Opinion
B306796
10-01-2021
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALEJANDRO GALVEZ, Defendant and Appellant.
Adrian K. Panton, 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 Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. KA070312, Robert M. Martinez, Judge. Reversed and remanded.
Adrian K. Panton, 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 Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
On a remand following reversal by this court, the trial court conducted a hearing-at which defendant David A. Galvez was not present-and declined to exercise its discretion to strike a sentencing enhancement for defendant's use of a firearm resulting in great bodily injury or death. (Pen. Code, § 12022.53, subd. (d).) Defendant contends that the court erred in finding that he had waived his right to be present and in preventing his counsel from making further statements during the hearing. We reverse and remand for a new hearing.
Further statutory references are to the Penal Code.
II. BACKGROUND
A. Conviction and Initial Sentencing
In 2006, a jury convicted defendant of two counts of murder in the first degree (§ 187, subd. (a).) The trial court sentenced defendant to two terms of life without the possibility of parole, plus an additional 25-years-to-life firearm enhancement (§ 12022.53, subd. (d)) on each count. (People v. Galvez (Aug. 22, 2007, B194868) [nonpub. opn.].)
B. 2015 Resentencing Hearing
In 2015, defendant petitioned for a writ of habeas corpus, arguing that he was entitled to a resentencing hearing pursuant to Miller v. Alabama (2012) 567 U.S. 460. The trial court granted the petition and conducted a hearing at which it imposed the same sentence. (People v. Galvez (Feb. 22, 2018, B279420) [nonpub. opn.].) Defendant appealed and a prior panel of this court dismissed the appeal as moot because section 3051, subdivision (b)(4) already provided defendant with the 25-years-to-life sentences that he sought. (People v. Galvez, supra, B279420.) The prior panel also remanded the matter for the limited purpose of allowing the trial court to consider whether to exercise its discretion under section 12022.53, subdivision (h) to strike or dismiss the firearm enhancements but denied defendant's request for a record development hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin). (People v. Galvez, supra, B279420.)
C. 2018 Proceedings Following Remand
1. July 31, 2018
Following remand, and notwithstanding the trial court's denial of defendant's request for a Franklin hearing, defendant filed a brief in the court entitled “‘Defense Counsel's Brief and Exhibits Relevant to Sentenced Defendant and Youth Offender Parole Hearing (... [§§] 1203.1, 3051, 4801, 12022.53, [subd[.]] (h) and [ ]Franklin[, supra, ] 63 Cal.4th 261.)'” (People v. Galvez, supra, B279420.)
On July 31, 2018, defendant and counsel appeared before the trial court. Defense counsel stated: “What I've asked [defendant] to do is waive his appearance for the rest of the time of the proceedings, including the hearing, which he absolutely wants to do, and then our office can figure out where this case is going and whether or not those gun enhancements make a difference. [¶] They may or may not, but I'm not ready to concede that without having somebody look into it. So if he could just waive his appearance for all hearings from today on out, including the actual hearing, we'd ask the court to do that, and then put it over a day in the future.”
We grant the Attorney General's request to take judicial notice of excerpts from the reporter's transcript in People v. Galvez (Nov. 25, 2019, B294969) [nonpub. opn.].
The following exchange then occurred between the trial court, defendant, and defense counsel:
“The Court: [Defendant], just so you know-and that's fine. Most of the folks I've dealt with who come out from state basically say, ‘Would you just leave me alone. Work out what you have to work out and keep me informed.' [¶] Is that what you're telling me?
“[D]efendant: Yeah.
“The Court: I need to tell you that if it comes out-if it turns out we are going to need you for something, I will have to bring you back, but if you want to just stay up in the joint, I'm okay with that. [¶] Do you follow me?
“[D]efendant: That's what I want. I don't want to come back down.
“The Court: Sometimes it's required, and I can't help it. I had to get your permission today to do this, so we had to bring you down for this. Okay? [¶] You understand what's happened is that the appellate court has ordered this court to hold what's called a Franklin hearing, and at that hearing, your attorney is going to put together materials, documents to present to a parole board when you are eligible for parole? Do you understand that?
