Filed 10/13/17 P. v. Bonner CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Roger Earl Bonner, Jr., contends he had a right to be personally present at a hearing on his petition for resentencing brought pursuant to Penal Code section 1170, subdivision (d)(2),[1] and his absence from the hearing was prejudicial. Finding no prejudice, we will affirm the trial court’s order denying defendant’s petition for resentencing. Because we address defendant’s contentions on the merits, we do not address his alternative forfeiture contention regarding ineffective assistance.

BACKGROUND

In July 1995, when defendant was 17 years old, he and several others forced a woman into a car at gun point and raped her. Then, to prevent the victim from identifying him, defendant shot her in the head with his shotgun, killing her. (People v. Bonner (Sept. 22, 1998, C025826) [nonpub. opn.].) A jury convicted defendant of first degree murder, kidnapping and multiple forcible sexual offenses and the trial court sentenced him to life in prison without the possibility of parole (LWOP). (Ibid.)

Section 1170, subdivision (d)(2) permits a defendant who was under the age of 18 at the time he or she committed an offense resulting in an LWOP sentence to petition the trial court for resentencing to life with the possibility of parole after having been incarcerated for at least 15 years. (§ 1170, subd. (d)(2)(A)(i), (d)(2)(F).) Defendant had been incarcerated for more than 15 years when he filed such a petition. Pursuant to section 1170, subdivision (d)(2)(B), the petition asserted defendant was under 18 years old at the time of the crime and was sentenced to LWOP, it attached information regarding his remorse and his work towards rehabilitation, and it said he did not have any juvenile adjudications for assault or other felony crimes, he committed the murder with at least one adult codefendant, and he performed acts indicating rehabilitation or the potential for rehabilitation. The trial court determined defendant met his threshold burden and held a hearing on whether defendant should be resentenced.

Defendant was not present at the hearing, but his attorney presented evidence and argument at the hearing. No family members of the victim were present at the hearing.

The trial court reviewed and considered defendant’s petition and attachments, which included defendant’s statement of remorse and his work toward rehabilitation, written in defendant’s own hand, along with certificates of merit and completion regarding various educational courses. It also reviewed the abstract of judgment.

In addition, the trial court reviewed social worker reports. Those reports indicated defendant’s mother tried to give him up for adoption when he was approximately six months old. Defendant was filthy, underweight and appeared malnourished. The adoption plans fell through but mother did not return to pick defendant up, resulting in a report to child protective services. Defendant’s mother had a history of drug abuse and prostitution, with multiple criminal convictions.

A probation report said defendant was the product of a dysfunctional family and probably received little nurturing as a child. Defendant’s father had been released from prison for violating parole. There was no indication defendant had any relationship with his father. Defendant began smoking marijuana at age 14, using methamphetamine at age 15, and using phencyclidine when he was 16. He was suspended from school in ninth grade for truancy, he was dropped from the Model Alternative School for lack of attendance, and he was dropped from a continuation program in 10th grade. A probation officer said defendant was healthy and had no apparent physical disabilities.

The evidence further showed that defendant was a self-confessed gang member. Prior to the murder his juvenile record consisted of numerous shoplifting charges, truancy, curfew violations and a commercial burglary. While in custody in juvenile hall he battered another ward and verbally threatened staff and other wards. A supplemental petition for misdemeanor battery was sustained against him.

Moreover, the trial court reviewed defendant’s prison records, including his record of prison discipline. In prison defendant was disciplined for failing to report to class, failing to report to a job, possessing a cell phone, committing a battery on another inmate, participating in a riot, and fighting with another inmate.

Next, the trial court said: “I would agree with [the prosecutor], this is probably one of the most heinous crimes I’ve ever seen.” The trial court described the circumstances of the crime, including the kidnapping at gunpoint, the gang rape in a remote location, the victim pleading for her life, defendant shooting the victim in the arm with a shotgun, his statement “The bitch is still alive,” his placing the shotgun to the victim’s head and pulling the trigger a second time, tearing away portions of her brain, skull and hair.

The trial court also considered each of the statutory factors in section 1170, subdivision (d)(2)(F)[2] in light of the record and made the following findings:

(i) “And, again, if the defendant was convicted pursuant to felony murder or aiding and abetting, that was not the theory in the case. He was charged with special circumstance and as the -- the actual perpetrator of the crime.

“(ii), The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense.

“That would be yes and no. Some of his crimes were theft related; however, he did have a battery on another ward. That was a misdemeanor battery. So that -- that factor weighs both ways.

