Opinion
H051143 H051743
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY RALPH CARRILLO, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS082394A
We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
LIE, Acting P. J.
Sentenced in 2011 to a 35-year prison term that included two one-year enhancements imposed under Penal Code section 667.5, subdivision (b) (section 667.5(b)), Timothy Ralph Carrillo appeals from a resentencing order entered in absentia striking only the two section 667.5(b) enhancements since invalidated by section 1172.75. Carrillo argues that the order must be vacated and the matter remanded because he is entitled to a full resentencing under section 1172.75 at which he is entitled to be present. The Attorney General concedes the error. We accept the Attorney General's concession and remand.
Undesignated statutory references are to the Penal Code.
Section 1172.75 was initially numbered section 1171.1, but later renumbered without substantive change. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.) For clarity, we cite section 1172.75 to refer to the current version of the resentencing statute.
A. Appeal No. H051143
Carrillo was not personally present at his February 2023 resentencing, and the trial court accepted counsel's stipulation in his absence to striking the two section 667.5(b) enhancements and resulting sentence of 33 years. The court did not address any other components of Carrillo's original sentence-designation of count 8 as the principal term and selection of the upper term; the application of section 654 as to counts 7 and 9; imposition of consecutive terms for counts 1, 3, and 5; or the imposition of a five-year enhancement under section 667, subdivision (a).
After Carrillo belatedly appealed from the resentencing, we issued an order to show cause why the appeal should not be dismissed. Carrillo's declaration attached to his application for relief from default stated that he was not notified of his resentencing hearing and that he was denied the right to be present, having not consented to be resentenced in absentia. Carrillo added that because he did not learn of the resentencing order until June 2023, he did not have an opportunity to file a timely notice of appeal. We granted Carrillo's application for relief from default and permitted the appeal to proceed.
B. Appeal No. H051743
After Carrillo's February 2023 resentencing, the Department of Corrections and Rehabilitation (CDCR) sent a letter to the trial court seeking clarification on whether one of Carrillo's first degree burglary convictions met the elements of a violent felony, which would limit Carrillo's accumulation of work time credit while in custody. On stipulation of the parties, the court informed the CDCR that the offense did not constitute a violent felony. Although Carrillo timely appealed from this order, his contentions on appeal pertain only to the resentencing order.
C. Carrillo is Entitled to Full Resentencing
Carrillo argues that the trial court erred in simply striking the two section 667.5(b) enhancements from his sentence without holding a full resentencing at which Carrillo would have a right to be present. The Attorney General appropriately concedes reversible error.
The trial court understood that section 1172.75, subdivision (a) renders "legally invalid" Carrillo's enhancements under former section 667.5(b). What the court overlooked was section 1172.75's requirement that the court in "recall[ing] the sentence and resentenc[ing] the defendant" (§ 1172.75, subd. (c)) must "apply any other changes in law that reduce sentences or provides for judicial discretion so as to eliminate the disparity of sentences and to promote uniformity of sentencing" (§ 1172.75, subd. (d)(2); see also People v. Monroe (2022) 85 Cal.App.5th 393, 402 [noting that § 1172.75's plain language "requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements"]). Given the intervening changes in sentencing law that had the potential to implicate several aspects of the 33 years the court reimposed without comment or explanation, the oversight cannot be described as harmless. (See, e.g., Stats. 2021, ch. 441, § 1, p. 6434 [amending § 654 to eliminate the requirement that an act punishable under different laws be punished under the law providing the longest possible term of imprisonment]; Stats. 2021, ch. 721, § 1, p. 8988 [adding § 1385, subd. (c) to enumerate mitigating circumstances entitled to "great weight" absent danger to public safety]; Stats. 2018, ch. 1013, § 2, p. 6672 [repealing prohibition on dismissal of enhancements under § 667, subd. (a)].)
Carrillo also has a constitutional and statutory right to be present at his resentencing, a critical stage of the proceedings. (See People v. Whitmore (2022) 80 Cal.App.5th 116, 124; People v. Blacksher (2011) 52 Cal.4th 769, 798-799; § 977, subd. (b)(1).) Given Carrillo's undisputed entitlement to full resentencing, there can be no question that the hearing on section 1172.75 relief is a"' "stage that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." '" (Blacksher, at p. 799.) And although a defendant may waive his right to be present, the waiver must be voluntary, knowing, and intelligent. (People v. Nieves (2021) 11 Cal.5th 404, 508.) By statute, the court may not proceed in the defendant's absence unless "counsel has stated on the record that the defendant has been advised of the right to be physically or remotely present . . . [and] has waived that right." (§ 977, subd. (b)(2)(B).)
Nothing in the record suggests that counsel had duly advised the absent Carrillo of his right to be present or that Carrillo had waived that right. Even if the trial court had understood its obligation under section 1172.75, subdivision (d)(2) to consider intervening ameliorative changes in sentencing law, Carrillo's absence and the omission of a valid waiver would independently require reversal. Counsel's silence on the mandatory advisement under section 977, subdivision (b)(2)(B) leads us to infer that Carrillo lacked the ability to confer with counsel about not only his right to be present but also the potential postconviction factors that section 1172.75, subdivision (d)(3) authorizes the court to consider.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for full resentencing in accordance with Penal Code sections 1172.75 and 977, subdivision (b).
WE CONCUR: WILSON, J. BROMBERG, J.