Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F00349
ROBIE, J.
A jury found defendant Donovan Russell Waddams guilty of one felony count of making a criminal threat against his wife and one felony count of maliciously disabling a telephone line. On appeal, this court held that the trial court erred in calculating his sentence, remanded the case for resentencing, but affirmed the judgment.
At his resentencing hearing, defendant filed a motion for an evidentiary hearing whereby he sought to introduce new evidence that he alleged would cast doubt on the validity of his conviction for maliciously disabling a telephone line. The trial court denied defendant’s motion and resentenced him.
Defendant again appeals, contending the trial court erred by failing to grant his motion for an evidentiary hearing because: 1) the evidence submitted at an evidentiary hearing would have served in mitigation of the sentence; and 2) to the extent that the motion was a motion for a new trial, the motion was timely and properly before the court.
On review, we find that the trial court did not err by denying defendant’s motion for an evidentiary hearing. Therefore, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
During an altercation in December 2003 at the Waddams’ home, defendant’s wife, Lori, alleged that defendant disconnected the telephone wires to the house to prevent her from calling the police. Lori’s friend, who was present, dialed 911 from her cell phone. Officer Charles Esty arrived at the Waddams’ residence, examined the phone box, and reported that the wires had been pulled out from the junction box and disconnected.
A jury found defendant guilty of making criminal threats and maliciously obstructing a telephone line. Defendant waived a jury trial on various prior conviction allegations and the trial court found that defendant had two previous serious felony convictions. The trial court struck one of defendant’s prior felony convictions and sentenced him to 18 years in prison.
Defendant appealed from the judgment. This court remanded the case to the trial court for resentencing. In all other respects, the judgment was affirmed.
At the resentencing hearing, defendant filed a motion for an evidentiary hearing, alleging that he had new evidence that would undermine the validity of his conviction on the charge of maliciously disabling a telephone line. Defendant submitted several documents and service reports from the telephone company that he alleges show a history of problems with the phone line. Defendant contends that these documents are proof he did not disable the telephone line. Defendant also submitted several photographs of the telephone junction box at a time when the phone was in good working order. Defendant alleges that the photographs “depict[] the disorderly wiring in the Waddams’ telephone junction box” and “support [defendant]’s claim that [Officer Esty’s testimony] that wires had been cut or pulled out of the box could have been easily mistaken.”
Defendant’s counsel stated that he wanted the court to consider the new evidence for the purpose of setting aside the verdict on the telephone disabling conviction, granting a motion for a new trial, or as mitigation in the court’s resentencing. The trial court denied defendant’s motion and resentenced him to an aggregate prison term of 15 years 4 months.
DISCUSSION
I
The Trial Court Did Not Err In Denying Defendant’s Motion For An Evidentiary Hearing
Defendant alleges that the trial court erred in denying his motion because it effectively denied him the right to submit evidence in mitigation of his sentence. Rule 4.433(c)(1) of the California Rules of Court provides that “[i]f a sentence of imprisonment is to be imposed, . . . the sentencing judge must . . . [h]ear evidence in aggravation and mitigation.” Such evidence may include “all reliable information ‘“relative to the circumstances of the crime and to the convicted person’s life and characteristics, ”’” (People v. Zikorus (1983) 150 Cal. App.3d. 324, 331) as well as “any pertinent circumstances which have arisen since the prior sentence was imposed” (Dix v. Superior Court (1991) 53 Cal.3d. 442, 460). Defendant claims that the documents and photographs that he offered as evidence clearly fall into the class of evidence that must be considered in mitigation of his sentence. Defendant further argues that “the exhibits [submitted to the court] did not constitute all of the new evidence that [he] sought to put before the court” and that he wanted the opportunity to submit live testimony from phone company representatives in order to authenticate and explain the phone company’s documents. Defendant concludes that by refusing to hold an evidentiary hearing, the trial court denied him the right to submit evidence in mitigation of his sentence.
