Opinion
E072064
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD JOSEPH KING, Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1807381) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed in part; reversed in part with directions. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Edward Joseph King guilty of (1) being a felon in possession of a firearm (Pen. Code § 29800, subd. (a)(1)); (2) being a felon in possession of ammunition (§ 30305, subd. (a)(1)); and (3) receiving a stolen vehicle valued at more than $950 (§ 496D, subd. (a)). The jury found true the allegation that defendant suffered a prior felony conviction for which he served a prison term. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for a term of four years.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
Defendant raises three issues on appeal. First, defendant contends the trial court erred by finding defendant was voluntarily absent from the trial. Second, defendant asserts the trial court erred by imposing a court facilities fee, a court operations fee, and a restitution fine without first determining defendant's ability to pay the fine and fees. Third, defendant contends the one-year prison term for the prior conviction enhancement (§ 667.5, subd (b)) must be stricken. We strike the one-year enhancement, reverse defendant's sentence, and remand for resentencing but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant's felony settlement conference was held on June 12, 2018. Defendant was not present when the matter was called. At 9:08 a.m., the trial court, with Judge Hansen presiding, issued a bench warrant for defendant. At 11:14 a.m., defendant was present. The trial court recalled the matter and vacated its order for a bench warrant.
Defendant's trial began on Monday, December 10, 2018. Defendant was present in court that day. The prosecutor estimated the trial would last "three to four days" inclusive of Monday and jury selection. Defense counsel agreed with that time estimate. The trial court said, "So I should tell the jury through Friday of this week?" The prosecutor and defense counsel responded, "Yes."
The trial court then explained its schedule. The trial court said, "[Defense counsel], you asked the question. Yes, if we need to, we'll be engaged on Friday in your trial. Let me just suggest, however, I'm far more flexible on Fridays than I am other days in regard to the starting time. As an example, I usually do not set anything on my calendar Monday through Thursday before the trial starts. Why? My intention is to start at 9:00. And we go 9:00 to 12:00. And from 1:30 to 4:00 to 4:15."
The trial court continued, "If you need to adjust, just let me know. But I want to know in advance. Okay. 'In advance' means so I can tell the jury. All right. I don't want them sitting here waiting while everybody is trying to get here. [¶] I expect that we can start at 9:00. And I'm pretty punctual. I try to be. More importantly, the golden rule is don't keep these folks waiting in the hallway. So we need to have witnesses ready to go."
The trial court explained, "But here's my intention, gentlemen. Let's have your witnesses lined up. I have a number of days I'm going to be out in December by commitment to many others—just not myself, to many others. So we're going to get this matter to the jury as swiftly but fairly as we possibly can. Okay? [¶] So I'm just giving you a heads-up. I'm not going to make you start at 8:30. We're not going to go to 5:30. All right. It will be the normal hours. But let's just have our witnesses ready to go."
Defendant moved to bifurcate the portion of the trial concerning the prior conviction enhancement (§ 667.5, subd. (b)). The trial court granted that motion. The trial court asked if defendant waived his right to a jury trial on the bifurcated enhancement. Defendant did not waive his right to a jury on the enhancement.
Defendant was present in court on Tuesday, December 11. On that day, voir dire took place, the jury was sworn, opening statements were given, and witnesses testified. On Wednesday, December 12, defendant was not present when the proceedings began. The trial court dismissed the jury until 1:30 p.m. After defendant arrived at court, the following exchange occurred:
The Court: "Hopefully, we'll be ready to go at 1:30. [¶] Let me make this order, sir. You are to be here.
"The Defendant: Yes, sir.
"The Court: And there will be no further excuses. You have delayed these proceedings on two occasions now. I was not particularly involved with regard—with regard to the other occasion, but my recollection, after being informed, is that you were delayed or late on another occasion. Today you arrived on-site here about—I think it was 11:15—between 11:15, 11:30, whatever time it may have been, but somewhere in that range.
"You were ordered to be back, along with counsel, this morning at—at or near 9:00. It's my understanding that you and [a potential witness] drove together to this courthouse. You have delayed these proceedings. You may well have an excuse. But you will have no further excuse because you will remain on this campus, these premises, this building. And you will be in your seat at 11:20 [sic] as is necessary. [¶] Do you understand that, sir?
"The Defendant: Yes, sir.
