BAMATTRE-MANOUKIAN, J. —
In March of 2014, petitioner John Manuel Guiomar entered into a plea agreement that resolved four cases and resulted in four convictions (one in each case). The trial court imposed a six-year aggregate sentence, comprised of a four-year term for robbery, a consecutive 16-month term for burglary, a consecutive eight-month term for failure to appear on a felony charge, and a concurrent two-year term for possession of a controlled substance.
In November of 2014, the electorate passed Proposition 47, which reclassified certain felony drug and theft related offenses as misdemeanors, including possession of a controlled substance and certain burglary offenses. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.)
In April of 2015, petitioner filed a petition for recall of sentence under Proposition 47. (See Pen. Code, § 1170.18, subd. (a).) The trial court granted the petition as to petitioner's convictions of burglary and possession of a controlled substance, designating those offenses as misdemeanors. The trial court then resentenced petitioner to another six-year aggregate term by imposing a six-year term for the robbery and a concurrent four-year term for the failure to appear.
In his petition for writ of habeas corpus, petitioner contends that the trial court lacked jurisdiction to increase the terms for his robbery and failure to
In a supplemental petition for writ of habeas corpus, petitioner contends he was denied the right to be present at his resentencing hearing and that his trial counsel was ineffective for failing to object to his absence at the resentencing hearing. Petitioner also contends that he received an unauthorized second strike sentence for his conviction of failure to appear on a felony charge, because the trial court had dismissed the strike allegation as to that count.
For reasons that we will explain, we reach the following conclusions. First, when a defendant's aggregate sentence includes multiple felony offenses, some of which are reduced to misdemeanors pursuant to Proposition 47, a trial court may resentence the defendant to increased terms for the remaining felony convictions, so long as the new aggregate sentence does not exceed the original aggregate sentence. Second, when a defendant is convicted of failure to appear on a felony charge, but the underlying felony charge is later reduced to a misdemeanor pursuant to Proposition 47, the trial court is not required to vacate the failure to appear conviction. Third, a defendant has the right to be present at a Proposition 47 resentencing hearing, but petitioner was not prejudiced in this case. Fourth, the trial court in this case imposed an unauthorized second strike sentence for petitioner's conviction of failure to appear on a felony charge. We will therefore grant habeas corpus relief by modifying petitioner's sentence.
In March of 2014, petitioner entered into a plea agreement that resolved four cases and resulted in four convictions (one in each case): (1) second degree robbery (Pen. Code, § 211;
The trial court imposed a six-year aggregate sentence pursuant to the plea agreement. The aggregate sentence was comprised of a four-year term for the
In April of 2015, petitioner filed a petition for resentencing under Proposition 47, indicating he was seeking reduction of his burglary conviction in case No. SS131649A. (See § 1170.18, subd. (a).)
At a hearing on May 6, 2015, at which petitioner was not present but was represented by counsel, the trial court granted the petition as to both the burglary and the possession of a controlled substance convictions, designating those offenses as misdemeanors and dismissing the strike allegation as to the burglary. The clerk's minutes reflect that the trial court then resentenced petitioner "pursuant to stipulation," imposing a six-year term for the robbery and a concurrent four-year term for the failure to appear.
On October 21, 2015, petitioner filed a petition for writ of habeas corpus in the trial court, raising sentencing issues. The trial court denied the petition, finding that petitioner had "consented, as a condition of his plea agreements in both cases, to waive his right to an appeal or any post-conviction writ review."
A. Jurisdiction to Resentence on Robbery and Failure to Appear Counts
Petitioner argues that when his convictions of burglary and possession of a controlled substance were reduced to misdemeanors pursuant to Proposition 47, the trial court was required to delete those terms from his six-year aggregate sentence, which would have reduced his sentence by 16 months. Instead, the trial court resentenced petitioner to the same aggregate six-year term it had originally imposed, by imposing a six-year term for the robbery instead of the original four-year term. Petitioner contends the trial court had
The Attorney General argues that petitioner should be estopped from challenging his sentence because he stipulated to the six-year robbery term. However, petitioner was not present at the resentencing hearing, and he contends his counsel was ineffective for failing to object when the trial court resentenced petitioner without reducing his aggregate sentence. Thus, in addressing petitioner's ineffective assistance of counsel claim, we would need to reach the merits of his claim that the trial court lacked jurisdiction to increase the terms for convictions not affected by the granting of his petition for recall of sentence. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1125-1126 [36 Cal.Rptr.2d 235, 885 P.2d 1] [reaching merits of waived issue because of defendant's claim that trial counsel was ineffective for failing to object].)
