Opinion
B330581
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. RODERICK ANTHONY KENNEDY, Defendant and Appellant.
Matthew Missakian, 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, Noah P. Hill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. NA049282 Judith L. Meyer, Judge. Reversed and remanded with directions.
Matthew Missakian, 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, Noah P. Hill and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
LUI, P. J.
In 2004, appellant Roderick Anthony Kennedy pleaded no contest to second degree robbery and admitted multiple prior "strike" convictions. He was sentenced to 25 years to life plus five years pursuant to Penal Code section 667, subdivision (a)(1). In June 2022, the California Department of Corrections and Rehabilitation (CDCR) issued a recall and resentencing letter recommending that appellant be resentenced pursuant to former section 1170.03, subdivision (a)(1), now section 1172.1. Appellant was not present at the May 18, 2023 resentencing hearing at which the trial court denied appellant's Romero motion, struck the five-year section 667(a)(1) enhancement, and imposed a new sentence of 25 years to life.
All further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The Attorney General (respondent) concedes that appellant was denied his constitutional right to be present at the resentencing hearing. Because we cannot conclude that the constitutional violation was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman), we remand the matter to the trial court to conduct a new resentencing hearing at which appellant must be present unless he waives that right pursuant to section 1193.
BACKGROUND
Plea and initial sentence
An information charged appellant with one count of attempted second degree robbery (§§ 664, 211 (count 1)) and seven counts of second degree robbery (§ 211 (counts 2-8).) As to all counts, the information further alleged appellant had suffered 20 prior "strike" convictions (§§ 667, subd. (d); 1172.1, subd. (b)).
Appellant pleaded guilty to one count of robbery and admitted the prior strike convictions. Appellant was sentenced to 25 years to life plus five years pursuant to section 667, subdivision (a)(1). The remaining counts were dismissed pursuant to the plea agreement.
CDCR resentencing recommendation
In June 2022, the CDCR sent a letter to the superior court, recommending that the court recall appellant's sentence and resentence him pursuant to what is now section 1172.1 because the court now had discretion to strike appellant's section 667, subdivision (a)(1) prior serious felony conviction enhancement. Attached to the letter was a cumulative case summary and evaluation report, which included information on appellant's commitment offenses, prior juvenile and adult criminal history, parole history, institutional adjustment, self-help activities, medical/mental health, and support from relatives and friends.
People's opposition
On May 17, 2023, the Los Angeles County District Attorney filed a response to the CDCR's recommendation. The district attorney agreed that appellant's prior serious felony enhancement should be stricken, but argued against further reducing appellant's sentence because appellant still posed a risk to public safety. The district attorney noted that no evidence was offered "to assure the court that [appellant] has addressed his propensity for great violence, and there is no evidence that the risk of [appellant] engaging in similar crimes in the future have been mitigated, such that public safety is not an issue." The district attorney further noted that appellant had not participated in any self-help programs during his incarceration, that appellant received a score of 100 on the COMPAS assessment for substance abuse, and that appellant "failed to adequately address his substance abuse rehabilitative needs." The district attorney argued that an indeterminate sentence remained appropriate so that the parole board could determine if appellant remained a threat to society.
Appellant's resentencing memorandum
On May 18, 2023, appellant filed a section 1172.1 resentencing memorandum. Attached to the memo were several letters of recommendation and appellant's confidential correctional inmate file maintained by the CDCR (commonly known as the C-file; see People v. Landry (2016) 2 Cal.5th 52, 71). Defense counsel argued that [appellant's] C-file indicated that appellant "has been programming exceptionally well." Counsel further argued: "During the reporting period from 2004 through 2022 [appellant] has had no incidents involving violence. [Appellant's] classification score continually decreased due to 'positive behavior/no serious violations.' [Appellant's] C-file notates comments such as 'favorable programming,' 'respectful,' and 'courteous and helpful.' In 2018 and 2019, [appellant] donated to, and participated in, Relay for Life, a fundraising event for the American Cancer Society."
Defense counsel maintained that appellant's circumstances had changed since his original sentencing and that" 'continued incarceration is no longer in the interest of justice.'" Resentencing hearing At the outset of the May 18, 2023 resentencing hearing, the trial court noted that appellant was not present. The trial court asked defense counsel whether he had "977(b) authority," and counsel responded, "I do, Your Honor."
A March 16, 2023 minute order setting the May 18, 2023 hearing date on appellant's resentencing indicates that appellant was to appear at the May 18, 2023 hearing "VIA WEBEX."
Section 977, subdivision (b)(1) states that a defendant must be physically present at the time sentence is imposed. Subdivision (b)(2) allows for waiver of the defendant's presence by a signed waiver form or, with the court's consent, waiver by counsel of record. The defendant's counsel must state on the record that the defendant has been advised of the right to be physically or remotely present for the hearing at issue, has waived that right, and agrees that notice to the attorney that the defendant's physical or remote presence in court at a future date and time is required is notice to the defendant of that requirement. (§ 977, subd. (b)(2).)
