Opinion
E079874
09-29-2023
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE WOODS, Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Warren J. Williams and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB11007 Steve Malone, Judge. Reversed and remanded with directions.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Warren J. Williams and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
At a hearing pursuant to former Penal Code section 1171.1, the court stayed defendant and appellant David Lee Woods's sentence on both his five-year prior serious felony enhancements (§ 667, subd. (a)(1)) and his prior prison term enhancement (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code. "Senate Bill No. 483 added section 1171.1 to the Penal Code, which was subsequently renumbered without substantive change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 2022.)" (People v. Monroe (2022) 85 Cal.App.5th 393, 399 (Monroe).)
On appeal, defendant contends the court erred in holding the hearing in defendant's absence, in failing to strike the enhancements, in failing to conduct a full resentencing hearing, and in failing to update his custody credits. Defendant additionally maintains the abstract of judgment contains clerical errors. The People agree. We reverse and remand the matter for a full resentencing hearing.
We granted defendant's request that we take judicial notice of the record in defendant's appeal from the original judgment. (People v. Woods (Feb. 18, 2000, E024788) [nonpub. opn.]; Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).) The facts are irrelevant to the issues raised on appeal.
On March 12, 1999, a jury convicted defendant of carjacking (§ 215, subd. (a), count 1) and robbery (§ 211, count 2). The jury additionally found true allegations that defendant personally used a firearm (§§ 1203.06, subd. (a)(1) &12022.5, subd. (a)), and had suffered two prior serious felony convictions (§ 667, subd. (a)(1)), two prior strike convictions (§§ 1170.12, subds. (a)-(d) &667, subds. (b)-(i)), and one prior prison term (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate term of 48 years to life in state prison. (Woods, supra, E024788.)
Defendant appealed. This court modified the judgment by staying imposition of the concurrent term on the count 2 offense. In all other respects, this court affirmed the judgment. (Woods, supra, E024788.)
On April 21, 2022, defendant filed a motion to strike his section 667.5, subdivision (b) one-year prior prison term enhancement pursuant to former section 1171.1. In an unreported hearing on August 3, 2022, at which defendant was not present but was represented by counsel, the court stayed defendant's sentence on both the five-year prior serious felony enhancements (§ 667, subd. (a)(1)) and the prior prison term enhancement (§ 667.5, subd. (b)). Thus, the court resentenced defendant to an aggregate term of imprisonment of 37 years to life.
The court indicated its action had been initiated pursuant to a notice received from the Department of Corrections; however, the clerk of the court has filed an affidavit indicating it is unable to produce any such document.
II. DISCUSSION
Defendant contends the court erred in holding the hearing in defendant's absence, in failing to strike the enhancements, in failing to conduct a full resentencing hearing, and in failing to update his custody credits. Defendant additionally maintains the abstract of judgment contains clerical errors. The People agree. We reverse and remand the matter for a full resentencing hearing.
"Section 1172.75, subdivision (a) provides that '[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.' [Citation.] Once the Department of Corrections and Rehabilitation identifies those persons 'currently serving a term for a judgment that includes an enhancement described in subdivision (a)' to the sentencing court, 'the court shall recall the sentence and resentence the defendant.' [Citation.]" (Monroe, supra, 85 Cal.App.5th at p. 399.)
"In resentencing, '[t]he court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.' [Citation.] 'The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.' [Citation.]" (Monroe, supra, 85 Cal.App.5th at p. 399.) "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (Id. at p. 402 [reversing and remanding for resentencing where court thought it was without jurisdiction to strike firearm enhancements]; People v. Hubbard (2018) 27 Cal.App.5th 9, 12-13 [full resentencing includes jurisdiction to rule on a motion to strike prior conviction findings].)
"' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record."' [Citation.]" (People v. Fredrickson (2023) 90 Cal.App.5th 984, 988; accord People v. Lopez (2022) 78 Cal.App.5th 459, 466-467.)
Here, defendant had a right to be present at the hearing. (People v. Cutting (2019) 42 Cal.App.5th 344, 347-348 [Defendant's right to be present at imposition of sentence includes right to be present at resentencing hearing where the court has discretion to reconsider the entire sentence.]; People v. Basler (2022) 80 Cal.App.5th 46, 51, 59-60 [Defendant had a right to be present at a section 1172.6 evidentiary hearing because resolution might turn on disputed issues of fact on which defendant might have something to say.].) Thus, because defendant was not even offered the opportunity to be present at the hearing and at least waive that right, the matter is reversed and remanded for resentencing.
Moreover, the court erred in staying, rather than striking, defendant's prior serious felony and prior prison term enhancements. (Monroe, supra, 85 Cal.App.5th at p. 397 [trial courts have discretion to strike five-year serious felony enhancements]; ibid. [courts to strike certain prior prison term enhancements].) Furthermore, the court should conduct a full resentencing hearing, considering any other changes in the law, in its discretion, which could reduce defendant's sentence, eliminate disparity of sentences, or promote uniformity of sentencing in the interests of justice. (Monroe, at p. 399.)
On remand, the court should recalculate defendant's actual time served and custody credits. (People v. Buckhalter (2001) 26 Cal.4th 20, 23, 37; People v. Rojas (Aug. 31, 2023, B325493)___Cal.App.5th___[2023 Cal.App. LEXIS 667, *8] ["We accordingly remand so the trial court may calculate the correct credits in the first instance and prepare a new abstract of judgment."].) Finally, the court should correct the abstract of judgment to reflect that the jury convicted defendant on both counts on March 12, 1999. (People v. Odell (2023) 92 Cal.App.5th 307, 322.)
III. DISPOSITION
The resentencing order is reversed, and the matter is remanded for a full resentencing hearing consistent with the views expressed herein. We express no opinion as to whether defendant is entitled to any further sentence reductions.
WE CONCUR: MILLER J., CODRINGTON J.