Further, as petitioner points out in his traverse, it is unclear whether the phrase "pursuant to stipulation" referenced in the clerk's minutes referred to the original stipulated sentence or a new stipulation entered by petitioner's counsel at the resentencing hearing. If the phrase "pursuant to stipulation" referred to the original stipulated sentence, petitioner is not barred from seeking modification of that sentence, because "by its plain language section 1170.18 applies to convictions by trial or plea." (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 651 [186 Cal.Rptr.3d 620]; see T.W., supra, at p. 651 ["the trial court erred by engrafting a plea agreement disqualifier into" § 1170.18]; Doe v. Harris (2013) 57 Cal.4th 64, 74 [158 Cal.Rptr.3d 290, 302 P.3d 598] ["the terms of the plea agreement can be affected by changes in the law"].) We proceed to consider the merits of petitioner's claim.
Two recent cases have held that a trial court has jurisdiction to resentence in a multiple felony count case following the granting of a section 1170.18 petition as to only some of the counts: People v. Sellner (2015) 240 Cal.App.4th 699, 701-702 [192 Cal.Rptr.3d 836] (Sellner) and People v. Roach (2016) 247 Cal.App.4th 178, 183 [202 Cal.Rptr.3d 1] (Roach). (See also People v. Cortez (2016) 3 Cal.App.5th 308, 317 [207 Cal.Rptr.3d 510] [trial court may "revisit all of its misdemeanor sentencing decisions" after granting a § 1170.18 petition]; People v. Rouse (2016) 245 Cal.App.4th 292, 300 [199 Cal.Rptr.3d 360].)
In Sellner, the defendant was originally sentenced on two counts in two separate cases. (Sellner, supra, 240 Cal.App.4th at p. 701.) Her sentence
In Roach, the defendant was originally sentenced on four felony counts in three separate cases. (Roach, supra, 247 Cal.App.4th at p. 182.) His aggregate four-year four-month sentence was comprised of a three-year principal term for possession of methamphetamine, consecutive eight-month subordinate terms for unlawful possession of a firearm and receiving stolen property, and a concurrent three-year subordinate term for reckless driving. (Ibid.) The trial court granted the defendant's Proposition 47 petition for resentencing as to the possession of methamphetamine conviction and the receiving stolen property conviction. The trial court resentenced the defendant on all four counts, so that the defendant's aggregate sentence was still four years four months, by imposing a three-year principal term for the reckless driving conviction, a consecutive eight-month subordinate term for the unlawful possession of a firearm conviction, and a consecutive eight-month jail term for the two counts that had been reduced to misdemeanors. (Roach, supra, at p. 182.) On appeal, the Roach defendant argued that "the trial court erred in resentencing him to the same aggregate sentence originally imposed on his convictions in three cases" rather than imposing "`an overall shorter sentence.'" (Id. at p. 183.) The Roach court disagreed, holding that "where a petition under section 1170.18 results in reduction of the conviction underlying the principal term from a felony to a misdemeanor, the trial court must select a new principal term and calculate a new aggregate term of imprisonment, and in doing so it may reconsider its sentencing choices." (Id. at p. 185.)
Petitioner argues that Sellner and Roach erroneously concluded that a trial court may resentence a defendant on convictions in "other cases" after granting a Proposition 47 resentencing petition. Petitioner notes that subdivision (n) of section 1170.18 provides: "Nothing in this and related
We also do not agree with petitioner that permitting a trial court to resentence him "in the manner in which it did" is inconsistent with the purpose of Proposition 47. A stated purpose of Proposition 47 was to "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes" (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70), but none of the stated purposes was to decrease aggregate sentences in all cases in which Proposition 47 relief was granted.
We note that in Sellner and Roach, the defendants' Proposition 47 petitions pertained to the convictions underlying the principal terms. In the instant case, the granting of petitioner's Proposition 47 petition did not affect the principal term, i.e., the four-year term imposed for the robbery conviction. Nonetheless, the trial court had jurisdiction to resentence petitioner on both the robbery conviction and the failure to appear conviction.
3. Ineffective Assistance of Counsel
Petitioner contends he received ineffective assistance of counsel at his resentencing hearing, because his counsel did not object to the increased terms for the robbery and failure to appear convictions, and in fact may have stipulated to the recalculated sentence.
In this case, even assuming that reasonable counsel would have objected at the resentencing hearing when the trial court increased the terms for the robbery and failure to appear convictions, petitioner has not shown prejudice. As we have explained, the trial court had jurisdiction to increase the terms for those convictions so as to arrive at the same aggregate term that it had originally imposed. Petitioner does not argue that if his trial counsel had objected, the trial court would have exercised its discretion and imposed a lower aggregate term. Petitioner therefore cannot prevail on his ineffective assistance of counsel claim.
B. Failure to Appear on a Felony
Petitioner next argues that his conviction of failure to appear on a felony charge (§ 1320.5) should be vacated because the underlying felony charge (possession of a controlled substance) was reduced to a misdemeanor pursuant to Proposition 47.
