Opinion
G036367
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CARMI, Defendant and Appellant.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Joseph Carmi appeals from the resentencing which followed our remand to correct the original sentencing courts erroneous choice in the principal term. We affirmed his conviction for making a criminal threat while using a gun and four counts of discharging a firearm with gross negligence (see Pen. Code, §§ 246.3, 422, 12022.5, subd. (a)) previously, but remanded for the sentencing error. Carmi now contends the court erred in the second sentencing by imposing the corrected sentence without his presence. Carmi maintains that he suffered prejudice as a result of this error and thus, is entitled to a new sentencing hearing. We disagree and affirm.
In an unpublished opinion, we upheld the conviction in case numbered G033219 but reversed and remanded the judgment for resentencing.
All further section references are to the Penal Code unless otherwise stated.
FACTS
To be sure, Carmi was not present at the resentencing hearing. But his counsel stipulated that the sentencing could proceed without Carmi and without a personal waiver from him, because "the actual sentence [did] not change." The sole point of the remand was to provide the sentencing court an opportunity to declare its rationale for the authorized sentence.
The trial court originally sentenced Carmi to a term of 9 years, 8 months, and determined that the principal count was the firearms discharge. We reversed this sentencing choice, holding that the trial court erred in choosing this particular offense for the principal term. At this point it is important to note that the problem was not with the length of the sentence; rather, the reversal was predicated upon a technical error in selecting an offense which did not carry the longest possible term as the principal term. Upon resentencing, the same length of service was imposed, but the court concluded that the criminal threats charge was to be the principal term. Thus, the court imposed the upper term of three years for the criminal threats, four years for personal use of a firearm (§ 12022.4, subd. (a)), followed by four consecutive terms of eight months each for discharging a firearm with gross negligence. (§ 246.3.) The resentencing court stated its reason for consecutive service because "separate acts of violence [were committed] and were independent of one another."
On appeal, defense counsel and the Attorney General agree that the trial court erred when it decided to proceed without Carmis presence; however, their opinions diverge as to whether the error was harmless. Carmi claims that his absence from the resentencing hearing prejudiced him in that "he was not [personally] present at the hearing to object to the proceedings, and the attorney representing him did not object to the sentencing." He argues that the trial courts error was not harmless, and that, absent the error, there was a "reasonable probability of a different result."
The Attorney General asserts that the error was harmless, as the trial court "made it clear [from the beginning] it was going to sentence [Carmi] to the same term to which he was previously sentenced." Thus, Carmi "has not suffered any prejudice by his resentencing hearing proceeding in his absence."
DISCUSSION
A. Presence at Resentencing
"A criminal defendants right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code." (People v. Hines (1997) 15 Cal.4th 997, 1038-1039, emphasis added.) However, this guarantee does not afford the defendant the right to be present at every hearing; he or she is entitled to be present for only those proceedings that "bear[] a reasonable and substantial relation to his full opportunity to defend against the charges. [Citation]." (Id. at p. 1039.)
A sentencing hearing is a proceeding that comes within the purview of this definition. (People v. Arbee (1983) 143 Cal.App.3d 351, 355-356.) However, for a defendant to prevail where a violation is claimed, he must demonstrate that he was prejudiced or was in some way denied a fair and impartial trial as a result. (People v. Hines, supra, 15 Cal.4th at p. 1039.)
Carmi has made no indication of how his situation would have improved had he been present. In his brief, Carmi eludes to an argument that his absence hindered his trial counsel from effectively representing him. He claims that his absence denied him the opportunity to refute evidence in aggravation and to present mitigating evidence.
It is clear from the record that the court heard all it needed at the original sentencing hearing. During the discussion regarding Carmis absence, the judge explicitly stated that the length of the sentence would be the same and the sole issue was the choice of the principal term. Neither Carmis presence nor any argument lauding his virtues would have affected the term imposed. The trial court made it clear that the length of the sentence would not change, and its reasons for imposing the upper terms to be served consecutively mimicked those it gave during the first sentencing hearing. There was absolutely no indication that the result of the hearing could have been any different had Carmi been present.
To the extent that a claim of ineffective assistance of counsel is implied in Carmis briefs, we need address the point only to note there is a tactical reason for defense counsels stipulation that Carmis presence was unnecessary to the proceedings. It is clear from the record that the length of the sentence was not going to change, regardless of who was at the proceeding. In light of the courts staunch commitment to the imposition of the same-length term, defense counsels decision to forgo the transport of Carmi from state prison, where his personal items were at risk of being commandeered by the other inmates, was reasonable as serving a strategic purpose advantageous to Carmi.
B. Failure to Order a Supplemental Probation Report
Carmi claims that he was prejudiced by the trial courts failure to obtain a supplemental probation report before the resentence. Again, both parties concede that such a failure occurred; and a review of a defendants "post-original sentencing behavior contained in a supplemental probation or corrections report" is required when a matter is remanded to the trial court for resentencing. (See People v. Jackson (1987) 189 Cal.App.3d 113, 118-119; People v. Bullock (1994) 26 Cal.App.4th 985, 989.) However, in order for a defendant to prevail on such a claim of error, he must show that there was "a reasonable probability of a result more favorable to defendant if not for the error." (People v. Dobbins (2005) 127 Cal.App.4th 176, 182.)
This is true except in cases where a defendant is ineligible for probation. As the Attorney General concedes, Carmi was, in fact, eligible for probation at the time of the resentencing hearing.
During the original sentencing hearing, the trial court reviewed Carmis probation report, which revealed that he had only a minor criminal record, and that he was, in essence, a first-time offender. Despite these facts, the trial court determined that the upper term was appropriate, due to the serious and violent nature of Carmis behavior and the multiplicity of charges. The trial court expressly determined that the crime involved a threat of great bodily harm disclosing a high degree of cruelty, viciousness, or callousness. The court considered Carmis lack of criminal record, yet still derided his conduct, stating, "every shot [he] fired that night that did not kill, maim or injure someone was a shot that could have killed, maimed, or injured someone," and expressed its view that Carmi himself was "fortunate . . . not to have been shot" by any of the "number of police officers [he placed] in serious jeopardy." As the Attorney General notes, the court focused on the heinousness of the offense itself. Thus, it is unlikely that a supplemental probation report illustrating Carmis appropriate behavior since the original sentencing would have influenced the court at all, much less to impose a more favorable sentence.
DISPOSITION
Given the foregoing analysis, we affirm the resentencing.
We Concur:
RYLAARSDAM, J.
MOORE, J.