“[D]efendant: Yes.
“The Court: All right. It's gonna take her some time to do it, and depending on what materials they're going to put together, including any possible psychological analysis, social history- [¶] I don't know how you're going to do it if he's up in the joint. You can sort that out later. [¶] -She needs to get it together, and her office still hasn't picked the appropriate person to handle this case for you. [¶] Do you understand that?
“[D]efendant: Can I say something?
“The Court: Sure.
“[D]efendant: Can I just drop it, like? I don't want
“[Defense counsel]: Just waive your presence, and we'll do it for you.
“The Court: This is all new to a lot of us, these Franklin hearings. This is something the appellate courts created out of, basically, thin air, and you may be able to sign a waiver saying, ‘I know my attorney wants me to meet with a psychologist or psychiatrist. I don't want to, and I'm waiving my right to meet that person,' so you don't have to leave. All right? She can't make that decision. It has to be the lawyer who will actually represent you. [¶] Do you follow me?
“[D]efendant: Yeah.
“The Court: You've made your position clear, and we will share that with the lawyer. [¶] You will certainly do that, correct?
“[Defense counsel]: Absolutely.
“The Court: To the extent that you have a right to be present at these hearings, do you waive and give up that right?
“[D]efendant: Yes.
“The Court: Including the actual final hearing in which the packet of materials is put together and submitted, basically, to the Board of Prison to be presented to the parole board?
“[D]efendant: Yes.
“The Court: All right. Do you have any other questions or anything you want me to clarify?
“[D]efendant: I don't have no more court after this?
“The Court: I'm shipping you back unless you've got something else somewhere else. You're good to go. [¶] And that's your request?
“[D]efendant: Yes.
“The Court: Counsel, join?
“[Defense counsel]: Yes.
“The Court: Any objection by the People?
“[The People]: No objection.
“The Court: Very good. And then-he's waiving all of his appearances.”
2. August 27, 2018
On August 27, 2018, defense counsel appeared at a hearing before the trial court. Defendant was not present. Counsel and the court had the following exchange:
A different defense counsel appeared than had appeared at the July 13, 2018, hearing; and a different trial court judge than the one who presided over the earlier hearing conducted further proceedings.
“[Defense counsel]: Your Honor, previously, I've read the prior hearings, [defendant] had waived his appearance. However, ... the waiver there was in the context of a Franklin hearing.
“The Court: Yes.
“[Defense counsel]: And I would propose one of two things. [Defendant] did make it very clear he didn't want to come down. I can write him a letter explaining that this is what we're really here doing and address the issue of whether or not the Court will strike the [section 12022].53 [subdivision (d)] gun enhancement and see if he wants to come down. But at least he will have clarification and understanding this is what we're doing at this particular juncture. [¶] I don't want him unnecessarily disrupted if he doesn't want to come down. But, at the same time, I do not feel comfortable because he was not given the exact nature of the hearing. [¶]... [¶]
“The Court: What I'm going to do is I'm going to prepare a removal order for whatever date we decide, with the understanding that if he wishes to waive his appearance, he did write you and indicate that; in which case it'll be vacated.
“[Defense counsel]: Okay. I will send him a letter to that effect.”
3. October 12, 2018
On October 12, 2018, the trial court and defense counsel further discussed defendant's waiver of appearance.
“The Court: If I recall correctly, you waived your client's appearance?
“[Defense counsel]: Yes, Your Honor. And so the Court knows, I have been in direct contact with [defendant], I did clarify the miscommunication in terms of this is for the exercise of the Court's discretion regarding the striking of the gun allegation. I made that very clear to [defendant]. I have spoken to him. His counsel facilitated that I could speak to him, and I have in writing his authorization and permission that he does not wish to be here, that he waives his appearance, that he gives me authority to act on his behalf.”
4. December 7, 2018
At the section 12022.53, subdivision (h) hearing on December 7, 2018, the trial court stated: “[Defendant] is not present. He has waived his appearance.”
Defense counsel responded: “That is correct, Your Honor. [¶] And, for the record, I have received written communication to that fact, affirming that he did not wish to be present for this proceeding.”
