Opinion
2d Crim. No. B300770
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. IVAN QUINTANA, Defendant and Appellant.
Richard B. Lennon, 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, Acting Assistant Attorney General, Jason Tran and Shezad H. Thakor, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2016037607)
(Ventura County)
Ivan Quintana appeals a judgment entered following resentencing pursuant to Senate Bill No. 1393 and the five-year serious felony enhancement of Penal Code section 667, subdivision (a)(1). We reverse and remand for a second resentencing where Quintana must be present unless he waives his constitutional and statutory rights to be present pursuant to section 1193.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Evidence presented at the preliminary examination established that on October 17, 2016, Quintana struck a realtor and took her purse as the realtor was assisting Quintana's mother (counts 5 and 6). Later that day, Quintana struck a customer inside a credit union as the customer waited for teller assistance. Quintana took that customer's wallet and fled (count 1).
Police officers later arrested Quintana. During the jail booking process, Quintana struck the booking deputy and fled. The deputy soon caught and restrained Quintana in the parking lot (counts 2, 3, and 4).
On November 1, 2016, the trial court declared a doubt concerning Quintana's mental competency. Thereafter, following the appointment of and receipt of psychological evaluations regarding Quintana's competency, the court found Quintana incompetent to stand trial pursuant to section 1368 and it committed him to the State Department of State Hospitals. On August 7, 2017, the court found that Quintana's competency had been restored and it resumed criminal proceedings.
On July 30, 2018, Quintana entered a nolo contendere plea to second degree robbery, battery upon a police officer, and misdemeanor battery. (§§ 211, 243, subd. (c)(2), 242.) He also entered a guilty plea to escape by force or violence, resisting an executive officer, and misdemeanor petty theft. (§§ 4532, subd. (b)(2), 69, subd. (a), 484, subd. (a).) In addition, Quintana admitted that he suffered a prior serious felony and strike conviction and served a prior prison term. (§§ 667, subd. (a), 667, subds. (b)-(i), 667.5, subd. (b).) He faced a maximum sentence of 30 years 8 months.
On August 27, 2018, the trial court sentenced Quintana and, over the prosecutor's objection, struck Quintana's felony strike allegation. The court also struck Quintana's prior prison term allegation. Pursuant to the court's indicated sentence, the court then sentenced Quintana to a nine-year eight-month prison term. The sentence included a five-year enhancement for the prior serious felony conviction of section 667, subdivision (a)(1). The court also imposed various fines and fees and awarded Quintana 782 days of presentence custody credit.
Quintana appealed and contended that the newly enacted amendment to section 1385, permitting trial courts the discretion to dismiss five-year sentence enhancements imposed pursuant to section 667, subdivision (a)(1), applied to him because his case was not yet final. The Attorney General correctly conceded.
Thereafter, in an unpublished opinion, we reversed Quintana's sentence and remanded the matter to allow the trial court to determine whether to strike the five-year enhancement pursuant to section 1385. (People v. Quintana (May 15, 2019, B292452).) Our disposition order remanded the case with specific directions to the trial court to decide, at a hearing at which Quintana had the right to be present with counsel, whether it would exercise its discretion to strike the prior serious felony conviction imposed pursuant to section 667, subdivision (a).
On August 2, 2019, the trial court held a resentencing hearing. The prosecutor and Quintana's defense attorney attended but Quintana was not present. The appellate record does not contain any waiver of Quintana's right to be present. Neither party advanced any arguments regarding the exercise of the court's discretion; Quintana was represented by an attorney who had not appeared previously. In a brief proceeding that consists of one and one-half pages of reporter's transcript, the court declined to exercise its discretion and strike the enhancement. The trial judge stated: "I understand . . . that I have the discretion under the laws to strike the five-year [section 667, subdivision (a)] prior. [T]he record needs to reflect the fact . . . that I understand that. It's not an oversight on my part. And the nine-year eight-month commitment Mr. Quintana received from me at the sentencing on July 30, 2018, was my intention. That was my intention. He had exposure far in excess of that. It was my intention to impose the counts imposed together with the [section 667, subdivision (a)] prior understanding I had the discretion to strike it. I declined to do it then. I decline to do it now. And the sentence I imposed is what I intended to do in the interest of justice."
Quintana appeals and contends that he was denied his constitutional and statutory rights to be present at resentencing, a critical stage of the proceedings according to long-held federal and state judicial decisions. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348 [collecting decisions]; People v. Rocha (2019) 32 Cal.App.5th 352, 356-357 [same].) The Attorney General concedes the point but asserts that the error is harmless beyond a reasonable doubt given the trial judge's statements at resentencing.
DISCUSSION
A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the proceeding. (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 647]; People v. Perry (2006) 38 Cal.4th 302, 311.) Sentencing and resentencing after remand are critical stages of a criminal proceeding at which the defendant has a right to be present. (People v. Doolin (2009) 45 Cal.4th 390, 453 [sentencing is a critical stage]; People v. Cutting, supra, 42 Cal.App.5th 344, 348 [resentencing is a critical stage]; People v. Rocha, supra, 32 Cal.App.5th 352, 356-357 [resentencing is a critical stage].) The right to be present at resentencing rests upon the federal and state constitutions and section 977. (Rocha, at p. 357.) A defendant charged with a felony "shall be personally present . . . at the time of the imposition of sentence" unless he executes a written waiver of his right to be present. (§ 977, subd. (b)(1); People v. Davis (2005) 36 Cal.4th 510, 531; Rocha, at p. 357.)
In resentencing, the trial court may consider " 'any pertinent circumstances which have arisen since the prior sentence was imposed.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) The court may consider any applicable post-conviction factors, including a defendant's disciplinary record while incarcerated, his remorse or record of rehabilitation, or any mental health treatment, among other factors. Here Quintana did not have an opportunity to personally emphasize any mitigating evidence that would weigh in favor of leniency. (People v. Rodriguez (1998) 17 Cal.4th 253, 258 ["defendant and his counsel have never enjoyed a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion"]; People v. Rocha, supra, 32 Cal.App.5th 352, 360.) Indeed, the trial court rested its resentencing decision on the circumstances of the underlying crimes and did not consider any relevant information that defendant may have been able to bring to its attention. The Attorney General has not met his burden of establishing a lack of prejudice pursuant to any standard of review.
We express no opinion regarding the trial court's exercise of discretion upon remand.
The judgment is reversed and remanded with directions to the trial court to decide, at a hearing at which Quintana has the right to be present with counsel, whether it will exercise its discretion and strike the five-year enhancement of section 667, subdivision (a). If the court decides to strike the enhancement, it shall resentence Quintana and amend the abstract of judgment accordingly. If it decides not to strike the enhancement, Quintana's original sentence shall remain in effect.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
TANGEMAN, J.
Bruce A. Young, Judge
Superior Court County of Ventura
Richard B. Lennon, 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, Acting Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.