Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FSB027969 Arthur Harrison, Judge.
Philip M. Brooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
A jury found Clarence Roberts, Jr., defendant and appellant (hereafter defendant), guilty of attempted robbery (Pen. Code, §§ 211 & 664) and robbery (§ 211), and after defendant waived his right to a jury, the trial court found true the special allegations that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced defendant to serve a determinate term of five years in state prison on the section 667, subdivision (a)(1) prior conviction, and in accordance with the mandate of the three strikes law, imposed terms of 25 years to life in state prison on count 2 and count 3, to be served consecutively.
All further statutory references are to the Penal Code unless indicated otherwise.
Defendant appealed and we agreed with his claim that the trial court erred when it admitted into evidence the prior testimony of the attempted robbery victim. As a result of that error, we reversed the attempted robbery conviction and remanded the matter to the trial court for further proceedings. On remand, the district attorney decided not to try defendant again on the attempted robbery charge, and as a result the trial court dismissed that charge. The trial court then resentenced defendant on the robbery conviction to an indeterminate term of 25 years to life in prison, and a consecutive determinate term of five years on a prior conviction enhancement. Defendant was not present at the hearing at which the trial court dismissed the attempted robbery charge and imposed the sentence. His absence from that hearing is one of the two issues defendant raises in this appeal. Defendant’s other claim is that the trial court was required to obtain an updated, or what defendant refers to as a supplemental, probation report before sentencing defendant on remand.
We disagree with defendant’s claims, for reasons explained below. Therefore we will affirm.
DISCUSSION
It is undisputed that defendant was not present at the hearing on remand, and that his attorney purported to waive his presence. The Attorney General contends that defendant’s presence was not required because the trial court did not resentence defendant but instead performed what the Attorney General describes as the ministerial act of reimposing the original sentence imposed on the robbery conviction. The Attorney General bases his argument on the premise that this court’s disposition in the prior appeal remanded the matter “for the limited purpose of determining whether the prosecutor would elect to retry count two [the attempted robbery charge]. The remand did not order resentencing and did not confer upon the trial court the discretion to reconsider [defendant’s] sentence on count three [the robbery conviction].” We do not share the Attorney General’s view regarding the nature of the remand, but nevertheless agree that defendant’s presence at the hearing was not required.
“A defendant . . . has a constitutional right to be present at all critical stages of the criminal prosecution, i.e., ‘all stages of the trial where his absence might frustrate the fairness of the proceedings’ [citation], or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’ [citation].” (People v. Rodriguez (1998) 17 Cal.4th 253, 260 (Rodriguez), quoting Faretta v. California (1975) 422 U.S. 806, 819, fn. 15 and Snyder v. Massachusetts (1934) 291 U.S. 97, 105-106, respectively.)
Whether defendant’s presence was required depends at least initially on the nature of the proceedings on remand. The disposition in the prior appeal states: “Defendant’s conviction on count 2 for attempted robbery is reversed and the matter remanded to the trial court for further proceedings. The judgment is affirmed in all other respects.” The further proceedings contemplated by that disposition are a retrial on the attempted robbery charge if the district attorney so elects, and sentencing on both charges after that trial. If the district attorney elects not to try defendant again on the reversed charge, then our disposition anticipated that the trial court would impose or reinstate the three strikes sentence previously imposed on the robbery conviction that we affirmed on appeal. The trial court’s action in this latter event is dictated by the mandatory provisions of the three strikes sentencing scheme, as we now explain.
When the sentence originally imposed is an aggregate term under the determinate sentencing law (DSL; see § 1170), a trial court must conduct a new sentencing hearing following remand after reversal of one or more convictions on appeal because an aggregate sentence “cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence.” (People v. Savala (1983) 147 Cal.App.3d 63, 68-69; see also People v. Martinez (1986) 188 Cal.App.3d 19, 26-27.) The rationale for the noted principle is that the DSL is intended to tailor sentences to the individual offender in order to provide society with maximum protection. To achieve that end, and fit the punishment to the offender, trial courts must be “afforded maximum leeway” or discretion, in making sentencing decisions. (People v. Savala, supra, at p. 69, citing People v. Williams (1981) 30 Cal.3d 470, 482.) Because discretion is at the heart of the DSL scheme, a trial court must exercise that discretion in imposing a determinate sentence on remand following reversal on appeal of one or more counts. That exercise of judicial discretion should occur at a hearing at which the defendant is present because the defendant’s absence might frustrate the fairness of the proceeding, or his presence has a relation to the fullness of his participation in the sentencing process. (Rodriguez, supra, 17 Cal.4th at p. 260.)