"[Defense counsel]: 1:20.
"The Court: Excuse me. 1:20. Thank you, sir. [¶] I've got choices. I can take you into custody right now. I'm not going to do that. All right?
"The Defendant: Yes, sir.
"The Court: I'm not going to make a—any other effort other than the one I've stated here on the record. You must be here. [¶] Do you understand this?
"The Defendant: Yes, sir. Yes, sir.
"The Court: All right. Fair enough."
That afternoon, the prosecution and defense rested. The trial court dismissed the jury so the parties could discuss jury instructions. Defendant waived his presence for the discussion of jury instructions. Before defendant left, the following exchange occurred:
"The Court: Let me do this. Let me do it. Because I'm going to emphasize something here. [¶] I just told the jury we're going to start at 9:00 tomorrow.
"The Defendant: Yes, sir.
"The Court: And on two occasions, we've had to start late, and this last time very late. Because you weren't here.
"The Defendant: Yes, sir.
"The Court: And, quite frankly, I'm warning you that I can make a decision to go forward without you. I'm not saying I will, but I can. [¶] At a minimum, if you're going to be late, you owe us a phone call.
"The Defendant: Yes, sir.
"The Court: So that we don't keep 13 people waiting and everybody in this courtroom waiting for you to get here. [¶] I understand that there may have been a vehicle problem this morning. And I accept that representation. I will not question you about that. But, you know, the third time it happens, which would be tomorrow, if you're late, is not going to be looked at fondly by me. And I may well decide to go ahead and go forward with instructing and arguing at that time in your absence. [¶] So please, I am imploring you—indeed, I'm telling you—to be in that seat tomorrow at 9:00. [¶] Do you understand?
"The Defendant: Yes, sir. I'm sorry."
Defendant told the court he was not staying for the discussion of jury instructions because he "need[ed] to go fix [his] truck" so that he could be at court the following day.
On Thursday, December 13, defendant was not present in court at 9:00 a.m. The following exchange occurred that morning:
"The Court: All right. Going on the record. Both counsel are present. The defendant . . . is not present. [¶] It is now 9:31. My recollection is that, minimally, he was to be here at 9:00. I believe I told him to be here earlier after warning him that I was not going to be particularly interested, unless I was told there was a good reason, to delay the proceedings. Meaning that if he had indicated any problem, he was to communicate that to [defense counsel] so [defense counsel] could speak to me and/or directly to—well, he'd have to speak through [defense counsel]. I've heard nothing. [¶] Have you heard anything, sir?
"[Defense counsel]: Your Honor, I have not received any messages. I could—but I have to say I have not yet called my client. I could try doing that.
"The Court: Do it.
"[Defense counsel]: Right now.
"The Court: Yes.
"[Defense counsel]: Okay.
"The Court: We'll go off the record as you do so.
"(Pause)
"(A discussion was held off the record.)
"The Court: All right. Thank you very much. [Defense counsel], I appreciate very much that you've called your client. And it's now 9:35. And you communicated to me off the record what his present circumstances is. I'm going to give you the opportunity to state whatever you think is necessary to—insofar as—whatever you think is necessary to be said as part of this record in light of the fact that—that we're at a point in time we're going to go forward with closing argument. [¶] So go ahead, sir.
"[Defense counsel]: Yes, your Honor. So my—[defendant], obviously, is not present. He lives in Sage, California, as the Court knows, which is a very rural part of Riverside County. I believe that—although I haven't looked on Google Maps, I believe that the commute time is probably in the range of two hours from Sage to the courthouse here and the Hall of Justice in Riverside.
"[Defendant] was very late yesterday and had advised—through me to the Court that that was due to a vehicle breakdown. He was good about communicating with me. I did receive a message, and he—was able to speak with him. [¶] And, obviously, the Court ordered him to be present this morning at 9:00 a.m. He's not here. I did call, did speak with him. He advised me, and I advised the Court, that he did not have transportation because his vehicle, which was broken yesterday, apparently had not been repaired and he was not able to find another ride to get to court. But he is in communication with me.
"And he has informed me that he would be able to be present tomorrow, Friday, the 14th, first thing in the morning. [¶] So in terms of the defense request, I mean, I—I suppose I feel that I am bound to request to continue the trial until—or, basically, postpone closing arguments, really, until Friday, December 14th, for my client to be present. Closing is a critical stage, obviously, of the proceedings. I think he should be present.
