Opinion
B328017 B329986
09-06-2024
THE PEOPLE, Plaintiff and Respondent, v. JAQUES OMAR FEARENCE, Defendant and Appellant.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angelese County No. NA060375, Tomson T. Ong, Judge. Reversed and remanded.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendant Jaques Omar Fearence appeals from a judgment following a resentencing hearing, on the grounds that he was denied his statutory and due process right to be present at the hearing. Defendant also contends that the trial court failed to calculate his custody credits at the hearing. We reverse and remand for the trial court to hold a new resentencing hearing.
II. BACKGROUND
A. Conviction and Initial Sentence
On April 22, 2004, the Los Angeles County District Attorney filed an information charging defendant with murder (Pen. Code, § 187, subd. (a), count 1) and possession of cocaine for sale (Health &Saf. Code, § 11351.5, count 2). For the murder count, the District Attorney alleged that defendant personally and intentionally discharged a firearm which proximately caused great bodily injury and death (§ 12022.53, subd. (d)). On July 12, 2004, a jury convicted defendant of both counts. The jury also found that the murder was in the first degree and that the firearm allegation was true.
Further statutory references are to the Penal Code unless otherwise indicated.
On September 16, 2004, the trial court sentenced defendant to 51 years 4 months to life in state prison, consisting of 25 years to life for first degree murder; 25 years to life for the firearm enhancement, to run consecutively; and 16 months for possession of cocaine for sale (one-third the middle term), to run consecutively. A prior panel of this court affirmed the conviction. (People v. Fearance [sic] (Oct. 26, 2005, B178108) [nonpub. opn.].)
B. Correction of Sentence
On May 15, 2018, the Department of Corrections and Rehabilitation (Department) sent a letter to the trial court, advising the court that the abstract of judgment and minute order "may be in error" because (1) pursuant to California Rules of Court, rule 4.451(a), the determinate term imposed on the possession of cocaine count was required to be computed without reference to the indeterminate term imposed on count 1; and (2) the judgment indicated that the firearm enhancement had been imposed pursuant to section "1202.53(B)" when the reporter's transcript of the sentencing hearing reflected that the allegation had been imposed pursuant to section 12022.53, subdivision (d).
Further rule references are to the California Rules of Court.
On July 9, 2020, the trial court ordered that "[t]he abstract of judgment shall be corrected to reflect the enhancement as [section] 12022.53[, subdivision (d)] instead of [section] 12022.53[, subdivision (b)] [sic]."
On August 10, 2022, defendant filed a motion to vacate and correct his sentence pursuant to section 1170.1, subdivision (a) and rule 4.451(a), and to amend the abstract of judgment to reflect that the firearm enhancement was imposed pursuant to section 12022.53, subdivision (d).
On December 6, 2022, the trial court conducted a hearing on defendant's motion. Neither defendant nor defense counsel was present for the hearing. The court ordered that "[i]nsofar as the imposition of the determinate term on count 2 [the possession of cocaine count], . . . [t]he 16 month sentence is vacated, and the low term of 3 years is imposed consecutive to count 1 as required by law." The court also noted that it had already corrected the abstract of judgment to reference the correct Penal Code section for the imposition of the gun enhancement. The abstract of judgment was amended to reflect the changes. On January 6, 2023, defendant appealed from the December 6, 2022, resentencing.
C. Writ Petition and Resentencing Hearing
On January 10, 2023, defendant filed a petition for writ of mandate, asserting that he was denied his right to be present at the December 6, 2022, resentencing hearing. On February 17, 2023, this court construed the petition as one for a writ of habeas corpus and issued an order to show cause why the relief prayed for in defendant's petition should not be granted. (In re Fearence (Feb. 17, 2023, B325458) [nonpub. order].)
On March 3, 2023, the trial court appointed counsel and issued a removal order requiring that the Department transport defendant to the resentencing hearing, which it scheduled for April 19, 2023.
On April 19, 2023, the trial court called the matter for a resentencing hearing. Defendant was not present for the hearing, and the court observed, "The notation we have from the prison is that [defendant] refused. And Sergeant Easterly . . . from the [Department] was present for that refusal to come to court." The court continued, "Therefore, [defendant] has basically abrogated or forfeited his right to be present, although he is the one that demanded to be here." Defense counsel then agreed to waive arraignment for judgment and affirmed that there was no legal cause not to sentence defendant. The trial court resentenced defendant to 50 years to life, consisting of 25 years to life for murder, and 25 years to life for the firearm allegation pursuant to section 12022.53, subdivision (d), to run consecutively. Finally, for the possession of cocaine for sale count, the court imposed and then stayed the low term of 2 years. Defendant timely appealed.
III. DISCUSSION
Defendant argues that the trial court denied his statutory and constitutional right to be present at the resentencing hearing. We agree.
A. Legal Principles and Standard of Review
Both the Sixth Amendment of the United States Constitution and article 1, section 15 of the California Constitution guarantee a criminal defendant the right to the assistance of counsel "at all critical stages of a criminal prosecution, including sentencing." (People v. Doolin (2009) 45 Cal.4th 390, 417, 453.) "Both constitutions similarly afford a defendant the right to be present at all critical stages of a criminal prosecution." (People v. Rocha (2019) 32 Cal.App.5th 352, 357.) Resentencing is considered a critical stage of the proceedings for purposes of a defendant's right to be present. (People v. Cutting (2019) 42 Cal.App.5th 344, 348 ["Sentencing is considered to be one such critical stage [citations], and, because the trial court has discretion to reconsider the entire sentence on remand, resentencing is another critical stage"].)