Following argument, the trial court declined to strike the sentencing enhancements. Defendant appealed; and on November 25, 2019, this court reversed and remanded for a further hearing, finding the record ambiguous as to whether the trial court improperly relied upon matters outside the record or adequately considered defendant's youth offender status in ruling on the request to strike. (People v. Galvez, supra, B294969.)
D. 2020 Proceedings Following Second Remand
On July 17, 2020, the trial court conducted a hearing at which defense counsel, but not defendant, was present. Defense counsel stated: “[F]or the record, I have received a letter from [defendant], and the pertinent part here is that he did not wish to be brought out for these proceedings and that he gave me authorization to handle this matter. So I have his desire, in writing, not to be brought out of prison to be present for these proceedings.”
The trial court asked whether counsel would provide a copy of the letter, to which counsel responded: “I can't, Your Honor. It's a privileged communication. It's a letter from my client to me. But I am making the representation to the court. I have not only received a letter, but I have spoken to my client. And with regard to only this issue that I'm making known, because my client has given me the permission to do so, that he does not wish to be present.”
The trial court accepted defense counsel's representation and ordered the letter preserved for any future proceeding.
During the hearing, the trial court noted it had “reviewed and did review the adolescent development documentation relating to the development of adolescents and the impact on the juvenile and adult criminal justice system.” Defense counsel then stated that there were some facts “filed back on November 19th of 2018 which I know the court has in the file, the defense counsel's brief and exhibits relevant to the sentencing.” The court responded that it intended to discuss those facts.
Defense counsel further argued in mitigation: “[Defendant's] background, his lack of any guidance, and basically being kidnapped from Tijuana and dumped into another social milieu that he didn't choose to come to and the effects [its] had on him at that time and how the-shall we say less-than-good people became a surrogate or an influence to him, and that's the kinds of impulsivity and environmental affect that I think the social scientists are talking about when they're saying... 16- year-olds may be able, 17-year-olds may be able to understand these things but how they internalize them and accurately reflect the information being processed is a whole different pattern.”
Having considered defendant's adolescent development and how it related to peer pressure and impulsivity, the trial court found that the nature of the crimes committed here did not support striking the firearm enhancements. The court noted defendant chose to become a member of a criminal street gang and remained in the gang even after he was shot numerous times and fellow gang members were shot and killed. The court found defendant did not hesitate when his co-participant directed him to shoot and defendant was the only person armed during the shootings. The court noted the first shooting was in purported retaliation for an earlier shooting, but defendant had no knowledge that the first murder victim was responsible for that earlier shooting. As for the second shooting, the court observed that defendant instructed the driver to stop the car by the second murder victim and there was no indication that the second victim was a member of a rival gang.
The trial court also referenced defendant's behavior while incarcerated. Defendant assaulted another inmate in 2009 resulting in multiple stab wounds. Defendant was also found to have used morphine while in prison, committed various prison violations, and continued to communicate with fellow gang members through mail correspondence.
The trial court concluded: “The defendant's actions were not those of an irresponsible, naïve, or impulsive child nor were they the product of peer pressure or coercion by others or a surprise. He was the primary mover of the killings, and his acts were very adult and very violent, who has shown no regard for the impact of his actions on the victim in this case. He acted with an appreciation of the dangerousness and an understanding of the potential consequences of his violent conduct. His actions were not those of an immature or impulsive child. To the contrary, he was the primary mover in the killing of these two victims.” The trial court found the interests of justice would not be promoted by striking either of the firearm enhancements.
Defense counsel responded: “The court stated some facts there. I think-my own opinion, based on what I provided in 2018, I do not think that this record is complete or accurate as far as my client. [¶] I understand the court's ruling. I'm asking to be permitted to put forward facts I think the court, in its view, either misinterprets or perhaps does not have a complete picture in its point of view. So I'm simply asking to put that forward on the record. I understand what the court's saying, but I think the court has missed some points....”
The trial court denied the request, stating that defendant had the remedy of an appeal. This appeal followed.