"I also think that his absence during closing would create a risk of the jury drawing an unfavorable inference about him, about his character, about his—what kind of person he is, maybe. And it would cause some unfair prejudice to enter in their minds. [¶] So that's really my main concerns. And so that's the reason for my request to, essentially, delay the proceedings for one day.
"The Court: All right. Let's hear from the People.
"[Prosecutor]: Your Honor, the—apparently, the vehicle that the defendant had issues with is the same vehicle he had issues with yesterday. So he was on full notice that there's issues with the vehicle. He was here yesterday about two and a half hours late. And the Court informed him that should he not show up today—that it was very important for him to be here today, and if he should not show up, you may proceed in absentia.
"And following that—I mean, he was already on notice that there may be an issue with his ride. And he chose to go back to wherever he is—or chose to go to wherever he is. And now, not only does he say that he doesn't have a ride now, he also says he's not going to be here today at all. [¶] So I think it is voluntary on his part. I think the absence is voluntary on his part. And I think, based on that, if the Court finds that the absence is voluntary, we can proceed.
"The Court: Let's set the record. First, I did not say anything to the defendant on the first occasion that he was tardy. He was previously tardy, even before yesterday. To that extent, I just wanted to make sure the record properly reflected that this is the—this is a short trial. And we have continually faced delay after delay, largely in part due to the defendant, who—defendant's inability to be in his seat at the proper time. [¶] Yesterday was a day where there was a lengthy delay. And I think correctly so, [defense counsel] indicated approximately two-and-a-half-hour delay.
"I have consistently asked the jurors to be on time. I have asked the lawyers to be on time. And as such, for us to proceed, that means the defendant must be here irrespective of where he may drive to and where he resides.
"He is out on bail, which is certainly—which certainly affords him some flexibility. I did not take him into custody. I would admit to—I thought yesterday about taking him into custody. Because I had really not a very good feeling that he was going to be on time here today and in light of the totality, the circumstances which I'm placing on the record here. But I chose not to. Rather, I chose to sternly warn him that he must be in his seat so as to cause no further delay.
"I have absolutely little faith in any representation that he makes to [defense counsel] about him being here tomorrow. That ship has, quite frankly, sailed. There's—he assured me he would be here today. He's not here today. That doesn't give me an exactly warm feeling when he communicates to [defense counsel] that he will be here tomorrow. I think that's extremely problematic. I don't think it's likely that he would be here even tomorrow.
"Insofar as it being a voluntary absence, it is a voluntary absence. I told him to be in his seat. He chose to take a vehicle, that he purportedly believed to have mechanical problems, and chose to take that vehicle an unknown distance away from this courthouse last evening rather than making alternative arrangements to be in the vicinity of this courthouse and in his seat at the proper time. That was his choice. And I further communicated to him that he was to immediately contact counsel and/or the Court. Of course, he would properly contact [defense counsel]. And it was only at my request and direction that [defense counsel] called him at 9:30 and received the information that we're now talking about presently.
"That means he ignored my direction to be here on time. He ignored my direction to let us know if there was going to be a problem. He has just totally ignored this process on purpose.
"All right. So with that in mind. We're going to go forward. And I want you to tell him we are, [defense counsel]. We're going to go forward. If he wants to get back here, you'll tell him I'm not starting tomorrow. We're going to finish this case today. And I've completed the record in regard to—in regard to my thoughts. [¶] Anything you want to supplement?
"[Defense counsel]: No, your Honor. Just—well, the only thing I would ask in light of the Court's ruling, is the Court planning to address this issue with the jury? And
"The Court: I wrote this down here. And I should have brought it up with you. But—and if you wish for me to tell the jury, really, in the form of a limited—limiting instruction to disregard his absence, not consider it for any reason whatsoever, I'd do that, if that's your request. That also draws attention, let's be frank about it, to the very fact that he's not here. Of course they're going to know he's not here.
"And he also did not waive jury in regard to the bifurcated matter. And that's why I would ask you to tell him that we're going to proceed with the argument as to the first phase and have this matter submitted to the jury. And if he can get here, he should make very effort to get here. I don't care if he Ubers here, if there is an Uber in Sage, California. I don't care how he gets here. But if we are going to be in an evidentiary phase of the trial, specifically with regard to the bifurcated matters in the second phase of this trial, it would behoove—it would be in his best interest to be here. That has to be impressed upon him.