“(iii), three, The defendant committed the offense with at least one adult co-defendant. That particular prong is designed when an adult co-defendant would have a serious influence over a minor. I didn’t see that in this particular case. Certainly, [defendant] had a position of leadership in this particular crime. He was not told by other people to kill the victim. And -- and so I don’t find that -- even though there was one -- at least one other adult co-defendant, I do not find that that person put pressure or caused the defendant to actually commit the crime.

“(iv), Prior to the offense for which the sentence is being considered for recall, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress.

“Certainly, there’s been evidence provided by [defendant], and indicated in the probation report, that he had insufficient adult support.

“As far as psychological or physical trauma, I did not note any in the probation report. Probation report indicated that the defendant is healthy, does not require prescription medication, has no physical disabilities, and is able to work and be active.

“He was on juvenile probation at the time of this offense. He had been released from Juvenile Hall approximately five weeks earlier for burglary.

“He -- he had been ordered to attend AA meetings. He did indicate to the probation officer that he had been drinking since the age of fourteen, and he had been smoking marijuana since fourteen, and that he began using methamphetamine at fifteen.

“In addition, the Probation Department documented the fact that [defendant] was a self-confessed member of the Conway Gangsters.

“All right. Looking at factor number five, (v), The defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant’s involvement in the offense.

“Again, from the probation report and documentation that I reviewed, I do not find evidence of cognitive limitations due to mental illness, developmental disabilities.

“And as I mentioned, defendant at the time was a self-confessed member of Conway Gangsters.

“Number (vi), The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation.

“I do find that the defendant has availed himself to a number of programs. I do not find that those programs outweigh the numerous CDC 115s and disciplinary actions he’s received in prison.

“And then number -- number (vii), The defendant has maintained family ties or connections with others through letter writing, call, or visits, or has eliminated contact with individuals outside of prison who are currently involved with crime.

“Sounds -- [defense counsel] has represented that he’s made contact with his mother, [defendant] has.

“Number (viii), The defendant has no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor.

“To the contrary. There are a number of CDC 115s where [defendant] was determined to be the aggressor and was actually found guilty of fighting.”

Defendant’s counsel did not object to any of the trial court’s findings.

The trial court acknowledged defendant had engaged in self-improvement, had expressed remorse and had a better understanding of the effects of his actions. But the trial court ruled those efforts did not rise to a level that would justify granting the petition for resentencing, particularly given the nature of defendant’s offense and his prison disciplinary record. The trial court denied the petition.

DISCUSSION

Defendant contends he had a right to be personally present at the hearing and his absence from the hearing was prejudicial.

A criminal defendant has a constitutional right to be present at all critical stages of a criminal prosecution. (People v. Mendoza (2016) 62 Cal.4th 856, 898.) That right extends to sentencing proceedings (People v. Sanchez (2016) 245 Cal.App.4th 1409, 1414) and may extend to resentencing proceedings in certain circumstances. (In re Guiomar (2016) 5 Cal.App.5th 265, 278 (Guiomar); People v. Fedalizo (2016) 246 Cal.App.4th 98, 109; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1299; see also People v. Rouse (2016) 245 Cal.App.4th 292, 300.)

But here, even if defendant had a right to be present at the hearing, the People have met their burden in showing that any error was harmless beyond a reasonable doubt. (Guiomar, supra, 5 Cal.App.5th at pp. 278-279.)

The trial judge said defendant’s offense was one of the most heinous crimes the trial judge had ever reviewed. It then considered and made findings on each of the section 1170, subdivision (d)(2)(F) factors in light of the information submitted by defendant prior to the hearing and his counsel at the hearing. It found that defendant had a position of leadership in the murder, he was not told by other people to kill the victim, and he was on juvenile probation at the time of the offense. The trial court recognized defendant’s efforts at rehabilitation, but found those efforts did not outweigh his significant prison disciplinary record.

We do not discount the value of having the trial court observe defendant in person and listen to his additional testimony. However, evidence was presented, the victim’s family was not present, and the trial court made express findings and exercised its discretion, particularly noting defendant’s “heinous” crime and his ongoing history of prison violations and violence. On this record, we conclude any error in not having defendant present at the hearing was harmless beyond a reasonable doubt.

DISPOSITION

The trial court’s order is affirmed.

/S/

MAURO, J.

We concur:

/S/

BUTZ, Acting P. J.

/S/

HOCH, J.