A defendant may waive his right to be present at the resentencing hearing, but only if such waiver is voluntary, knowing, and intelligent. (People v. Nieves (2021) 11 Cal.5th 404, 508.) Moreover, defense counsel may waive the defendant's presence, but only if there is evidence that defendant consented to the waiver. (People v. Davis (2005) 36 Cal.4th 510, 532.)
Section 977, subdivision (b)(2) sets forth the circumstances under which a defendant may waive his right to be present at a resentencing hearing. It provides that a defendant can waive the right to be present by written waiver filed with the court, or as follows: "(A) A defendant's personal waiver of the right to be physically . . . present shall be on the record and state that the defendant has been advised of the right to be physically . . . present for the hearing at issue and agrees that notice to the attorney that the defendant's physical . . . presence in court at a future date and time is required is notice to the defendant of that requirement. [¶] (B) A waiver of the defendant's physical . . . 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 . . . present for the hearing at issue, has waived that right, and agrees that notice to the attorney that the defendant's physical . . . presence in court at a future date and time is required is notice to the defendant of that requirement." (§ 977, subd. (b)(2).)
Section 977, subdivision (d)(1) provides an alternative means for a trial court to proceed at a hearing with defendant appearing by counsel only, with or without a written waiver, "if the court finds, by clear and convincing evidence, all of the following to be true:
"(A) The defendant is in custody and is refusing, without good cause, to appear in court on that day for that trial, hearing, or other proceeding.
"(B) The defendant has been informed of their right and obligation to be personally present in court.
"(C) The defendant has been informed that the trial, hearing, or other proceeding will proceed without the defendant being present.
"(D) The defendant has been informed that they have the right to remain silent during the trial, hearing, or other proceeding.
"(E) The defendant has been informed that their absence without good cause will constitute a voluntary waiver of any constitutional or statutory right to confront any witnesses against them or to testify on their own behalf.
"(F) The defendant has been informed whether or not defense counsel will be present."
Whether a defendant has a right to be present at a hearing is a question of law we review de novo. (People v. Santos (2007) 147 Cal.App.4th 965, 972.) We review the trial court's factual findings for substantial evidence. (People v. Reneaux (2020) 50 Cal.App.5th 852, 863.)
B. Analysis
Here, the trial court's finding that defendant "forfeited," or waived his right to be present at the resentencing hearing is not supported by substantial evidence. As our Supreme Court has observed, in order to find that a defendant has knowingly and voluntarily waived his right to physically appear at the resentencing hearing, "[a]t a minimum, there must be some evidence that the defendant understood the right he was waiving and the consequences of doing so." (People v. Davis, supra, 36 Cal.4th at p. 532.) Here, the trial court cited defendant's refusal to be transported to court, but there was no evidence that defendant understood that he was waiving his right to be present at the resentencing hearing or that he understood the consequences of his waiver. (Cf. People v. Howze (2001) 85 Cal.App.4th 1380, 1396 [affirming waiver of defendant's right to be present at time of commencement of trial because, among other things, defendant "was advised that a failure to leave his cell would be considered a waiver of his right to be present" and chose not to be transported].) Accordingly, the trial court erred by holding the resentencing hearing without defendant being present.
Further, we conclude that the trial court's error in conducting the resentencing hearing, without defendant's personal presence or waiver, was not harmless beyond a reasonable doubt. (People v. Davis, supra, 36 Cal.4th at p. 532 ["error pertaining to a defendant's presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23"].) Had defendant been present, he could have expressed remorse or made a plea for leniency. (People v. Cutting, supra, 42 Cal.App.5th at p. 350.)
Because we are remanding for a new resentencing hearing, we need not consider the merits of defendant's contention that the court erred by failing to calculate his actual custody credits.
IV. DISPOSITION
The judgment is reversed and remanded with directions for the trial court to hold a new resentencing hearing.
I concur: MOOR, J.
We observe, however, that the Attorney General concedes the court erred. (See People v. Sek (2022) 74 Cal.App.5th 657, 673.)
BAKER, Acting P. J., Dissenting
The opinion for the court correctly states defendant and appellant Jaques Fearence (defendant) can be found to have waived his right to be present at the resentencing only if there is evidence that the waiver was knowing, voluntary, and intelligent. (People v. Davis (2005) 36 Cal.4th 510, 531-532.) All three are true. The trial court found defendant voluntarily refused to come to court for the resentencing and the record provides ample support for that finding. There can also be no doubt that defendant's refusal to come to court for the resentencing was knowing and intelligent: he was the one who personally filed in this court a petition-with citations to precedent-claiming his right to be present at the initial resentencing was infringed, and he was served with this court's order to show cause (again with citation to authority) granting relief. To be sure, there was no written waiver of defendant's right to be present in this case, but none was required given the procedural history of the case and his attorney's representation that there was "no legal cause" why the court should not proceed with the resentencing after defendant refused to come to court. (Pen. Code, § 977, subds. (b)(2)(B), (d)(1).) Remanding with directions to hold yet another resentencing in this case is pointless.