"But now it's ten to 10:00. All right. And we continue to talk about all these things. But if you want me to, I will give a limiting instruction.
"[Defense counsel]: I would, yes. Because I think it's unavoidable that the jury is going to draw a negative inference from the fact that my client's not here, that they've been delayed on two days consecutively. And so, yes, I would ask for that limiting instruction if the Court
"The Court: I'm going to say this to the jury: You will notice that the defendant is not present. Disregard his absence. Do not consider the fact of his absence for any reason at all.
"Is that sufficient for you?
"[Defense counsel] Yes.
"The Court: Okay. All right. Then I'll do that.
"[Defense counsel]: And then, lastly, if the Court would like, I can contact my client and advise him of the status of the proceedings before we bring in the jury?
"The Court: Yes. I want you to.
"[Defense counsel]: I will do that.
"The Court: Okay. Thank you. [¶] All right. When you're all done, we'll bring the jury in. Thank you."
When the jury was in the courtroom, the trial court said, "My apologies to you that we're not starting on time. But let me talk about something that should be obvious to you here, is that the defendant is not here at present. I want you to disregard the fact that [defendant] is not here. This is the order of the Court. Disregard it. Do not consider that fact at all for any reason whatsoever.
"So meaning that when you go to deliberate on the facts of this case, on the evidence in this case, and following the Court's instructions, there's a further instruction I'm making to you right now. And that is to disregard the fact that he is not here. Do not consider it. Do not use it at all. Don't discuss it. All right? Does everybody understand that? All right. Thank you."
The trial court instructed the jury, the attorneys made their closing arguments, and the jury began its deliberations. After the jury left the courtroom to deliberate, the trial court said, "And I think we're in a stand-by mode as to what's going on with regard to the second phase. But I do encourage—I know you have, [defense counsel]—to impart that I have no intention of not proceeding, when you have your next conversation with your client. So, again, whether it be Uber, a friend, an investigator at the public defender's office, whoever can do it, I'd like for him to be here. And it's no—I'm actually directing him to be here.
"We talked about the fact that I could take him off his bail status and issue a bench warrant for his arrest. But I'm choosing not to do that because there is always a chance this jury could find him not guilty of these charges. And I will not do that at this present time. But it would be in his best interest to be here. Okay?
"[Defense counsel]: Understood."
At 2:00 p.m., the jury informed the court that it had reached verdicts. At 2:35, the jury returned to the courtroom with its verdicts. Defendant was not present. The verdicts were read. Then, the trial commenced on the bifurcated enhancement allegation. The prosecutor gave an opening statement. During the evidentiary portion of the trial, the prosecutor presented exhibits, such as a felony complaint, plea paperwork, and a mugshot. The prosecutor rested and then gave his closing argument. Defense counsel did not give an opening statement or closing argument. The trial court instructed the jury, and the jury deliberated. At 3:20 p.m., the jury notified the court that it made a finding. At 3:29 p.m., the jury returned to the courtroom. Defendant was not present. The finding was read. The trial court excused the jury. The trial court "order[ed] the forfeiture of bail, setting it at no bail," and issued a bench warrant.
DISCUSSION
A. VOLUNTARY ABSENCE
Defendant contends the trial court erred by finding that he was voluntarily absent from the trial.
"The role of an appellate court in reviewing a finding of voluntary absence is a limited one. Review is restricted to determining whether the finding is supported by substantial evidence." (People v. Espinoza (2016) 1 Cal.5th 61, 74 (Espinoza).) Under the substantial evidence standard, we view the record in the light most favorable to the trial court's finding to determine whether it discloses evidence of reasonable, credible, and solid value to support the trial court's finding. (People v. Cole (2004) 33 Cal.4th 1158, 1212.) In determining whether a defendant is absent voluntarily, a court must look at the 'totality of the facts.' " (People v. Gutierrez (2003) 29 Cal.4th 1196, 1204-1205 (Gutierrez).) "[A] trial judge may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence." (Id. at p. 1205.)
