Opinion
E072592
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. DIEGO BOCANEGRA, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1101476) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Reversed and remanded with directions. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In December 2011, defendant and appellant Diego Bocanegra, a 17-year-old minor at the time who was tried in adult court, was convicted of two counts of second degree robbery (Pen. Code, § 211) with the personal use of a firearm (§ 12022.53, subd. (b)) for the benefit of and association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). In January 2012, the trial court sentenced defendant to 19 years four months in state prison. In January 2019, pursuant to section 1170, subdivision (d), the secretary of the Department of Corrections and Rehabilitation (DCR) filed a letter in superior court recommending "recall of sentence and resentence" for defendant. The secretary also asked the court, in light of those convictions, to please consider amended section 12022.53, subdivision (h). Following a hearing, the trial court found that it was without jurisdiction to consider recalling and resentencing defendant and ordered no action be taken on the recommendation.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends that the matter must be remanded because the trial court misunderstood its discretion under section 1170, subdivision (d)(1), to recall and reconsider his sentence. He also argues that upon remand, recall, and resentencing, he is entitled to various other rights and procedures, such as (1) dismissal or modification of the firearm enhancements pursuant to amended section 12022.53; (2) to make a record of youth-related mitigating factors pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) for a later youth offender parole hearing, (3) a hearing in juvenile court pursuant to Proposition 57 and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), and (4) appointment of new, competent counsel. The People concede the matter should be remanded for the trial court to exercise its discretion as to whether to recall and resentence defendant but disagree with defendant's arguments concerning what should occur on remand, arguing defendant's claims are "premature" and any direction by this court would be "akin to an unwarranted advisory opinion."
We accept the People's concession that pursuant to section 1170, subdivision (d), remand is necessary for the trial court to determine whether to recall and resentence defendant. If the trial court chooses to recall and resentence defendant under amended section 12022.53, defendant is entitled to a full resentencing hearing and may assert any other rights and procedures he is entitled to. (See People v. Buycks (2018) 5 Cal.5th 857, 893-894 (Buycks).) Accordingly, we remand the case for the trial court to determine whether to recall and resentence defendant as recommended by the secretary of the DCR. In all other respects, we affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from the probation report.
On September 17, 2011, defendant and his codefendant robbed two disc jockeys who were performing at a party. Defendant pointed a revolver at the victims and took their laptop computers. During the robbery, defendant shouted out the name of his criminal street gang.
On December 20, 2011, a jury convicted defendant, a minor tried in adult court, of two counts of second degree robbery (§ 211; counts 1 & 2). The jury also found true that the robberies were committed with the personal use of a firearm (§ 12022.53, subd. (b)) for the benefit of and association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).
On January 20, 2012, the trial court sentenced defendant to 19 years four months in state prison as follows: the upper term of five years on count 1, plus a consecutive term of 10 years for the firearm enhancement attached to count 1; and a consecutive term of one year on count 2, plus a consecutive term of three years four months for the firearm enhancement attached to count 2. The trial court struck the sentence for the gang enhancements based on defendant's youthfulness and because nobody was harmed in the case.
On January 23, 2019, the secretary of the DCR filed a letter in superior court recommending a recall of sentence and to resentence defendant pursuant to section 1170, subdivision (d), and to consider the amendment to section 12022.53, subdivision (h), which became effective January 1, 2018. This letter explained that section 12022.53 "previously required a sentencing court to impose enhancements for personal use of a firearm in the commission of enumerated felonies. However, courts are now empowered with discretion to strike or dismiss a personal use firearm enhancement at sentencing or resentencing pursuant to PC [s]ection 1170, subdivision (d), in the interest of justice pursuant to PC [s]ection 1385." The secretary recommended defendant's "sentence be recalled and that he be resentenced." Attached to the recommendation was a "Cumulative Case Summary and Evaluation Report Pursuant to the Provisions of Penal Code Section 1170(d)" prepared by the Division of Adult Institutions. This case summary highlighted defendant's activities and certificates of achievements while in prison and noted defendant's prior juvenile and current adult criminal history. The case summary also commended defendant for giving back to the community, successfully completing voluntary programs, displaying maturity and growth, making positive changes in his life, and showing his commitment to change.
A hearing was held on April 19, 2019, to address the letter from the secretary. When addressing the letter, the court and the parties mistakenly believed the letter was from the Attorney General, and the court referred to the letter multiple times as being from the Attorney General. In discussing the propriety of recalling and resentencing defendant pursuant to section 1170, subdivision (d), the prosecutor directed the trial court to the case of People v. Fuimaono (2019) 32 Cal.App.5th 132 (Fuimaono), and argued Senate Bill No. 620, the legislation giving a court the discretion to strike a firearm enhancement, did not give the trial court the authority to resentence defendant. The court, in part considering Fuimaono, indicated that it did not believe the authority to strike the punishment for a gun enhancement was retrospective, and because the instant case was final on appeal, the court did not have jurisdiction to rehear the case or resentence defendant. When the trial court asked defendant's appointed counsel if he had "some reason why [it] should not agree with [the prosecutor's] interpretation," defense counsel replied, "I will submit, your Honor." Consequently, the court took no further action and directed that all prior orders in the case remain in effect.
