Opinion
C084940
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. GERALD SPENCE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F07031)
A jury convicted defendant Gerald Spence of torture, infliction of corporal injury on a cohabitant, assault with a deadly weapon, and making a criminal threat, and the trial court found true allegations that he had two prior serious felony convictions. The trial court sentenced him to a determinate term of 11 years, followed by a consecutive indeterminate term of 50 years to life. This court affirmed the judgment of the trial court in his first appeal. (People v. Spence (Oct. 7, 2016, C074941) [nonpub. opn.].) The trial court subsequently set the matter for resentencing on its own motion because it had not imposed sentence on certain counts before staying them. At the resentencing hearing, the trial court imposed sentence on those counts and then stayed them.
Defendant now contends (1) the trial court erred by not allowing him to speak at the resentencing hearing, (2) remand is necessary because the trial court failed to recalculate his actual custody credit at the resentencing hearing, and (3) the one-year weapon enhancement imposed on count four at the resentencing hearing must be stricken.
We will strike the weapon enhancement, remand the matter for recalculation of actual custody credit, and otherwise affirm the judgment.
BACKGROUND
We treated defendant's request to take judicial notice of the appellate record in case No. C074941 as a motion to incorporate it by reference and granted the request. The jury found defendant guilty of the following: torture (Pen. Code, § 206—count one) with a special finding of personal use of a deadly weapon (§ 12022, subd. (b)(1)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)—count two) with special findings of personal use of a deadly weapon (§ 12022, subd. (b)(1)) and infliction of great bodily injury (§ 12022.7, subd. (e)); assault with a deadly weapon (§ 245, subd. (a)(1)—count three) with a special finding of infliction of great bodily injury (§ 12022.7, subd. (e)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)—count four); and making a criminal threat (§ 422—count five). In a bifurcated proceeding, the trial court found true the allegations that defendant had two prior convictions for serious felonies. (§ 667, subd. (a).)
Undesignated statutory references are to the Penal Code. --------
The trial court sentenced defendant to consecutive indeterminate terms of 25 years to life under the "Three Strikes" law for counts one (torture) and five (criminal threat). The trial court also imposed two consecutive determinate terms of five years for prior serious felony convictions (§ 667, subd. (a)) and a consecutive one-year term for personal use of a deadly weapon (§ 12022, subd. (b)(1)). The trial court did not orally impose sentence or stay sentence on counts two, three, and four. However, the abstract of judgment reflects that the sentence on each of those counts was stayed pursuant to section 654. The aggregate sentence was composed of a determinate term of 11 years, followed by a consecutive indeterminate term of 50 years to life. Defendant timely appealed from the judgment, and in October 2016, this court issued an unpublished opinion affirming the judgment. (People v. Spence, supra, C074941.)
The trial court subsequently set the matter for resentencing on the trial court's own motion. The trial court determined that resentencing was necessary because it had imposed an unauthorized sentence by failing to impose sentence on counts two, three, and four before staying sentence pursuant to section 654. Prior to the resentencing hearing, the clerk of the trial court rejected "Defendant's Motion to Renew His Post-Trial Motions for New Trial and Mitigation Hearing" on the ground the document constituted an unauthorized ex parte communication.
At the resentencing hearing, the trial court did not ask defendant whether he had any legal cause as to why judgment should not be pronounced against him. Nor did the trial court ask defendant whether he would like to make a personal statement in mitigation of punishment. Neither the prosecutor nor defense counsel offered any argument on the appropriate sentence. The trial court modified defendant's sentence by imposing terms for counts two, three, and four. On count two, the trial court imposed 25 years to life, plus one year for the weapon enhancement (§ 12022, subd. (b)(1)), three years for the great bodily injury enhancement (§ 12022.7, subd. (e)), and 10 years total for the two prior serious felony conviction enhancements (§ 667, subd. (a)). On count three, the trial court imposed 25 years to life, plus three years for the great bodily injury enhancement (§ 12022.7, subd. (e)), and 10 years total for the two prior serious felony conviction enhancements (§ 667, subd. (a)). And on count four, the trial court sentenced defendant to 25 years to life, plus one year for the weapon enhancement (§ 12022, subd. (b)(1)), and 10 years total for the two prior serious felony conviction enhancements (§ 667, subd. (a)). The trial court stayed execution of sentence on each of these counts pursuant to section 654. The trial court then stated that all other aspects of defendant's sentence remain as previously imposed.
Following the imposition of sentence, defendant said, "Excuse me, your Honor. Can I be heard? [¶] No? The trial court did not respond and the hearing concluded.
DISCUSSION
I
Defendant contends the trial court violated his statutory rights and his constitutional right to due process of law by not allowing him to speak at the resentencing hearing. According to defendant, he was entitled to make a statement in mitigation of punishment. Anticipating that he may have forfeited his claim, he alternatively argues he received ineffective assistance of counsel.
Section 1200 provides in pertinent part: "When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and . . . the verdict, . . . and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." "This inquiry is called the 'allocution.' " (People v. Evans (2008) 44 Cal.4th 590, 592 (Evans).) "In legal parlance, the term 'allocution' has traditionally meant the trial court's inquiry of a defendant as to whether there is any reason why judgment should not be pronounced. [Citations.] In recent years, however, the word 'allocution' has often been used for a mitigating statement made by a defendant in response to the court's inquiry. [Citation.]" (Id. at p. 592, fn. 2, original italics.)