In his appellant's opening brief, defendant applies the abuse of discretion standard of review. The substantial evidence standard of review applies to the issue of whether a trial court erred in finding a defendant was voluntarily absent. (Espinoza, supra, 1 Cal.5th at p. 74.) The abuse of discretion standard of review applies to the related issue of whether a trial court erred by proceeding with the trial in the defendant's absence—a trial need not necessarily proceed after a finding that a defendant is voluntarily absent. (Id. at pp. 75-76.) In defendant's appellant's opening brief, in the point heading, he includes both issues: (1) the finding of voluntary absence, and (2) the decision to proceed with the trial. However, the substance of defendant's argument focuses on the finding of voluntary absence. Accordingly, we apply the substantial evidence standard of review.
"A defendant's right to presence is 'fundamental to our system of justice and guaranteed by our Constitution.' " (Gutierrez, supra, 29 Cal.4th at p. 1209.) Section 1043, subdivision (b)(2), provides, "The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] . . . [¶] Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent." (Fn. omitted.)
" 'Unquestionably section 1043, subdivision (b)(2), was designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself.' " (People v. Gutierrez (2003) 29 Cal.4th 1196, 1204-1205.) In determining whether a defendant has voluntarily absented himself from trial, the court must consider whether "defendant's absence was knowing and voluntary." (People v. Connolly (1973) 36 Cal.App.3d 379, 384.)
In regard to the "knowing" prong of the analysis, the record must reflect " 'the defendant 'knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him.' " (Espinoza, supra, 1 Cal.5th at p. 73.)
On Wednesday, December 12, defendant was late to court. After defendant arrived at court, the trial judge said to defendant, "And I may well decide to go ahead and go forward with instructing and arguing at that time in your absence. [¶] So please, I am imploring you—indeed, I'm telling you—to be in that seat tomorrow at 9:00. [¶] Do you understand?" Defendant replied, "Yes, sir. I'm sorry."
The trial court expressly warned defendant on Wednesday that if defendant missed court on Thursday, then the trial might proceed without defendant being present. Defendant said he understood, which demonstrates knowledge that he would be missing his opportunity to participate in the trial if he failed to appear.
On Thursday, when defendant failed to appear, the trial court said, "So with that in mind, we're going to go forward. And I want you to tell him we are, [defense counsel]. We're going to go forward. If he wants to get back here, you'll tell him I'm not starting tomorrow. We're going to finish this case today." The trial court then gave defense counsel time to telephone defendant before calling the jury into the courtroom. Earlier on Thursday morning, defense counsel had spoken with defendant via telephone, so one can reasonably infer that defense counsel was once again able to reach defendant via telephone later on Thursday morning to inform him that the trial would be proceeding on Thursday. Thus, defendant was informed on Thursday morning that the case would be proceeding so he needed to be in the courtroom if he wanted to participate. In sum, the record reflects defendant had knowledge of needing to be present in court on Thursday if he wanted to participate in his trial.
We now turn to the issue of voluntariness. "While a defendant's express waiver in front of the judge might be the surest way of ascertaining the defendant's choice, it is not the only way. A defendant's 'consent need not be explicit. It may be implicit and turn, at least in part, on the actions of the defendant.' " (Gutierrez, supra, 29 Cal.4th at p. 1206.) In determining whether a defendant is voluntarily absent, "a trial court should take reasonable steps to ensure that being absent from trial is the defendant's choice." (Ibid.)
On Wednesday, after defendant arrived at court late, the court said to defendant, "At a minimum, if you're going to be late, you owe us a phone call." Defendant responded, "Yes, sir." On Thursday morning, defendant was supposed to be at court by 9:00 a.m. At 9:31 a.m., the trial court asked defense counsel, "Have you heard anything, sir?" Defense counsel replied, "Your Honor, I have not received any messages."
Defense counsel telephoned defendant and spoke with him. Defense counsel told the court that defendant lived approximately two hours away from the courthouse and that defendant's truck "ha[d] not been repaired and he was not able to find another ride to get to court." If defendant lived two hours away and his truck was inoperable, then, by 7:00 a.m., defendant was aware that he would be unable to be at court by 9:00 a.m. One could reasonably infer that if defendant wanted to attend the trial, then at 7:00 a.m., defendant would have called his attorney to say that he lacked transportation and needed a delay in the proceedings. Defendant's decision not to call anyone to inform them of his transportation difficulties can reasonably be viewed as a decision, on defendant's part, for the trial to proceed in his absence.