In contrast, defendant’s sentence is dictated by the three strikes law set out in sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and by section 667, subdivision (a). As applied to defendant, the three strikes law mandates an indeterminate prison term of 25 years to life on the robbery conviction because defendant has two prior strike convictions. (§§ 667, subd. (e)(2)(ii), 1170.12, subd. (c)(2)(A)(ii).) The only discretion a trial court has in sentencing a three strikes defendant is to strike one or more prior convictions in the interests of justice. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).) The discretion the Supreme Court recognized in Romero is extremely limited, and may only properly be exercised in the unusual case where, “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (See People v. Williams (1998) 17 Cal.4th 148, 161.)
Like the three strikes sentence, the enhancement under section 667, subdivision (a)(1) is also mandatory. That section states, in pertinent part: “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (§ 667, subd. (a)(1).) Section 1385, subdivision (b) precludes a judge from striking any prior serious felony “for purposes of enhancement of a sentence under Section 667.” (§ 1385, subd. (b).) The trial court had no discretion with respect to that enhancement and could do nothing other than impose the additional, and consecutive, five-year prison term.
In contrast with the DSL, the sentencing scheme at issue here is mandatory, and does not involve an exercise of discretion by the trial court or allow the trial court to reconsider the sentence originally imposed. Defendant’s presence was not required at the hearing at which the trial court imposed or reinstated that mandatory sentence because the trial court’s sentencing authority on remand did not involve an exercise of discretion. Instead, the trial court was limited to confirming, reinstating, or reimposing the mandatory sentence previously imposed under the three strikes law, and the mandatory habitual criminal enhancement. Defendant cannot aid the process or participate in the sentence selection and therefore the proceeding on remand cannot be considered a critical stage of the prosecution at which defendant’s presence is required. (Rodriguez, supra, 17 Cal.4th at p. 260.)
Moreover, we must also reject defendant’s claim that his presence was required so that he could make a motion on remand under Romero to strike one or more of his prior felony convictions. Defendant made a so-called Romero motion at his original sentencing hearing, and the trial court denied that request. Defendant does not have the right to renew that motion on remand. In re Cortez (1971) 6 Cal.3d 78, which defendant cites to support his claim, is a case in which the defendant was denied the opportunity to challenge a sentence enhancement imposed under a statute the California Supreme Court ultimately held unconstitutional. Defendant in this case had the opportunity at his original sentencing hearing to ask the trial court to exercise discretion under section 1385 and strike one of defendant’s prior serious felony convictions. The trial court denied that request. Our reversal of the attempted robbery conviction does not afford defendant a second opportunity to request sentencing lenience. Nothing about defendant’s criminal history or the current robbery conviction changed while the matter was pending on appeal. Therefore, no basis exists for the trial court to reconsider its previous denial of defendant’s so-called Romero motion.
Under the circumstances presented here, the trial court could do nothing on remand other than impose the previously imposed three strikes sentence and the five-year sentence enhancement. Whether viewed as a ministerial act, or resentencing, defendant’s absence from the proceeding at which the trial court completed that act did not “frustrate the fairness of the proceedings” (Faretta v. California, supra, 422 U.S. at p. 819, fn. 15), or deny defendant his full opportunity to be heard (Snyder v. Massachusetts, supra, 291 U.S. at pp. 105-106). Alternatively, if we were to conclude otherwise, defendant’s absence from that proceeding was harmless beyond a reasonable doubt given the mandatory three strikes sentence and sentence enhancement at issue in this case.
For these same reasons, we also reject defendant’s assertion that the trial court was required to obtain a supplemental probation report before sentencing defendant on remand. Defendant’s sentence on the affirmed count is mandatory, as previously discussed. Consequently, a supplemental probation report would serve no purpose. The cases defendant cites to support his claim that a supplemental probation report is required do not involve mandatory sentences or enhancements imposed under the three strikes law or under section 667, subdivision (a), or are otherwise distinguishable. (See People v. Rojas (1962) 57 Cal.2d 676 [conviction for receiving stolen property reduced on appeal to attempt to receive stolen property and remanded for resentencing]; People v. Mariano (1983) 144 Cal.App.3d 814 [crime reduced on appeal from felony to misdemeanor and remanded for resentencing]; Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742 [original sentence vacated on appeal and remanded for resentencing]; People v. Cooper (1984) 153 Cal.App.3d 480; People v. Brady (1984) 162 Cal.App.3d 1; People v. Smith (1985) 166 Cal.App.3d 1003; and People v. Warren (1986) 179 Cal.App.3d 676, all abrogated by People v. Bullock (1994) 26 Cal.App.4th 985; see also People v. Foley (1985) 170 Cal.App.3d 1039 [defendant requested supplemental probation report before resentencing on remand].) A supplemental probation report was not required in this case because defendant’s sentence was mandatory.
For each of the reasons explained above, we reject defendant’s claims on appeal.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.