Opinion
A152030
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. PEDRO LUIS RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC074586A)
This matter returns to us after we vacated one of the convictions of defendant Pedro Luis Rodriguez and remanded the case to the trial court for resentencing. (People v. Rodriguez, case No. A134782, filed Nov. 3, 2014.) Defendant again appeals, contending the trial court misunderstood the scope of its discretion when it resentenced him. We shall affirm the judgment.
I. BACKGROUND
A. The Convictions and Original Sentence
Defendant was convicted of stalking (Pen. Code, § 646.9, subd. (a); count 1); stalking while under a restraining order (§ 646.9, subd. (b); count 2); identity theft (§ 530.5, subd. (a); count 4); computer fraud (§ 502, subd. (c)(1); count 5); electronic data theft (§ 502, subd. (c)(2); count 6); destroying computer data or programs (§ 502, subd. (c)(4); count 8); intercepting electronic communications (§ 632.5, subd. (a); count 9); misdemeanor domestic battery (§ 243, subd. (e)(1); count 10); and misdemeanor making threatening or annoying telephone calls (§ 653m, subd. (a); count 11).
All statutory references are to the Penal Code.
Defendant's convictions were based on a course of conduct toward his former girlfriend that took place between late October 2010 and March 2011, which is described in detail in our November 3, 2014 opinion in defendant's original appeal. In brief, defendant called the victim repeatedly, up to 20 times a day, and sent repeated text messages; continued calling her after she changed her number; used a "spoof card" to make it appear the calls were coming from members of her family; knocked on her apartment door or windows, sometimes in the middle of the night; tried to break into her apartment; and sent emails to her attorney indicating he had been following her. During this period, the victim learned that, without her knowledge, her cell phone service had been suspended and her debit card cancelled; the passwords of her email, Facebook, and Verizon wireless on-line accounts had been changed; and her voice mail box and cell phone pin numbers had been changed. Defendant was subject to a restraining order during part of this time.
At the original sentencing hearing, the court explained the reasons for its sentencing choices: "Mr. Rodriguez, to be quite honest, your conduct was appalling in my view. [¶] I think that the evidence was overwhelming of your guilt. I think that what you did was turn [the victim's] life into a living hell for those many months and it [has] effects that she still is experiencing today. [¶] This is not a probationary sentence for a number of reasons, including the vulnerability of the victim, the fact that you were an active participant in the crime, as well as the unbelievable level of criminal sophistication in the commission of these crimes. [¶] So the issue then is: What is the sentence going to be? There are a number of aggravating factors, Mr. Rodriguez, that the Court takes into account in deciding which term to choose. [¶] And what I am going to consider in imposing the upper term and giving you consecutive sentences is the fact that you show no remorse, you were on probation at the time, you inflicted emotional injury on her, I think you remain a danger to her and others, the crimes were numerous and of increasing seriousness, and your prior—you had prior unsuccessful performance on probation." The court imposed the upper term of four years for count 2, stalking while under a restraining order, with consecutive eight-months terms for simple stalking (count 1), identity theft (count 4) and intercepting electronic communications (count 9). The sentences on the other felony convictions were stayed pursuant to section 654.
B. The Appeal
In the first appeal, a different panel of this court concluded defendant was improperly convicted of both simple stalking (§ 946.9, subd. (a), count 1) and stalking while under a restraining order (§ 646.9, subd. (b), count 2) because they were based on a single overlapping course of conduct and constituted but a single substantive offense. We made the following disposition: "The judgment is modified to vacate the conviction on stalking (count 1), and the matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation."
C. Resentencing Hearing
Defendant represented himself at the resentencing hearing. Before the hearing, defendant submitted an "In Limine Motion Objection to Re[sen]tencing under Denial of 14th Amendment Procedural Due Process," in which he argued he should be able to present mitigating evidence, including exculpatory evidence, at the resentencing hearing. He also filed a "Motion to Arrest Judgment/Motion to Vacate Judgment," in which he mounted a number of challenges to his convictions.
At the hearing, the trial court told defendant, "In my view, the Court of [A]ppeal remanded the case back to this court for the specific and limited purpose of vacating the conviction as to one of the counts and correcting the abstract. There is nothing in the opinion that suggests that you're entitled to a full reopening of the sentencing process. [¶] So, that's my interpretation of the Court of Appeal opinion."