Further, as the trial court explained, defendant was aware on Wednesday that his truck was an unreliable mode of transportation, in that it needed repairs. Defendant nevertheless drove the truck two hours away from the courthouse without having a contingency plan for traveling to the courthouse if the unreliable truck failed him on Thursday. As examples, defendant did not have a contingency plan for a friend to drive him, for a rental car, for a taxi, or for public transportation. One could reasonably infer that if defendant wanted to attend the trial on Thursday, then, on Wednesday, defendant would have made a contingency plan for traveling to the courthouse on Thursday because he knew his truck was unreliable. Defendant's decision to not have an alternative transportation option can reasonably be viewed as a decision, on defendant's part, for the trial to proceed in his absence.
In sum, defendant had been previously informed that a potential consequence of failing to be at court or to call his attorney about being late to court would be that the trial would proceed in his absence. The record reflects defendant did little to avoid that consequence from occurring. Defendant did not call his attorney at 7:00 a.m. when defendant knew that he would be unable to be at court at 9:00 a.m. Defendant also drove two hours away from the courthouse when he knew he did not have reliable transportation back to the courthouse. One can reasonably view defendant's decisions as indications that he chose the option of the trial proceeding in his absence. Thus, the record reflects (1) defendant was aware that he could miss the trial if he did not come to court, and (2) defendant chose to let the trial proceed in his absence by (a) not calling his attorney, or (b) having a contingency travel plan. Accordingly, we conclude substantial evidence supports the trial court's finding that defendant was voluntarily absent.
Defendant contends the trial court erred because "the trial court erroneously stated there were two occasions prior to December 12, 2018, that [defendant] had been tardy." On Wednesday, December 12, the trial court said, "And on two occasions, we've had to start late, and this last time very late. Because you weren't here." One can reasonably infer that the trial court was referring to (1) defendant's late arrival at the felony settlement conference, which delayed proceedings by approximately two hours; and (2) defendant's late arrival at trial on Wednesday, December 12, which delayed the trial by over three hours. At the time the trial court spoke, defendant had been late to court on two occasions. Therefore, we are not persuaded that the trial court miscalculated defendant's tardy arrivals.
Next, defendant contends the trial court erred because, on Thursday, it said "we have continually faced delay after delay, largely in part due to the defendant, who—defendant's inability to be in his seat at the proper time." Defendant contends he had 16 court appearances in this case and he was late to or absent from three of them; defendant takes issue with his two late arrivals and one absence being described as continual. If defendant had 16 court appearances and he was late to three of them, then he missed the start of court 18.75 percent of the time. One could reasonably view that amount of tardiness/absence as continual because it is indicative of an ongoing issue. Therefore, we are not persuaded that the trial court misspoke.
Next, defendant contends "there is nothing in the record to indicate [defendant] was choosing not to participate in the court proceedings." Defendant asserts the record establishes that he wanted to participate in the trial. Defendant notes that he requested a jury for the prior conviction enhancement, that he did not waive his presence for readbacks during deliberations, and that he was present for part of his trial.
The standard of review for this issue is the substantial evidence standard. (Espinoza, supra, 1 Cal.5th at p. 74.) Under that standard, we must make all reasonable inferences in favor of the trial court's finding. We cannot parse the record for evidence favorable to defendant and ignore the evidence that is unfavorable to defendant. (People v. Panah (2005) 35 Cal.4th 395, 487-488.) Defendant's argument focuses on the portions of the record that are favorable to him. He does not discuss his failure to call the court by 7:00 a.m. on Thursday, December 13. He also does not discuss his decision to drive two hours away from the courthouse in an unreliable vehicle without a contingency plan for returning to the courthouse in the event his unreliable vehicle became inoperable. Because defendant presents the evidence in the light most favorable to himself, rather than in the light most favorable to the trial court's finding, defendant's argument is unpersuasive.
Defendant urges this court to follow the case of U.S. v. Mackey (1990 2nd Cir.) 915 F.2d 69 (Mackey). In Mackey, the appellate court examined whether the trial court erred in finding the defendant's "absence was 'knowing, voluntary, and without sound excuse.' " (Id. at p. 73.) The defendant's trial was scheduled to begin on October 23, 1989, at 8:30 a.m. On the evening of October 22, the defendant "called his attorney and advised her that he was having difficulty obtaining a ride for the next morning from Catskill to Utica, a distance of approximately 110 miles. The next morning, at approximately 7:45 a.m., [the defendant] called the office of the clerk of the court in Utica to report that he had been unable to obtain transportation." (Id. at pp. 70-71.) The defendant's attorney said she would send someone to transport him. (Id. at p. 71.)
