Opinion
C083432
03-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ISAAC DABOUR DAWSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F04520)
In 2012, a jury convicted defendant Isaac Dabour Dawson of second degree robbery, assault with a firearm, being a felon in possession of a firearm, attempted second degree robbery, and possession of ammunition by a person prohibited from possessing a firearm. The jury also found true enhancement allegations for firearm use and personal infliction of great bodily injury. The trial court sentenced defendant to a determinate prison term of 19 years 8 months and an indeterminate prison term of 50 years to life.
Defendant subsequently moved for Proposition 47 resentencing pursuant to Penal Code section 1170.18, subdivision (a). Although the trial court did not rule on the motion, it determined on its own motion that defendant's sentence was unauthorized and imposed and stayed additional firearm enhancement sentences.
Undesignated statutory references are to the Penal Code. --------
Defendant now contends he was denied due process and the right to counsel when the trial court imposed additional enhancement sentences on its own motion without notice or hearing prior to issuance of the order. We will reverse the trial court's August 22, 2016 postjudgment order and remand the matter to the trial court so that it can conduct a noticed sentencing hearing.
BACKGROUND
A jury convicted defendant in January 2012 of second degree robbery (§ 211 -- counts 1 & 3), assault with a firearm (§ 245, subd. (a)(2) -- counts 2 & 6), being a felon in possession of a firearm (§ 12021, subd. (a)(1) -- counts 4 & 7), attempted second degree robbery (§§ 664, 211 -- counts 5 & 8), and possession of ammunition by a person prohibited from possessing a firearm (§ 12316, subd. (b)(1) -- count 9). The jury also found true enhancement allegations for firearm use (§§ 12022.53, subds. (b)-(d), 12022.5, subds. (a) & (d)) and personal infliction of great bodily injury (12022.7, subd. (a)). The trial court sentenced defendant as follows: five years on count 1 plus 25 years to life for a firearm use enhancement (§ 12022.53, subd. (d)); three years on counts 2 and 6, stayed pursuant to section 654; one year on count 3 plus 25 years to life for a firearm use enhancement (§ 12022.53, subd. (d)); eight months on count 4; eight months on count 5 plus six years eight months for a firearm use enhancement (§ 12022.53, subd. (c)); eight months on count 7; eight months on count 8 plus three years eight months for a firearm use enhancement (§ 12022.53, subd. (b)); and eight months on count 9.
Representing himself, defendant subsequently filed a petition for resentencing in 2016 pursuant to section 1170.18, subdivision (a). There is no indication in the appellate record that the trial court ruled on the petition.
However, on August 22, 2016, the trial court determined on its own motion that defendant's sentence was unauthorized and required modification. The trial court issued a tentative ruling imposing and staying additional firearm enhancement sentences as follows: on count 1, 10 years plus 20 years; on count 3, three years four months plus six years eight months; and on count 5, three years four months. (§ 12022.53, subds. (b)-(c), (f).) The trial court's tentative ruling stated: "The above terms are imposed and stayed pursuant to [section 12022.53, subdivision (f)] and [People v. Gonzalez (2008) 43 Cal.4th 1118, 1130]. All other terms of the previously imposed sentence remain the same. This tentative ruling shall become the ruling of the Court unless either party files a written request for a re-sentencing hearing in Department 27 on or before September 15, 2016. If no such request is received, the abstract of judgment will be amended accordingly." There is no indication in the appellate record that the trial court served notice on defendant prior to the issuance of the tentative ruling, nor any indication that any party accepted the trial court's invitation by requesting a hearing on or before September 15, 2016. Rather, defendant filed a notice of appeal on September 28, 2016.
Nevertheless, on November 9, 2016, the trial court set a resentencing hearing for December 9, 2016. The appellate record does not identify the impetus for the hearing, but defendant was present at the hearing and he was represented by counsel. During the hearing, the trial court determined it lacked jurisdiction to consider resentencing because defendant had appealed the August 22, 2016 order. The trial court continued the matter.
DISCUSSION
I
As a threshold matter, the People argue defendant's appeal should be dismissed because it is not an appeal from a final judgment. According to the People, the trial court's August 22, 2016 ruling was tentative and provided the parties with an opportunity for a subsequent hearing where defendant could be represented by counsel. The People made this same argument in a prior motion to dismiss this appeal, which this court denied.
As we have explained, the trial court's August 22, 2016 order said the tentative ruling would become the ruling of the Court unless either party filed a written request for hearing by September 15, 2016. We have not been presented with any indication that either party requested a hearing by the deadline. Accordingly, the tentative ruling became final. Because the trial court's ruling increased defendant's sentence, it affected his substantial rights and is appealable. (§ 1237, subd. (b) [an appeal may be taken from "any order made after judgment, affecting the substantial rights of the party"]; see also People v. Borja (2002) 95 Cal.App.4th 481, 484.)
II
Defendant contends he was denied due process and the right to counsel when the trial court imposed additional enhancement sentences on its own motion without providing defendant notice and an opportunity to be heard prior to issuance of the order.
A criminal defendant has a fundamental right to notice and an opportunity to be heard with regard to matters affecting his or her rights. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7; Fuentes v. Shevin (1972) 407 U.S. 67, 80 [32 L.Ed.2d 556, 569]; In re Roger S. (1977) 19 Cal.3d 921, 937-938.) In addition, a defendant has a fundamental right to counsel and to be present at all critical stages of a criminal proceeding, such as sentencing. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Marshall v. Rodgers (2013) 569 U.S. 58, 62 [185 L.Ed.2d 540, 544]; People v. Doolin (2009) 45 Cal.4th 390, 417, 453.) The failure to provide notice and an opportunity to be heard violates due process. (Armstrong v. Manzo (1965) 380 U.S. 545, 550 [14 L.Ed.2d 62, 65-66].)
Because defendant was not given notice or an opportunity to be heard prior to issuance of the order increasing his sentence, we will reverse the order and remand the matter to allow the trial court to hold a noticed sentencing hearing.
DISPOSITION
The postjudgment order dated August 22, 2016 is reversed and the matter is remanded with directions to the trial court to conduct a noticed sentencing hearing, which shall include consideration of defendant's section 1170.18 petition. To the extent the sentencing hearing results in a change in defendant's sentence, the trial court shall prepare an amended abstract of judgment reflecting the change and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
BUTZ, J.