On April 24, 2019, defendant's appointed trial counsel filed a timely notice of appeal.
On May 2, 2019, defendant's appointed appellate counsel filed an amended notice of appeal.
III
DISCUSSION
Defendant argues that the matter must be remanded because the trial court misunderstood its discretion under section 1170, subdivision (d)(1), to recall and reconsider his sentence, and that the trial court has jurisdiction to hear the secretary's recommendation. He also argues that upon remand for further proceedings on the secretary's recommendation and upon recall, the trial court should fully consider the postconviction factors laid out in the secretary's recommendation, as well as various other rights and procedures he is entitled to, such as: (1) dismissal or modification of the firearm enhancements pursuant to amended section 12022.53; (2) making a record of youth-related mitigating factors pursuant to Franklin, supra, 63 Cal.4th 261, for a later youth offender parole hearing, (3) a hearing in juvenile court pursuant to Proposition 57 and Lara, supra, 4 Cal.5th 299, and (4) appointment of new, competent counsel.
The People agree the matter should be remanded for the trial court to exercise its discretion as to whether to recall and resentence defendant because the trial court misunderstood its jurisdiction. The People however argue that defendant's arguments concerning what should happen if the court recalls and resentences him are "premature," as his sentence has not been recalled, he has not been resentenced, and any direction by this court would be "akin to an unwarranted advisory opinion." The People take no position as to whether defendant is entitled to appointment of new counsel on remand. For the reasons explained, we also agree that pursuant to section 1170, subdivision (d), remand is necessary for the trial court to determine whether to recall and resentence defendant as recommended by the secretary of the DCR.
In general, a trial court is without jurisdiction to change a criminal defendant's sentence once execution of the sentence has commenced. (People v. Karaman (1992) 4 Cal.4th 335, 344.) However, there are exceptions to this rule. First, "[t]he imposition of a sentence not statutorily authorized . . . is subject to correction whenever it comes to a court's attention." (People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) A sentence is unauthorized when it "'"could not lawfully be imposed under any circumstance in the particular case."'" (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)
The second exception relevant to this case is the trial court's power to recall a sentence under section 1170, subdivision (d)(1). That provision provides that the trial court "may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary [of the DCR] or the Board of Parole Hearings in the case of state prison inmates, the county correctional administrator in the case of county jail inmates, or the district attorney of the county in which the defendant was sentenced, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (§ 1170, subd. (d)(1), italics added.) Section 1170, subdivision (d)(1), further states, "The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under this paragraph may reduce a defendant's term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice. The court may consider postconviction factors, including, but not limited to, the inmate's disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate's risk for future violence, and evidence that reflects that circumstances have changed since the inmate's original sentencing so that the inmate's continued incarceration is no longer in the interest of justice. Credit shall be given for time served."
In this case, pursuant to section 1170, subdivision (d)(1), the secretary of the DCR filed a letter to the trial court recommending recall of defendant's sentence and to resentence defendant in light of amended section 12022.53. At the April 19, 2019 hearing to address the secretary's recommendation, the trial court and the parties mistakenly believed the letter was sent by the Attorney General. As such, the prosecutor and the court incorrectly relied on the case being final and on Fuimaono to determine the trial court lacked jurisdiction to recall defendant's sentence. It is clear from the language of section 1170, subdivision (d)(1), that the court may recall and resentence a defendant "at any time upon the recommendation of the secretary . . . ." (§ 1170, subd. (d)(1).) Therefore, whether 120 days have passed (the deadline for the court's own motion), or whether the commitment is final does not foreclose the trial court's jurisdiction if the secretary recommends a recall and resentencing.
Fuimaono involved a defendant filing a motion to be resentenced pursuant to Senate Bill No. 620 after his conviction was final. (Fuimaono, supra, 32 Cal.App.5th at p. 134.) The Court of Appeal held a sentencing court is without jurisdiction to vacate or modify a sentence "except pursuant to the provisions of section 1170, subdivision (d)." (Ibid.) The court explained, "An order made after judgment affecting a defendant's substantial rights is appealable. (§ 1237, subd. (b).) However, once a judgment is rendered, except for limited statutory exceptions (§§ 1170.126, 1170.18), the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170, subdivision (d). [Citation.] Section 1170, subdivision (d), allows a sentencing court on its own motion to recall and resentence, subject to the express limitation that the court must act to recall the sentence within 120 days after committing the defendant to prison. [Citation.] Indeed, 'the court loses "own-motion" jurisdiction if it fails to recall a sentence within 120 days of the original commitment. [Citations.]' [Citation.]" (Fuimaono, at p. 134.)