The defendant's attorney "requested that the trial be adjourned until [the defendant] arrived. The court delayed the commencement of jury selection until approximately 11:00 a.m. Jury selection was then completed in [the defendant's] absence at about 12:30 p.m. [¶] After a recess for lunch, with [the defendant] still absent, [the defendant's] attorney put her request for an adjournment on the record. [The defendant's] counsel pointed out the telephone calls from [the defendant] concerning lack of transportation, and further stated, 'He doesn't have a driver's license and he is of a low socioeconomic status and he doesn't have the money to take a cab and hire someone, and I guess he is just experiencing trouble getting here this morning and this afternoon.' Government counsel agreed that it might be appropriate for further proceedings to await [the defendant's] arrival, either on his own accord or in the custody of a marshal, but noted that the court 'had a complete jury panel sitting here awaiting his trial.' [¶] The court continued its refusal to adjourn, but agreed to further delay the proceedings by not taking testimony in the case until 1:50 p.m. that afternoon." (Mackey, supra, 915 F.2d at p. 71.)
The court reconvened at 1:55 p.m. and testimony began. (Mackey, supra, 915 F.2d at p. 71.) The defendant arrived in the courtroom "[a]t approximately 2:50 p.m., during the testimony of the government's second witness." (Ibid.) "[The defendant] missed the jury selection and approximately one hour of the proceedings, including all of the testimony of the government's first witness and a portion of the testimony of its second witness." (Ibid.) On October 24, the defendant was present in court. On October 25, the defendant was not present in court "having previously telephoned the clerk's office to advise his attorney and the court that the vehicle transporting him from Catskill had broken down. The jury continued deliberating without knowledge of [the defendant's] absence, and reached its verdict at 8:35 a.m., which was thereupon returned in [the defendant's] absence." (Ibid.)
The appellate court explained, "In this case, however, defense counsel put forth a 'plausible, verifiable, and essentially unrebutted explanation for [the defendant's] absence.' [Citation.] Defense counsel indisputably advised the court that [the defendant] was having trouble getting transportation to court." (Mackey, supra, 915 F.2d at p. 73.) The appellate court concluded "that [the defendant's] conduct fell short of the 'knowing, voluntary' absence that is required to abrogate his constitutional right to be present during his trial." (Id. at pp. 73-74.)
In Mackey, the defendant called his attorney the evening before trial, and he called the trial court clerk prior to the start of trial, to advise them that he was having transportation issues. (Mackey, supra, 915 F.2d at pp. 70-71.) The defendant also arrived at court at 2:50 p.m. (Id. at p. 71.) The defendant's actions in Mackey could reasonably be viewed as evidence of wanting to participate in the proceedings, in that he notified people of his transportation issues and ultimately arrived at court in the afternoon.
By contrast, in the instant case, defendant did not call anyone, at any point, to inform them that he had transportation issues and would be late to, or absent from, court on Thursday. Defendant's transportation issues came to light after defendant's attorney called defendant after defendant's failure to appear. Also, unlike the defendant in Mackey, defendant did not come to court later in the day. The evidence in the instant case can reasonably be interpreted as defendant choosing for the trial to proceed in his absence due to defendant's lack of action, especially given that defendant was told that a phone call was the minimal action he would need to take if he could not arrive on time. Accordingly, because the evidence in this case can be distinguished from the evidence in Mackey, we do not reach the same result as Mackey.
At defendant's sentencing hearing, defendant's half brother said, "I know he didn't make it to his own trial because he didn't have gas. And he's too proud to call me and say, can you just send me some money or give me a gas card, which I've done before. Or can you drive me there? I'm in Orange County." In our review, we have focused on the information that was available to the trial court at the time the trial court made its finding. (See People v. Houston (2012) 54 Cal.4th 1186, 1215 [review "focuses on the state of the evidence as it stood at that point"].) However, if we included the foregoing statement in our review, then our conclusion would be the same because the statement reflects that if defendant had telephoned his half brother, then he might have been transported to court but defendant did not call his half brother. (See People v. Connolly, supra, 36 Cal.App.3d at p. 385 ["additional information may be presented"].) Defendant's decision to not call his half brother indicates a choice to let the trial proceed in his absence.