The California Supreme Court has held that in response to the trial court's allocution, a defendant not only has the right to state reasons why judgment should not be pronounced at all (under section 1200), but also the right to offer a personal statement in mitigation of punishment (under section 1204). (Evans, supra, 44 Cal.4th at pp. 597-598.) Section 1204 describes the manner in which evidence in aggravation or mitigation shall be presented to the trial court. To be heard in mitigation, a defendant must be placed under oath and subject to cross-examination. (Evans, supra, at p. 598.) There is no federal due process right to address the court at sentencing other than under oath and subject to cross-examination. (Id. at p. 600.)
In Evans, after discussing the appropriate sentence, defense counsel stated, " 'Submitted.' " (Evans, supra, 44 Cal.4th at p. 593.) During the pronouncement of judgment, the defendant asked, " 'Can I speak, your honor?' " The trial court replied, " 'No.' " (Ibid.) The Supreme Court noted, "Defense counsel made no attempt to call defendant to testify, and defendant himself did not ask to do so." (Id. at p. 600.) It concluded, "Under these circumstances, there was a forfeiture of defendant's right to testify in mitigation of punishment." (Ibid.) The court added: "It was only after the trial court had denied probation and was in the process of sentencing defendant to prison that defendant asked, 'Can I speak, your honor?' Assuming for the sake of argument that this may be construed as a request to testify in mitigation of punishment, it came too late; it should have been made before the court started to pronounce defendant's sentence. [Citations.]" (Ibid.)
Here, assuming defendant had a right to make a statement in mitigation of punishment at the resentencing hearing, and further assuming his remarks following the pronouncement of sentence constituted a request to testify in mitigation, defendant forfeited his right to testify. As in Evans, defendant's request came too late.
But even if the trial court had erred, such an error would be harmless. The failure to afford the right of allocution is not fatal where, as here, defendant is present and represented by counsel and no prejudice appears. (People v. Thomas (1955) 45 Cal.2d 433, 438; see also People v. Maese (1980) 105 Cal.App.3d 710, 724; People v. Ornelas (2005) 134 Cal.App.4th 485, 488-489.) Under the circumstances, we apply the test of harmless error articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Cross (1963) 213 Cal.App.2d 678, 684 [counsel denied permission to make supplemental statement on the defendant's behalf; Watson test of harmless error applies].) Reversal is required only if it is reasonably probable that a result more favorable to defendant would have occurred had he been permitted to make a statement in mitigation. (Watson, supra, at p. 836.)
Defendant claims he suffered prejudice, but he does not explain how. In view of the record, we find no prejudicial error. At the original sentencing hearing, defendant was represented by counsel and given the opportunity to make a statement in mitigation of punishment. After the matter was submitted on the issue of sentencing, the trial court imposed consecutive indeterminate terms of 25 years to life for counts one and five (plus determinate terms for the enhancements) but did not orally impose sentence on counts two, three, and four. At the resentencing hearing, defendant was represented by counsel. Prior to the pronouncement of sentence, neither defendant nor defense counsel requested permission to assert reasons for a mitigated sentence. The trial court imposed indeterminate terms of 25 years to life on counts two, three, and four (plus determinate terms for the enhancements) and stayed sentence on those counts pursuant to section 654. The trial court then stated that all other aspects of defendant's sentence remain as previously imposed. Thereafter, defendant asked the trial court if he could be heard. The trial court did not respond and the hearing concluded.
On appeal, defendant does not specify what he intended to say at resentencing. He makes no showing that he would have offered grounds for a mitigated sentence that would have affected the trial court's sentencing decision. Accordingly, because defendant provides no basis to conclude that he would receive a more lenient sentence at a new sentencing hearing, any purported error was harmless. Because any error did not prejudice defendant, we need not consider his alternative argument that trial counsel was ineffective. (People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31 [a defendant claiming ineffective assistance of counsel must establish both deficient performance and prejudice].)
II
Defendant next contends the case needs to be remanded so the trial court can recalculate his presentence credit. The People agree and we do too.
When, as here, a defendant is resentenced following the initial sentencing hearing and a prison commitment, the trial court is required under section 2900.1 to recalculate his actual custody credit as of the date of resentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 23, 40-41.) Because the trial court did not do so, we will remand this matter for recalculation of defendant's actual custody credit.
III
In addition, defendant claims the one-year weapon enhancement (§ 12022, subd. (b)(1)) imposed on count four must be stricken. Again the People agree and so do we.
At resentencing, the trial court imposed a consecutive one-year sentence on count four for a weapon enhancement pursuant to section 12022, subdivision (b)(1). But there was no true finding on the enhancement as to count four. The record discloses that the enhancement was dismissed. Accordingly, the enhancement must be stricken.
DISPOSITION
The judgment is modified to strike the one-year weapon enhancement imposed on count four pursuant to section 12022, subdivision (b)(1), and the matter is remanded to the trial court with instructions to recalculate defendant's actual custody credit as of the date of resentencing. The judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment reflecting the modified judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
MAURO, J. We concur: ROBIE, Acting P. J. HOCH, J.