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People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 14, 2012
B232690 (Cal. Ct. App. Feb. 14, 2012)

Opinion

B232690

02-14-2012

THE PEOPLE, Plaintiff and Respondent, v. GILBERT FERNANDO HERNANDEZ, Defendant and Appellant.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Marc A. Kohm, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication

(Los Angeles County Super. Ct. No. KA086886)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed and remanded with directions.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Gilbert Fernando Hernandez, appeals the judgment entered following his conviction, by jury trial, for transportation of cocaine base, possession of cocaine base, transportation of methamphetamine and possession of methamphetamine, with prior prison term and prior serious felony conviction findings (Health & Saf. Code, §§ 11352, 11350, 11379, 11377; Pen. Code, §§ 667.5, subd. (b), 667, subd. (b)-(i)). He was sentenced to state prison for a term of 10 years.

All further statutory references are to the Penal Code unless otherwise specified.

The sentence is vacated and the matter is remanded for resentencing. In all other respects the judgment is affirmed.

BACKGROUND

This is an appeal following a remand to the trial court for resentencing. In an opinion in case No. B221290 (nonpub.opn. filed December 16, 2010 [Klein, P.J., with Kitching and Aldrich, JJ.]), this court affirmed Hernandez's convictions, modified his sentence, and remanded to the trial court for resentencing. Hernandez now claims further error occurred during his resentencing.

CONTENTIONS

1. The trial court erred by resentencing Hernandez without his being present.

2. The trial court miscalculated Hernandez's custody credits.

3. The trial court erred by imposing laboratory analysis and drug program fees in connection with count 3.

4. The abstract of judgment must be corrected.

DISCUSSION

1. Hernandez's presence was required at the resentencing hearing.

Hernandez contends the trial court violated his right to be present at the resentencing hearing. This claim has merit.

a. Background.

The jury convicted Hernandez for transporting both cocaine base (count 1) and methamphetamine (count 3). The jury acquitted him of possessing cocaine base and methamphetamine for sale (counts 2 and 4), convicting him instead of simple drug possession on those counts. The trial court originally sentenced Hernandez to eight years on count 1 by imposing a four-year base term which it doubled under the Three Strikes law. To this, the trial court added a consecutive term of two years on count 3, for a total term of 10 years. The court imposed and stayed prison terms on the count 2 and count 4 convictions, as well as on three prior prison term enhancement findings.

On appeal, in case No. B221290, we concluded the trial court had erred by imposing the consecutive two-year term on count 3 (transporting methamphetamine) because this sentence violated the multiple punishment prohibition set out in section 654. As a result, we ordered that sentence stayed and remanded for resentencing in order to give the trial court an opportunity to restructure Hernandez's sentence if it chose to do so.

On remand, defense counsel objected that Hernandez had not been ordered into court to attend the resentencing hearing. The trial court justified Hernandez's absence by assuring counsel the only matter to be addressed was restructuring the sentence, which in any event would amount to no more than the original 10-year term.

The trial court then sentenced Hernandez to a 10-year term, as follows: on count 1, the court again imposed an eight-year term, to which it added consecutive one-year terms for two of the three prior prison term enhancements that had been stayed at the original sentencing. The trial court ordered the third prior prison term enhancement finding stricken pursuant to section 1385.

b. Discussion.

Hernandez relies on People v. Rodriguez (1998) 17 Cal.4th 253, which addressed the question of remands in the aftermath of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the case establishing a trial court's discretion to dismiss Three Strikes priors. Rodriguez asked, "Is it 'just under the circumstances' to require the presence of defendant and his counsel on remand, at the first occasion on which the trial judge will consider whether to exercise his sentencing discretion in defendant's favor?", and concluded the answer was yes: "Our power to order a limited remand . . . includes the authority to direct the trial court to conduct ' such further proceedings as may be just under the circumstances' (§ 1260, italics added.) Because to permit the trial court to decide how to exercise its discretion under section 1385 without affording defendant and his counsel an opportunity to address the subject would be manifestly unfair, section 1260 provides sufficient authority to require defendant's presence on remand." (People v. Rodriguez, supra, at pp. 258, 260.)

People v. Buckhalter (2001) 26 Cal.4th 20, subsequently pointed out that Rodriguez was based on neither constitutional nor statutory requirements: "Under section 1260 itself, we concluded, it was 'just under the circumstances' to require the defendant's presence with counsel on remand, even if the trial court ultimately decided against alteration of its earlier Three Strikes sentence, in order to allow the defendant to advance any arguments for the favorable exercise of the court's discretion." (Id. at p. 35.)

"A criminal defendant's right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant, however, 'does not have a right to be present at every hearing held in the course of a trial.' [Citation.] A defendant's presence is required if it 'bears a reasonable and substantial relation to his full opportunity to defend against the charges.' [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendant's right to a fair and impartial trial. [Citation.]" (People v. Hines (1997) 15 Cal.4th 997, 1038-1039.) "Despite the statutory mandate in sections 977 [in felony case, defendant 'shall be present . . . at the time of the imposition of sentence'] and 1043 ['defendant in a felony case shall be personally present at the trial'], we have regularly applied a harmless-error analysis when a defendant has been involuntarily absent from a criminal trial." (In re Jesusa V. (2004) 32 Cal.4th 588, 625.)