B. PRIOR CONVICTION ENHANCEMENT
1. PROCEDURAL HISTORY
In regard to the prior conviction enhancement, the jury found that, on February 1, 2017, defendant was convicted of being a felon in possession of a stolen vehicle (§ 666.5, subd. (a)) and that defendant served a prison sentence for that crime. (§ 667.5, subd. (b).)
In the instant case, defendant's sentencing hearing was held on January 25, 2019. At the sentencing hearing, defendant's attorney argued the trial court should impose the midterm three-year prison term for the principal count, a consecutive one-year prison term for the enhancement, and have the other two prison terms run concurrent, which would result in a four-year prison sentence. The prosecutor argued for all the terms to be consecutive, which would result in a sentence of six years four months. Alternatively, the prosecutor argued for a sentence of four years eight months because defendant's possession of a firearm was separate from the principal offense of possessing a stolen vehicle.
The trial court explained that four years is "a long time." The trial court explained, "Well, I just find on balance the factors in mitigation and aggravation based upon the totality of the circumstances to be essentially on balance. And as such, I pick [the] middle term. [¶] You make [a] great argument, [prosecutor]. I don't disagree with you. Maybe it's because of the fact I've seen so many far more serious matters with me lately. I'm going to move forward." For the prior conviction enhancement (§ 667.5, subd. (b)), the trial court sentenced defendant to prison for a consecutive one-year term, which resulted in a total sentence of four years.
2. ANALYSIS
Defendant asserts this court should strike the one-year prison term associated with the prior conviction enhancement (§ 667.5, subd. (b)). The People concede defendant is correct.
Effective January 1, 2020, section 667.5, subdivision (b), was amended to read, "[T]he court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." Prior to January 1, 2020, a one-year prison term was mandatory for "each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170." (Prior § 667.5, subd. (b) [ver. eff. Jan 1, 2019].) In other words, the law has changed so that now, a one-year prison sentence is only imposed when the prison prior was for a sexual offense. (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
In the instant case, the jury found defendant's prior conviction pertained to possession of a stolen vehicle. (§ 666.5, subd. (a).) Because defendant's prior conviction was not for a sexual offense, we conclude the one-year prison term associated with the prior conviction enhancement (§ 667.5, subd. (b)) must be stricken.
We now turn to the issue of defendant being resentenced. The People assert, "This court should remand the matter to the trial court with directions to resentence [defendant]. This will allow the trial court to restructure his sentence to take into consideration the fact that the prison prior is no longer valid." Defendant agrees that "this Court should remand the matter to the superior court with directions for resentencing."
We reverse defendant's sentence in its entirety "to allow the [trial] court to exercise its sentencing discretion in light of the changed circumstances." (People v. Jennings (2019) 42 Cal.App.5th 664, 682; see also People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].) We express no opinion regarding the trial court's sentencing choices on remand.
C. FEES
Defendant contends the trial court erred by imposing the court facilities fee (Gov. Code, § 70373) and the court operations fee (Pen. Code, § 1465.8) without determining defendant's ability to pay the fees. Additionally, defendant asserts the trial court erred by not staying the restitution fine (Pen. Code, § 1202.4) because the court did not determine defendant's ability to pay the fine.
We are reversing defendant's sentence in full, as discussed ante, so that the trial court may resentence defendant. The fines and fees imposed at defendant's original sentencing hearing are included in that reversal. (See People v. Buycks, supra, 5 Cal.5th at p. 893 [a full resentencing hearing is appropriate]; People v. Nilsson (2015) 242 Cal.App.4th 1, 34 ["new sentences (including terms, fines, fees, and restitution)"].) Therefore, this issue is moot because we can provide defendant no further relief on the issue. (People v. Echavarria (2017) 13 Cal.App.5th 1255, 1272.)
DISPOSITION
Defendant's sentence is reversed in its entirety. The trial court is directed to (1) strike the prior conviction enhancement (§ 667.5, subdivision (b)); and (2) resentence defendant. At the resentencing hearing, the trial court shall permit defendant to raise objections to the fines, fees, and assessments. (People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.