Petitioner points out that an element of section 1320.5 is that the person be "charged with or convicted of [the commission of] a felony," and he argues that the "predicate offense" was reduced to a misdemeanor and is now "a misdemeanor for all purposes" under section 1170.18, subdivision (k). Since there is no longer a felony on which he was required to appear, he claims his conviction cannot stand.
The Attorney General contends petitioner's claim is "foreclosed by the plain language" of section 1320.5, since at the time of petitioner's failure to appear, he was "charged with a felony." The Attorney General argues that it is "immaterial" that petitioner's ultimate conviction was for a felony.
C. Right to be Present at Resentencing Hearing
In his supplemental petition for writ of habeas corpus, petitioner contends he had a constitutional and statutory right to be present at the May 6, 2015 resentencing hearing. As we shall explain, since the trial court had jurisdiction to reconsider the entire sentence at that proceeding, petitioner is correct.
1. Procedural Bar
The Attorney General asserts that petitioner's claim is procedurally barred because he could have raised the issue on direct appeal following the resentencing hearing. (See In re Reno (2012) 55 Cal.4th 428, 490 [146 Cal.Rptr.3d 297, 283 P.3d 1181]; In re Harris (1993) 5 Cal.4th 813, 827 [21 Cal.Rptr.2d 373, 855 P.2d 391] (Harris) [petition for a writ of habeas corpus "`ordinarily may not be employed as a substitute for an appeal'"].) In response, petitioner argues that because he was denied the right to be present at the resentencing hearing, he was also effectively denied the right to file a timely appeal after that hearing. Petitioner points out that his trial counsel sent him a letter detailing the outcome of the resentencing hearing in September of 2015, which was well beyond the time in which petitioner could have filed a notice of appeal. As the Attorney General does not dispute that petitioner did not receive timely notice of the outcome of the resentencing hearing, we will proceed to consider the merits of petitioner's claim. (See Harris, supra, at p. 829 [court may consider a petition for writ of habeas corpus that is essentially a substitute for appeal where there are "special circumstances" excusing the petitioner's failure to appeal].)
We next address petitioner's claim that a violation of the right to be present at a resentencing hearing is structural error, such that he is entitled to a new
Petitioner contends the results of the May 6, 2015 resentencing hearing would have been different if he had been present because he could have given "input" on his rehabilitation. However, petitioner has not shown that he has been making efforts at rehabilitation, nor has he provided authority for his claim that rehabilitation is relevant once the trial court has made the decision to resentence. (Cf. § 1170.18, subd. (b)(2) [rehabilitation is relevant to a trial court's decision to deny a petition for resentencing because the petitioner poses an unreasonable risk of danger to public safety].)
Petitioner also asserts that his presence would have affected the trial court's "mistaken view" that it was required to impose the original six-year sentence. Petitioner has not provided a reporter's transcript of the resentencing proceeding. Thus, it is unclear whether the trial court believed it was required to reimpose the original stipulated six-year sentence or whether the phrase "pursuant to stipulation" referenced a new stipulation entered by petitioner's counsel at the resentencing hearing. Petitioner relies on comments by the same trial court in a different case (People v. Dunn (2016) 248 Cal.App.4th 518 [203 Cal.Rptr.3d 747]), but that case is inapposite, because it involved denial of a Proposition 47 petition rather than a resentencing.
In sum, the violation of petitioner's right to be present at the resentencing hearing was harmless beyond a reasonable doubt.
D. Imposition of Second Strike Sentence for Failure to Appear
Petitioner contends he received an unauthorized second strike sentence for the failure to appear conviction: a concurrent four-year term — i.e., the two-year midterm, doubled. The Attorney General concedes that the trial court erred in this respect.
When petitioner pleaded guilty to failure to appear on a felony charge, a strike allegation was dismissed as to that count. At the same time, petitioner
At the Proposition 47 resentencing hearing held on May 6, 2015, the trial court imposed a concurrent doubled term of four years for petitioner's conviction of failure to appear on a felony charge. The clerk's minutes do not indicate that the People sought to reinstate the strike allegation as to the failure to appear conviction, and it does not appear that the People moved to withdraw from the original plea bargain. Thus, the trial court imposed an unauthorized sentence when it doubled the term for petitioner's failure to appear conviction.
As to the claims raised in the original petition for writ of habeas corpus, we deny relief. As to the claims raised in the supplemental petition for writ of habeas corpus, we find that petitioner is entitled to relief on his claim that the trial court erroneously imposed a second strike sentence for his conviction of failure to appear on a felony charge.
We therefore order petitioner's sentence modified to reflect a two-year term for the conviction of failure to appear on a felony charge. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
Elia, Acting P. J., and Mihara, J., concurred.