Opinion
B298024
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY EDWARD HART, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. MA066743 APPEAL from an order of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Remanded with instructions. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
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Anthony Edward Hart appeals from the trial court's order on remand from this court declining to strike any of his three five-year prior serious felony enhancements under Senate Bill No. 1393 (SB 1393). Hart contends he had a right to be personally present at the hearing. We agree. Accordingly, we again remand the case for the court to conduct a hearing on Hart's SB 1393 motion, at which Hart is present with counsel.
FACTS AND PROCEDURAL BACKGROUND
In 2016 a jury convicted Hart of assault by means of force likely to cause great bodily injury and two counts of dissuading a witness from reporting a crime. The jury found gang allegations true. (People v. Hart (July 23, 2018, B277946) [nonpub. opn.] (Hart I).) The trial court found Hart had suffered three prior strikes. The court sentenced Hart to three consecutive terms of 25 years to life, plus 15 years for three five-year serious felony prior convictions under Penal Code section 667, subdivision (a)(1). (Hart I.)
References to statutes are to the Penal Code.
In an opinion filed on July 23, 2018, we affirmed Hart's conviction but remanded the case for the correction of sentencing errors and the abstract of judgment. (Hart I, supra, B277946.) On September 26, 2018, the California Supreme Court denied review. (S250837.)
On September 30, 2018, the Governor signed SB 1393. (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).) Effective January 1, 2019, SB 1393 amended sections 667, subdivision (a)(1), and 1385, subdivision (b)(1), to permit a court to strike a defendant's five-year prior serious felony enhancement. (Garcia, at p. 971; Stats. 2018, ch. 1013, §§ 1, 2.) On October 4, 2018, Hart's appellate counsel filed a motion to stay the remittitur and reinstate the appeal. On October 29, 2018, we issued an order staying the remittitur. On November 1, 2018, we issued an order lifting the stay. We noted "nothing in our opinion prevents Hart from raising any issue he wishes regarding Senate Bill 1393 in the trial court upon remand." The remittitur issued the same day.
On December 11, 2018, the trial court conducted a hearing in accordance with the remand. Hart was not present. Bar panel attorney Wayne Redmond—who had represented Hart at trial—appeared on his behalf. The record does not reflect how far in advance of the hearing Redmond had been reappointed or if he had spoken with Hart, who is in prison in Lancaster.
The court first addressed two sentencing errors identified in our July 2018 opinion (regarding the one-year prison priors and the gang allegations). The court then turned to errors in the abstract of judgment. Then the court asked, "Any other comments or questions, Mr. Morin?" Morin responded,
Louis Morin was the deputy district attorney assigned to the case.
"Mr. Redmond and I were discussing whether or not the new law which takes effect on January 1st of 2019 giving the court discretion to strike five-year priors will become an issue in this case. [¶] It may depend on whether or not the sentence is considered final at this point. I'm not clear on all of the ins and outs of when it is considered final; however, my proposal is this: I would simply ask the court to make a finding that it would not strike those five-year priors if it had the discretion to do so."
Redmond stated,
"And, obviously, I was going to ask the court to strike those based on the change from Senate Bill 1393, which is coming into effect January 1st, that gives the court discretion under 667 and 1385 to strike those five-year priors. . . . [¶] Obviously, it is the court's discretion. . . . You did hear the trial, but Mr. Hart got an extremely high sentence in this case, and I would just propose that with that taken into consideration that the court consider striking those—the three five-year priors that at the time you were mandated to give him."
The court noted it had been the trial judge in the case and it "recall[ed] the events and the trial itself." The court read from the 19-page pre-plea report about Hart's criminal history, dating back to when he was 14 years old. The court then stated,
"The court would not be inclined to strike the five-year priors despite the change in the law. The court finds Mr. Hart to be very dangerous. [¶] In looking at this particular case, the defendant engaged in street gang activity. . . . There was allegedly a gun involved. They were chasing an innocent person—not innocent, but a non-gang member through the complex. They were calling out, 'Don't call the cops or I will fucking kill you.' [¶] Obviously, the benefit of society would be
that this defendant remain in custody for the longest period possible. [¶] And, again, the court would not strike the five-year priors based on the defendant's criminal history, the facts of this case despite the change of the law that may be occurring. So that would be the court's position."
