July 14, 2023, resentencing hearing without appellant present, and without a valid waiver. Appellant further argues the court did not exercise its full discretion at the hearing, and the amended abstract of judgment does not properly reflect appellant's sentence. The Attorney General concedes the record does not indicate a valid waiver of appellant's presence, and that remand is appropriate.
A criminal defendant's right to be personally present at trial and by extension all critical stages of the criminal prosecution, including sentencing and resentencing, is guaranteed in the federal Constitution by the confrontation clause of the
Sixth Amendment and the due process clause of the Fourteenth Amendment. (People v. Velasco (2023) 97 Cal.App.5th 663, 673 (Velasco).) It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043. (Ibid.)
Section 977, subdivision (b)(1) requires a defendant "be physically present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be physically or remotely present at all other proceedings unless they waive their right to be physically or remotely present, with leave of court and with approval by defendant's counsel."
"The waiver of a defendant's right to be physically or remotely present may be in writing and filed with the court or, with the court's consent, may be entered personally by the defendant or by the defendant's counsel of record." (§ 977, subd. (b)(2).)
"A waiver of the defendant's physical or remote presence may be entered by counsel, 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, has waived that right, and agrees that notice to the attorney that the defendant's physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement." (§ 977, subd. (b)(2)(B).)
Appellant argues, and the People agree, the record does not indicate that appellant had been advised of his right to be physically or remotely present for the July 14, 2023, resentencing, or that he waived that right. The waiver consisted only of the trial court asking appellant's counsel if he would waive appellant's presence, and counsel responding, "So waived." Such a waiver is statutorily insufficient and therefore invalid.
"As a matter of both federal and state constitutional law, ... a defendant may validly waive his or her right to be present during a critical stage of the trial, provided the waiver is knowing, intelligent, and voluntary." (People v. Cunningham (2015) 61 Cal.4th 609, 633.)" '[T]he court can rely upon the representations of defense counsel that the accused was knowingly absent from the proceedings.'" (People v. Fedalizo (2016) 246 Cal.App.4th 98, 110.) In this case, appellant's counsel did not indicate that appellant authorized the waiver, and there was no evidence on the record that otherwise showed that the waiver, through counsel, was "knowing." (Cunningham, at p. 633.) The waiver is therefore constitutionally insufficient and invalid.
"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." (Velasco, supra, 97 Cal.App.5th at p. 674.)
Appellant argues and the People agree the error cannot be shown, on the record, to be harmless beyond a reasonable doubt. Although the trial court ultimately granted appellant the low term on his determinate sentences, appellant was entitled to a full resentencing. "[O]n 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.'" (People v. Buycks (2018) 5 Cal.5th 857, 893.) Had appellant been present, "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.'" (Velasco, supra, 97 Cal.App.5th at p. 674.) As such, this case must be remanded to conduct a resentencing hearing with appellant present or with his valid waiver.
Because we remand this case for further proceedings, we do not reach appellant's argument that the trial court did not exercise its full discretion at the resentencing hearing, nor appellant's contention the abstract of judgment does not properly reflect appellant's sentence. Upon remand, the court will have an opportunity to conduct a full resentencing pursuant to People v. Buycks, supra, 5 Cal.5th 857, and prepare a new abstract of judgment reflecting appellant's sentencing, including appellant's determinate and indeterminate terms.
DISPOSITION
The sentence is vacated and the matter remanded for a full resentencing hearing in appellant's presence or with appellant's waiver. Following resentencing, the trial court is directed to prepare an amended abstract of judgment with both determinate and indeterminate sentences and to forward the abstract to the appropriate authorities.
[*] Before Levy, Acting P. J., Snauffer, J. and DeSantos, J.