III. DISCUSSION
A. Waiver of Defendant's Appearance at Hearing
Defendant contends that he had a constitutional right to be present at the hearing on remand, which defendant describes as a resentencing hearing. The Attorney General does not dispute defendant's characterization of the hearing as a resentencing but contends that the trial court, having found a valid waiver, did not err in conducting the hearing outside of defendant's presence.
1. Standard of Review
Whether 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.)
2. Defendant's Right to be Present at Hearing
Both the Sixth Amendment of the United States Constitution and article I, 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 (Rocha).) A hearing on a remand at which a court considers whether to strike a sentencing enhancement is distinguishable from a full resentencing hearing. (See People v. Rodriguez (1998) 17 Cal.4th 253, 258.) For purposes of this appeal, we need not decide whether such a hearing is nonetheless a “critical stage[ ] of a criminal prosecution” such that a defendant has a constitutional right to be present. “‘Our jurisprudence directs that we avoid resolving constitutional questions if the issue may be resolved on narrower grounds.' (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102....)” (Rocha, supra, 32 Cal.App.5th at p. 357.) We thus agree with the reasoning of the court in Rocha that section 1260 requires the presence of a defendant, defense counsel, and the People at a hearing where a court decides how to exercise its new discretion under section 12022.53, subdivision (h). (Rocha, supra, 32 Cal.App.5th at pp. 359-360.)
Section 1260 provides: “The court... may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
3. Waiver of Appearance
We next consider the Attorney General's argument that the trial court did not err in conducting the hearing outside defendant's presence because it properly concluded that defendant had waived his right to be present. Section 977 requires that a defendant charged with a felony “shall be personally present... at the time of the imposition of sentence[, ]” in addition to “all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present....” (§ 977, subd. (b)(1).)
The record does not support the Attorney General's argument. First, there is no indication that defendant ever executed, in open court, a written waiver of his right to be personally present. Further, the trial court's questioning of defendant at the July 31, 2018, hearing was directed at whether defendant wished to be present at a Franklin hearing. Indeed, at the August 27, 2018, hearing, both the court and defense counsel agreed that defendant had waived his appearance for any Franklin hearings, but not for a hearing pursuant to section 12022.53, subdivision (h).
The Attorney General's citation to People v. Fedalizo (2016) 246 Cal.App.4th 98 (Fedalizo) is inapposite as the defendant in that case was resentenced on a misdemeanor. Pursuant to section 977, subdivision (a), a misdemeanor defendant may appear through counsel and a court may “‘rely upon the representations of defense counsel that the accused was knowingly absent from the proceedings.'” (Fedalizo, supra, 246 Cal.App.4th at p. 110.) Here, defendant was convicted of a felony. Thus, section 977, subdivision (b)(1), not subdivision (a), applies. On this record, we conclude there was no substantial evidence to find that defendant waived his right to be present at the hearing on remand.
B. The Error Was Prejudicial
We next address whether, even assuming the harmless error doctrine applies, defendant was prejudiced by not being present at the hearing. We note that the trial court, in declining to exercise its discretion, cited, among other things, defendant's postconviction prison conduct. Defendant asserts that had he been present, he could have explained the mitigating circumstances of his prison conduct. Further, there is some suggestion, as referenced by defense counsel's statements at the hearing, that the court's recitation of facts was either incomplete or the product of incorrect inferences. On this record, we conclude that “it is reasonably probable that input from defendant... would lead to a more favorable exercise of the court's discretion” (Rocha, supra, 32 Cal.App.5th at p. 360) and defendant has demonstrated prejudice even under the Watson standard, which applies to state law errors. Therefore, “[a] remand is necessary to ensure proceedings that are just under the circumstances, namely, a hearing at which both the People and defendant may be present and advocate for their positions.” (Ibid.) Because we remand for a further hearing, we need not address defendant's alternative argument that the court erred by not permitting defense counsel to make additional statements at the earlier hearing.
People v. Watson (1956) 46 Cal.2d 818, 836.
IV. DISPOSITION
The order is reversed and remanded for the trial court to conduct a section 12022.53, subdivision (h) hearing, at which defendant has the right to be present unless defendant waives his appearance in compliance with section 977, subdivision (b)(1).
We concur: RUBIN, P. J., MOOR, J.