The jury acquitted Hart on the felon-in-possession-of-a-firearm charge and found the gun allegations on the other counts to be not true.
The prosecutor reminded the court the jury had not found the "gun-related charges and enhancements . . . to be true." The court stated, "Correct. But with respect to this incident, we only tried Mr. Hart, and according to the pre-plea report, it was the co-defendant who allegedly had the gun and that might have been—it might have played into the jury's decisions." Redmond said, "Well, we don't know." The court responded,
"But we don't know. [¶] But I was not including the gang enhancement, I'm just saying allegedly a gun had been involved. But even if the gun hadn't been involved, you have a situation here where the individual is being hit and kicked by three 18th Street gang members while he's just hanging out at a parking lot in an apartment complex; so, again, the request would be denied."
On May 31, 2019, the California Appellate Project (CAP) filed in this court on Hart's behalf an application for relief from default. The application included declarations from Hart and Redmond. Hart declared he had heard nothing about his hearing on remand and so in April 2019 he contacted CAP. Redmond declared he had not "communicated" with Hart about "the outcome of the hearing" because he "presumed" the court would "notif[y]" Hart. On July 31, 2019, we granted the application for relief from default.
DISCUSSION
Hart contends he had a right to be present for his hearing on remand at which the court considered whether to strike any of his three serious felony priors. He is right.
When the court conducted the hearing on December 11, 2018, SB 1393 would not take effect for another 20 days. Rather than calendar the matter after January 1, 2019, the court stated it would not "strike the five-year priors despite the change in the law" and the oral request by Hart's counsel that it do so "would be denied." At that juncture, Hart's case was not final. The new law applies to defendants whose cases are not yet final. (Garcia, supra, 28 Cal.App.5th at p. 973; In re Estrada (1965) 63 Cal.2d 740, 744-745.) --------
When the court of appeal remands a case for the trial court to exercise its discretion in sentencing, the defendant has the right to be present with counsel. (People v. Rocha (2019) 32 Cal.App.5th 352; People v. Cutting (2019) 42 Cal.App.5th 344; People v. Rodriguez (1998) 17 Cal.4th 253, 260.) Rocha involved post-conviction requests to strike both firearm enhancements under Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) and serious felony priors under SB 1393. (Rocha, at pp. 355, 360.) Our colleagues in Division 4 held the defendant had the right under section 1260 to be present with counsel at the hearing on any requests he might make under those statutes. (Rocha, at pp. 356-360.)
The Attorney General agrees the trial court erred in deciding the matter without Hart. But the Attorney General argues the error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18) because the "record shows that the trial court was strongly disinclined to grant appellant any leniency in light of the egregious crime facts and appellant's criminal record."
The trial court did discuss Hart's criminal history and some of the facts of the case, and it stated it viewed him as "very dangerous." But we cannot agree that the record shows that nothing Hart and his counsel could have said or done would have altered that ruling. While Redmond had represented Hart at trial and therefore was familiar with the evidence presented, as we noted, the record does not reflect whether he had communicated with Hart before the hearing. Redmond apparently did not file any written motion on Hart's behalf, as none appears in the record. Redmond's sole argument was that Hart already had a very long sentence. On this record, we cannot conclude beyond a reasonable doubt that Hart's presence and participation would have made no difference in the outcome.
DISPOSITION
We remand the case for the court to exercise its discretion to strike or decline to strike one or more of Anthony Edward Hart's three prior serious felony enhancements under SB 1393 at a hearing at which Hart is personally present with counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P.J.
LAVIN, J.