Hernandez argues: "This court remanded the matter back to the trial court for resentencing and/or restructuring of the sentence with instructions that the court either strike the Section 667.5, subdivision (b) allegations or imposes [sic] sentences on the allegations and with the limitation that the aggregate of the newly imposed sentence not be greater than the sentence that had been previously imposed. [¶] As the Rodriguez Court held that the interests of justice required the defendant to be present at the resentencing under the facts of that case, this court should likewise determine that the interests of justice dictate that appellant should have been present at his resentencing when the trial court considered whether, and to what extent, to exercise its Section 1385 sentencing discretion."

The Attorney General, however, argues Hernandez's "presence was not necessary because the trial court had already made the relevant decisions at the initial sentencing." "[T]he problem in Rodriguez was that the trial court had not realized at the original hearing that it had discretion to make a certain sentencing choice. In that circumstance, the defendant had to be given the opportunity to advance arguments relevant to that discretionary choice. Here, by comparison, the trial court mistakenly thought it had more discretion than it did - far from imposing the maximum permissible sentencing, the court originally made a discretionary choice, in appellant's favor, to stay all of the prior prison term enhancements. On remand, the court made no further discretionary choices. It simply altered the mathematical formula to reach the same 10-year sentence it had originally imposed. Because appellant had already had the opportunity to address the court's discretionary choices, his absence at resentencing did not violate this right to be present." The Attorney General asserts: "The problem in this case was that the trial court made an unauthorized discretionary sentencing choice in appellant's favor at the original hearing. Appellant could not have received a more favorable result at resentencing and thus any error was harmless."

We are not persuaded by these arguments. There was still a discretionary decision to be made by the trial court on remand: whether to impose or to strike the prior prison term enhancements. Although Hernandez did have an opportunity at the original sentencing to argue against imposition of these enhancement findings, the trial court in effect "punted" at that time by staying the enhancements rather than either ruling in Hernandez's favor, by dismissing the enhancements, or ruling against him by imposing them. Hence, the trial court's discretion on remand to impose or dismiss the prior prison term enhancement findings was analogous to the trial court's discretion in Rodriguez to decide on remand whether to impose or dismiss a Three Strikes prior. We do not understand the Attorney General's assertion that Hernandez could not have received a more favorable result. A trial court has discretion, under section 1385, to strike a prior prison term enhancement finding (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561), and while the trial court was not permitted to increase Hernandez's sentence on remand, there was nothing to prevent it from reducing his sentence. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 ["the trial judge's original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased"].)

Hence, we conclude the trial court should have ordered Hernandez into court so he could attend the resentencing hearing. We will remand this matter to the trial court for resentencing.

2. Recalculation of presentence custody credits.

Hernandez contends the trial court erred by failing to recalculate his presentence custody credits at the remand hearing. This claim has merit.

"[W]hen a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (People v. Buckhalter, supra, 26 Cal.4th at p. 29.) "[W]hen a sentence is modified while in progress, the statutes provide that defendant's confinement under the original commitment should simply be credited as partial service of the sentence ultimately imposed." (Id. at p. 36.)

Because we must remand due to the failure to have Hernandez present at his resentencing, the trial court should perform this recalculation.

3. Laboratory analysis and drug program fees on count 3 should be stayed.

In our original opinion, we held the trial court had erred by imposing, in connection with counts 2 and 4, the laboratory analysis and drug program fees prescribed by Health and Safety Code sections 11372.5 and 11372.7, because the sentences on those counts had been stayed. On remand, the trial court stayed the sentence on count 3, but failed to stay the laboratory analysis and drug program fees related to that conviction. The Attorney General properly concedes this oversight must be corrected. (See People v. Pearson (1986) 42 Cal.3d 351, 363 [because "the defendant is penalized if he suffers enhancements based on stayed convictions" it would violate section 654 "to enhance a defendant's sentence because of a stayed conviction"].)

Health and Safety Code section 11372.5, subdivision (a), provides: "Every person who is convicted of a violation of Section 11350, . . . 11377, . . . of this code . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense. The court shall increase the total fine necessary to include this increment."

Health and Safety Code section 11372.7, subdivision (a), provides: "Except as otherwise provided in subdivision (b) or (e), each person who is convicted of a violation of this chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars ($150) for each separate offense. The court shall increase the total fine, if necessary, to include this increment, which shall be in addition to any other penalty prescribed by law."

The laboratory analysis and drug program fees prescribed by Health and Safety Code sections 11372.5 and 11372.7 are amounts to be added to the total fine imposed on a defendant and, therefore, constitute "penalties" or "punishment" within the meaning of section 654. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522 [because laboratory analysis fee is a fine, it is subject to penalty assessments]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1695 [drug program fee is fine or penalty].)
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The criminal laboratory analysis and drug program fees related to count 3 must be stayed.

4. Clerical errors in the abstract of judgment must be corrected.

Hernandez contends, and the Attorney General properly concedes, that several clerical errors in the abstract of judgment must be corrected. The abstract misdescribes the convictions on count 2 (Health & Saf. Code, § 11350 [possession of cocaine base]) and count 4 (Health & Saf. Code, § 11377 [possession of methamphetamine]) as being possession for sale offenses, rather than simple possession offenses. The abstract describes the conviction on count 1 as the "sale/transportation/offer to sale [sic] controlled substance," and the conviction on count 3 as the "sale of controlled substance." These descriptions should be amended to reflect convictions for transporting controlled substances.

DISPOSITION

The sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with this opinion. In all other respects the judgment is affirmed. The clerk of the superior court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.


Summaries of

People v. Hernandez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Feb 14, 2012
B232690 (Cal. Ct. App. Feb. 14, 2012)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GILBERT FERNANDO HERNANDEZ…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Feb 14, 2012

Citations

B232690 (Cal. Ct. App. Feb. 14, 2012)