The prosecutor argued the trial court had no jurisdiction to vacate the judgment or relitigate any issues regarding the Fourth Amendment or the Fourteenth Amendment, or to do anything other than what the Court of Appeal had ordered. She argued that the court, "essentially, has no discretion," and that it was inappropriate to subpoena witnesses to provide information about mitigating or aggravating factors. The trial court agreed.
The trial court went on to say, "I believe that I have the authority simply to follow the Court of Appeal's opinion, and vacate the sentence as to Count 1, resentence the defendant on that ground." The court ruled, "In accordance with the instructions by the Court of Appeal, and that is with regards to Count 1, the simple stalking conviction, which was an eight-month consecutive sentence, is vacated, in accordance with the Court of Appeal's decision. [¶] . . . [¶] And the remainder of the sentence is the same, except the total. Instead of six years, it is now five years, four months. The rest of the sentence remains the same, for the same reasons it was back in April of 2012."
II. DISCUSSION
Defendant's sole contention on appeal is that the trial court misunderstood the extent of its jurisdiction when it resentenced him. When we remand a case for resentencing after reversing one or more subordinate felony counts, "the trial court has jurisdiction to modify every aspect of a defendant's sentence on the counts that were affirmed, including the term imposed as the principal term." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 (Burbine); accord People v. Navarro (2007) 40 Cal.4th 668, 681.) However, the aggregate sentence may not be increased on remand. (Burbine, at p. 1259.)
Defendant argues the trial court erroneously took the view that it lacked jurisdiction to do anything other than strike the eight-month term for simple stalking. According to defendant, he was therefore deprived of his rights to a full new sentencing hearing, including the right to present evidence in mitigation, and to the informed exercise of the trial court's discretion.
We reject this contention. Defendant had the opportunity to present mitigating evidence when he was originally sentenced. At the original sentencing hearing, the trial court set forth clearly the reasons it selected the upper term for the primary offense and consecutive terms for the subordinate convictions: the serious nature of defendant's conduct, his lack of remorse, his dangerousness, the effects on the victim's life, and the presence of other aggravating factors. The same judge presided over the resentencing hearing. In resentencing defendant, the court specifically stated that, except for the eight months of the sentence attributable to the vacated count, the rest of the sentence remained the same "for the same reasons it was back in April of 2012."
We recognize that parts of the colloquy at the resentencing hearing suggest the court thought it was authorized only to reduce defendant's sentence by those eight months. But, even assuming the court misunderstood the scope of its authority on remand, we see no possibility of prejudice. When a sentencing court is unaware of the scope of its discretionary powers, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' " (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) That standard is met here. We vacated the conviction for simple stalking (§ 646.9, subd. (a)) on the ground that it was based on the same conduct as the conviction for stalking in violation of a restraining order (§ 646.9, subd. (b)), which is a penalty provision. Thus, precisely the same conduct was before the trial court in the first and second sentencing hearings. The court's original explanation of the reasons for the sentence was unambiguous. In resentencing, the trial court reaffirmed its reliance on the same reasons. On this record, it is clear the court would have exercised its discretion in the same manner on resentencing even if it had taken a different view of the scope of its discretion.
At oral argument, defendant contended that, because he was not permitted to make an offer of proof, there is no basis to conclude his proposed evidence would not have swayed the trial court to exercise its discretion differently. We disagree. Defendant has drawn our attention to no cases holding that he had a right to question witnesses at a resentencing hearing after a remand; indeed, he conceded at oral argument that he did not. At the hearing, defendant told the court he wished to present Sherman Kwok, an agent with the Federal Bureau of Investigation who testified at his trial, as a witness in mitigation. He said Kwok and the Regional Forensic Crime Laboratory possessed evidence that was not introduced at trial. It appears from this statement and from defendant's "Motion to Arrest Judgment" that Kwok's proposed testimony would concern not circumstances in mitigation (see Cal. Rules of Court, rule 4.423), but the propriety of defendant's convictions—convictions that were affirmed on appeal. (See Burbine, supra, 106 Cal.App.4th at p. 1265 [" '[o]pinions as to the innocence of a defendant after a jury has already reached a guilty verdict are not a factor in mitigation.' "].) We are satisfied that the trial court's refusal to entertain such evidence did not prejudice defendant, especially in light of the trial court's clearly articulated reasons for imposing the maximum felony sentence for the exact same conduct during defendant's original sentencing hearing.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Tucher, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Lee, J.
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------