Defense counsel then argued that he had reviewed appellant's C-file and did not see any indication of a substance abuse problem: "There is nothing current, since his being in custody since 2004 in state prison that has anything to do with drugs. He tested once; they had him test once. Nothing became of the urine test. So I don't believe that there is any serious drug issue that needs to be addressed, at least the CDC doesn't think so in any of their follow-up reviews with [appellant]."
As to appellant's participation in self-help programs, defense counsel pointed out that appellant was on a waiting list for programs and stated: "My understanding is these aren't just programs you can sign up for and can just walk into." The trial court responded, "He had at least 21 years to walk into those programs." Defense counsel explained that the programs are not offered to "lifers" during the first or 10th year of incarceration. He noted that appellant was 71 years old, had no violations for any type of violence, has been an "excellent worker," was a "model inmate." Defense counsel asked the trial court to resentence appellant to a determinate sentence and to release him on time served. The trial court responded, "You're asking this court to basically do a Romero motion at this point as well."
People v. Romero, supra, 13 Cal.4th 497.
The prosecutor argued that appellant had a lengthy criminal history and that he "conducts himself in a very dangerous manner." The prosecutor further argued that given the length of appellant's incarceration, one would "assume that he would have [done] something to better himself and show some rehabilitation, which he has not." The prosecutor asked the court to strike appellant's five-year enhancement and urged the court, "Let parole decide when he is ready for parole."
The trial court addressed appellant's Romero motion and discussed the factors set forth in People v. Williams (1998) 17 Cal.4th 148. Based on its analysis, the court declined to strike any of appellant's prior strike convictions. The trial court recalled appellant's sentence, struck the five-year enhancement, and resentenced appellant to a term of 25 years to life. The trial court also accorded appellant 8,181 days of conduct credit.
This appeal followed.
CONTENTIONS ON APPEAL
Appellant contends he was denied his constitutional right to be present at the resentencing hearing and the trial court committed prejudicial error by resentencing him in absentia.
Appellant further contends the trial court erred by denying his Romero motion, and that his defense counsel rendered ineffective assistance if that error is deemed to be forfeited. Finally, appellant claims he is entitled to an additional 1,037 days of conduct credit.
DISCUSSION
A criminal defendant has a right, under both the federal and California Constitutions, to be personally present at a resentencing hearing. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348 (Cutting).) Appellant was not present at the May 18, 2023 resentencing hearing. He did not waive his right to be present, and his attorney did not represent to the trial court that appellant had done so. Respondent concedes, and we agree, that the trial court erred in proceeding with resentencing in appellant's absence and without a valid waiver of his right to be present.
Because the trial court's error resulted in a violation of appellant's constitutional right to be present at his resentencing, we review that error under Chapman, supra, 386 U.S. at page 23, to determine if it was harmless beyond a reasonable doubt. (Cutting, supra, 42 Cal.App.5th at p. 348.)
Respondent contends appellant's challenge lacks merit because he fails to demonstrate any prejudice from his absence at the resentencing hearing. That argument misapprehends the People's burden on appeal. Under Chapman, the People, and not the defendant, bear the burden of demonstrating that violation of the defendant's federal constitutional right was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; People v. Mower (2002) 28 Cal.4th 457, 484; Cutting, supra, 42 Cal.App.5th at p. 349.)
Respondent's argument would be correct if the violation of appellant's right to be personally present were not federal constitutional error. A violation of a criminal defendant's right to be present under the California Constitution" 'is state law error only and therefore is reversible only if" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" '" (Cutting, supra, 42 Cal.App.5th at p. 349, fn. 3.)
Here, we cannot conclude that appellant's absence from the resentencing hearing was harmless beyond a reasonable doubt. Appellant may have provided relevant information regarding any past or ongoing substance abuse problem, what and when rehabilitative programs had been made available to him, and why he had or had not participated in certain programs. Appellant may also have provided input concerning his background, character, life circumstances and prospects, and factors relevant to his request for relief under Romero. He may have "offered mitigation factors that arose after his original sentencing; he may have expressed remorse; [or] he may have made a plea for leniency." (Cutting, supra, 42 Cal.App.5th at p. 350.) While the trial court may or may not have chosen to credit what appellant might have said, if anything, we cannot conclude beyond a reasonable doubt that appellant's presence at the hearing would not have affected the outcome. We therefore reverse and remand the matter for resentencing.
Because appellant will be entitled to a full resentencing hearing on remand, we do not address his arguments concerning his Romero motion or his entitlement to additional conduct credits. (See People v. Velasco (2023) 97 Cal.App.5th 663, 692, fn. 8.)
DISPOSITION
The May 18, 2023 resentencing order is reversed and the matter is remanded to the trial court with directions to conduct a full resentencing hearing consistent with the provisions of Penal Code section 1172.1 at which Roderick Anthony Kennedy is present unless he waives his presence.
We concur: CHAVEZ, J. HOFFSTADT, J.