It is well settled that it is the nondiscretionary duty of a sentencing judge to hear “evidence in . . . mitigation” of the sentence. (Cal. Rules of Court, rule 4.433(c)(1).) There is no case law or statute, however, that compels the court to hold a separate evidentiary hearing in order to consider such evidence and indeed defendant offers no such authority. In fact, rule 4.433(d) of the California Rules of Court provides that “[a]ll these matters shall be heard and determined at a single hearing unless the sentencing judge otherwise orders in the interests of justice.” This rule applies, in part, to any “evidence in aggravation or mitigation” of the sentence. Here, defendant offers no evidence that would allow this court to conclude that the trial court abused its discretion by denying his motion for a separate evidentiary hearing. Accordingly, the trial court did not err by denying defendant’s motion for a separate evidentiary hearing.
II
The Trial Court Did Consider The Evidence Defendant Submitted At The Resentencing Hearing
To the extent that defendant submitted evidence in mitigation of his sentence at the resentencing hearing, the trial court properly considered it. Prior to resentencing defendant, the sentencing judge stated, “[t]his is a hearing on judgment and sentence. [¶] The Court would note in that regard that I have previously read the probation report in this matter and the other documents that have been filed.” The “other documents” to which the court referred presumably included defendant’s new evidence that was submitted earlier in the hearing. Defendant offers no showing to the contrary. Thus, the record demonstrates that the sentencing judge read and considered the “new evidence” submitted by defendant at the resentencing hearing. Defendant’s claims to the contrary are conclusory and not supported by the record.
III
The Trial Court Did Not Err In Refusing To Consider Defendant’s Motion For An Evidentiary Hearing To The Extent That It Constituted A Motion For A New Trial
Defendant argues that the court erred in refusing to grant his motion for an evidentiary hearing to the extent that it constituted a motion for a new trial. At the resentencing hearing, the judge denied defendant’s motion for a new trial because the issue was beyond the scope of the hearing. Defendant contends the trial judge did, in fact, have the authority to consider such a motion, and erred by declining to do so.
Penal Code Section 1182 provides that “[t]he application for a new trial must be made and determined before judgment, [or] the making of an order granting probation, . . . whichever first occurs.” (See People v. Hales (1966) 244 Cal. App.2d. 507, 511.) Defendant concedes that there is a well documented body of case law that holds when an appellate court affirms a conviction and orders a remand for a limited purpose such as resentencing, the decision does not otherwise reverse the judgment and the trial court does not regain jurisdiction to entertain a motion for a new trial. Defendant attempts to counter these authorities by noting that “the California Supreme Court has not spoken directly on this issue and there is authority supporting a contrary interpretation of [Penal Code] section 1182.” Specifically, defendant cites a line of cases that hold “[w]hen a judgment has been vacated and remanded for re-sentencing, the defendant is entitled to all the rights and procedures which would apply to an original sentencing hearing.” (See Dix v. Superior Court, supra, 53 Cal.3d. at p. 460; People v. Flores (1988) 198 Cal. App.3d. 1156, 1161.) Defendant argues that these rights “presumably include the right to bring a new trial motion.”
The authorities on which defendant relies are not on point because they deal with instances where the entire judgment was vacated. In contrast, the present case deals solely with the vacation of an original sentence, not the vacation of judgment. We therefore reject defendant’s reasoning. Instead, we find People v. Pineda (1967) 253 Cal. App.2d. 443 to be dispositive. Pineda held that “the judgment in a criminal action is a record of the adjudication of guilt and the determination of the penalty.” (Id. at p. 451.) “[Furthermore, ] an appellate court has power and authority to open the penalty aspect of the judgment without affecting the finality of the adjudication of guilt.” (Ibid.) Therefore, “[t]he affirmance of the issue of guilt on the first appeal precludes subsequent review by the trial court on a motion for new trial.” (Id. at p. 453.)
In defendant’s original appeal to this court, we found that the trial court erred in calculating his sentence. Consequently, we vacated the sentence and affirmed the judgment in all other respects. In its disposition, this court specifically upheld the judgment against defendant and remanded the case for the sole purpose of resentencing. Accordingly, the trial court was correct when it stated that it did not have the authority to grant a new trial.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., BUTZ , J.