Fuimaono is distinguishable from the present matter as that case did not involve section 1170, subdivision (d)(1), or a letter from the secretary of the DCR recommending recall and resentence. As such, Fuimaono does not foreclose the trial court's jurisdiction to recall and resentence defendant in the instant situation.
Because the trial court mistakenly believed it did not have jurisdiction to recall and resentence defendant, we remand the matter to allow the trial court to exercise its discretion to recall and resentence defendant as recommended by the secretary of the DCR. If the trial court in its discretion recalls defendant's sentence and resentences defendant, we agree with defendant that under the "'full resentencing rule,'" the trial court may reconsider all sentencing choices, including whether to consider the postconviction factors laid out in the secretary's recommendation, exercise its discretion under section 1385 to strike or modify the firearm enhancements, to make a record of youth-related mitigating factors pursuant to Franklin, supra, 63 Cal.4th 261, and for a juvenile transfer/fitness hearing under Proposition 57. (See People v. Hubbard (2018) 27 Cal.App.5th 9, 12-13, citing Buycks, supra, 5 Cal.5th at p. 893 ["'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances'"].)
Defendant also asserts that he is entitled to appointment of new counsel on remand. In support, he argues that his previously appointed trial counsel did not argue applicable law, failed to correct the trial court's misunderstandings, and filed an incorrect notice of appeal, which was subsequently amended by appellate counsel.
A defendant has a fundamental right to be present and represented by counsel at any stage of a criminal proceeding that is critical to its outcome. (Rushen v. Spain (1983) 464 U.S. 114, 117; see People v. Rices (2017) 4 Cal.5th 49, 90; People v. Cunningham (2015) 61 Cal.4th 609, 633; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 465.) A proceeding is a "'"'critical stage'"'" when it is adversarial in nature and the absence of defendant or his counsel may cause significant prejudice. (People v. Rouse (2016) 245 Cal.App.4th 292, 297.) In Rouse, the Court of Appeal decided as a matter of first impression that a defendant's right to counsel attaches at a Proposition 47 postconviction resentencing hearing. (Id. at pp. 296-297, 300.) The court's reasoning was based in part on the settled proposition that "[s]entencing is a critical stage in the criminal process within the meaning of the Sixth Amendment." (Rouse, at p. 297, citing People v. Doolin (2009) 45 Cal.4th 390, 453.)
In addition, a criminal defendant has a constitutional right to the effective assistance of counsel. That right is satisfied in California by the statutory provision of counsel by the court. (§ 987; People v. Chavez (1980) 26 Cal.3d 334, 344.) The constitutional and statutory guarantees are not violated by the appointment of an attorney other than the one requested by the defendant. (Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934.) To the contrary, the appointment of counsel rests within the sound discretion of the trial court. (People v. Horton (1995) 11 Cal.4th 1068, 1098 (Horton); Drumgo, at pp. 934-935.) That discretion is not abused simply by the failure of a trial court to appoint the attorney that the defendant requested and who is willing to undertake the appointment. (Horton, at p. 1098; Drumgo, at pp. 933-934.) On the other hand, a trial court abuses its discretion by adhering to a fixed policy of appointing its "'own'" counsel in every case, without affording the defendant an opportunity to explain what circumstances, if any, might warrant a different appointment. (Horton, at p. 1098; Chavez, at pp. 346-348.) Moreover, the existence of compelling objective factors favoring appointment of a particular attorney, especially when coupled with the defendant's subjective wishes, may make the failure to appoint that attorney an abuse of discretion. (Harris v. Superior Court (1977) 19 Cal.3d 786, 799.)
Here, as explained, appointment of counsel rests within the discretion of the trial court. (Horton, supra, 11 Cal.4th at p. 1098.) As such, we may not direct the trial court to appoint new counsel for defendant upon remand. If defendant desires new appointed counsel on remand, assuming the same attorney is appointed, defendant may make a motion to appoint new counsel upon remand. If that attorney is appointed, defendant would have a remedy by means of a Marsden motion.
(People v. Marsden (1970) 2 Cal.3d 118.)
IV
DISPOSITION
The matter is remanded to allow the trial court to exercise its discretion to recall and resentence defendant as recommended by the secretary of the DCR. If the trial court in its discretion recalls defendant's sentence and resentences defendant, defendant is entitled to a full resentencing hearing, where the court may reconsider all its sentencing choices in light of changed circumstances. Upon resentencing, the clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the DCR. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.